INTRODUCTION TO THE DOCTRINE OF PROCEDURAL FAIRNESS 3

THRESHOLD AND CONTENT OF PROCEDURAL FAIRNESS 4

HISTORICAL BACKGROUND AND EMERGENCE OF “FAIRNESS” 4BAKER SYNTHESIS FOR DETERMINING CONTENT OF PF 8LIMITATIONS ON AND EXCEPTIONS TO APPLICATION OF PF 8NON-FINAL DECISIONS (PRELIMINARY OR INVESTIGATORY PROCESSES) 9“LEGISLATIVE AND GENERAL DECISIONS” AND POLICY DECISIONS 10EMERGENCY DOCTRINE 13LEGITIMATE EXPECTATIONS DOCTRINE 13

CONSTITUTIONAL / QUASI-CONSTITUTIONAL GUARANTEES OF PF (BILL OF RIGHTS & CHARTER) 19

CHARTER SS. 7, 1, 52 19BILL OF RIGHTS SS. 1(A), 2(E) 19

SPECIFIC PROCEDURAL ISSUES 32

SPECIFIC CONTENT PRE-HEARING: NOTICE, DISCOVERY, DISCLOSURE 32SPECIFIC CONTENT AT HEARING STAGE 36ORAL OR WRITTEN HEARINGS 36RIGHT TO COUNSEL 38DISCLOSURE OF THE CASE AGAINST 40EVIDENCE AND CROSS-EXAMINATION 41POST HEARING ISSUES: DUTY TO GIVE REASONS? 43PROCEDURE AND THE ATA 45SUMMARY OF KEY ASPECTS OF THE ATA 45ATA 45

BIAS AND IMPARTIALITY AS GROUNDS FOR CHALLENGE UNDER PF 45

GENERAL PRINCIPLES AND BASIC TEST FOR ROAB 47SPECIFIC EXAMPLES OF INDIVIDUAL BIAS ISSUES 48PECUNIARY OR OTHER MATERIAL INTERESTS IN THE OUTCOME 49PERSONAL OR BUSINESS RELATIONSHIPS WITH THOSE INVOLVED IN THE DISPUTE 49PRIOR KNOWLEDGE OR INVOLVEMENT AT EARLIER STAGES 50ATTITUDINAL PREDISPOSITION (PRE-JUDGMENT) AND DIFFERENT CONTEXTUAL STANDARDS 51STATUTORY AUTHORIZATION DEFENCE 54

1

TABLE OF CONTENTS

PROCEDURAL FAIRNESS

INTRODUCTION TO THE DOCTRINE OF PROCEDURAL FAIRNESS 5

THRESHOLD AND CONTENT OF PROCEDURAL FAIRNESS 5

HISTORICAL BACKGROUND AND EMERGENCE OF “FAIRNESS” 5PROCEDURAL RIGHTS 7Mavi 7Bates v Lord Hailsham (1972) 8Cardinal (1985) 8Knight (1990) 8Nicholson v Haldimand 8Dunsmuir (2008) 9BAKER SYNTHESIS FOR DETERMINING CONTENT OF PF 9Baker 9Canada v Mavi 9LIMITATIONS ON AND EXCEPTIONS TO APPLICATION OF PF 9SUMMARY FROM MARK! 9NON-FINAL DECISIONS (PRELIMINARY OR INVESTIGATORY PROCESSES) 10RE Dairy Producers Cooperative & SK Human Rights Commission 10“LEGISLATIVE AND GENERAL DECISIONS” AND POLICY DECISIONS 11Canada v Inuit Tapirisat 12Homex Reality v Wyoming (1980) 13Lafontaine (2014) 13CPR v Vancouver (2006) 13Vancouver Island Peace Society v Canada (1994) FC 14Cdn Association of Regulated Importers (CHICKENS!) 14EMERGENCY DOCTRINE 14Cardinal (SCC 1985) 14POLICY MAKING AND BROAD DISCRETIONARY POWERS 14LEGITIMATE EXPECTATIONS DOCTRINE 15Summary of Key Points 15Old St. Boniface (1990 SCC) 15RE Canada Assistance Plan (SCC 1991) 16Mount Sinai Hospital (SCC 2001) 17CUPE v Minister of Labour (SCC 2003) 19Canada v Mavi (SCC 2011) 19Agraira v Canada 20

CONSTITUTIONAL / QUASI-CONSTITUTIONAL GUARANTEES OF PF (BILL OF RIGHTS & CHARTER) 20

CHARTER SS. 7, 1, 52 21BILL OF RIGHTS SS. 1(A), 2(E) 21Authorson v Canada (SCC 2003) 21Singh v Canada (SCC 1985) 23New Brunswick v J.G. (SCC 1999) 25Suresh v Canada (2002) 26Charkaoui v Canada (SCC 2007) 27Charkaoui II (SCC 2008) 29Blencoe v BC (SCC 2000) 30Wareham v Ontario Ministry of Community and Social Services (ONCA 2008) 31

2

FRAMEWORK FOR S.7 ANALYSIS 31

SPECIFIC PROCEDURAL ISSUES 33

SPECIFIC CONTENT PRE-HEARING: NOTICE, DISCOVERY, DISCLOSURE 33NOTICE 33FORM OF NOTICE 33Residential Tenancy Act 34Adoption Act 34Forest Practices Legislation 35ATA 35DISCLOSURE / DISCOVERY 35May v Ferndale Institution (2005) 37SPECIFIC CONTENT AT HEARING STAGE 37ORAL OR WRITTEN HEARINGS 37Khan v University of Ottawa 38WILL HEARING BE OPEN? 38Millward v Canada (1974 FCJ) 39Pacific Press (1991) 39RIGHT TO COUNSEL 40NB Minister of Health 40Howard v Stony Mountain Institution 41Men’s Clothing Manufacturer’s Association of Ontario 41Irvine v Canada (Restrictive Trade Practices Commission) 41DISCLOSURE OF THE CASE AGAINST 41Kane v Board of Governors of UBC (SCC 1980) 42EVIDENCE AND CROSS-EXAMINATION 43Pritchard (2004 SCC) 43POST HEARING ISSUES: DUTY TO GIVE REASONS? 44Baker 44Via Rail v National Transportation Agency 45Suresh 45Newfoundland and Labrador Nurses’ Union 46PROCEDURE AND THE ATA 46SUMMARY OF KEY ASPECTS OF THE ATA 46ATA 46

BIAS AND IMPARTIALITY AS GROUNDS FOR CHALLENGE UNDER PF 47

BACKGROUND TO BIAS 47PURPOSE OF RULE AGAINST BIAS 48GENERAL PRINCIPLES AND BASIC TEST FOR ROAB 48ABSENCE OF ACTUAL BIAS NOT ENOUGH: ROAB 48DEFINITIONS AND STANDARDS 48STANDARD TEST FOR RAOB 49FLEXIBILITY IN RAOB STANDARD: 49ALTERNATE TESTS FOR RAOB 49Baker 49R v S.(R.D.) 50Imperial Oil Ltd. v Quebec 50SPECIFIC EXAMPLES OF INDIVIDUAL BIAS ISSUES 50PECUNIARY OR OTHER MATERIAL INTERESTS IN THE OUTCOME 50Energy Probe v Canada 50Pearlman v Manitoba Law Society 50PERSONAL OR BUSINESS RELATIONSHIPS WITH THOSE INVOLVED IN THE DISPUTE 51

3

Bennett and Doman 51PRIOR KNOWLEDGE OR INVOLVEMENT AT EARLIER STAGES 51Committee for Justice and Liberty 51Wewaykum Indian Band v Canada 52ATTITUDINAL PREDISPOSITION (PRE-JUDGMENT) AND DIFFERENT CONTEXTUAL STANDARDS 52R. v RDS 52Newfoundland Telephone Co. v Newfoundland 53Chretien v Canada 53ANIMOSITY 54INSTITUTIONAL / STRUCTURAL BIAS 54LEGAL EFFECT OF BIAS 55DEFENCES TO BIAS 55STATUTORY AUTHORIZATION DEFENCE 55CUPE v Ontario 55NECESSITY 56WAIVER 56LACK OF INDEPEDENCE 56INDIVIDUAL INDEPENDENCE 56INSTITUTIONAL INDEPENDENCE 56

ABORIGINAL ADMINISTRATIVE LAW PRELIMINARY POINTS 57OVERARCHING QUESTIONS 58FRAMEWORKS 58ABORIGINAL RIGHTS: PROOF AND INFRINGEMENT 58DUTY TO CONSULT 58Rio Tinto 58CONTENT OF DUTY 58Haida 58DUTY TO CONSULT VS PROCEDURAL FAIRNESS 59CAN ADM CONSIDER DUTY TO CONSULT? 59TYPES OF LEGISLATIVE DEICSIONS 60Little Salmon 60

4

PROCEDURAL REVIEW

INTRODUCTION TO THE DOCTRINE OF PROCEDURAL FAIRNESSSources of Procedural Rights:• Common law• Statutes• Regulations• Agency practices and policies (LED)• Canadian Bill of Rights• Charter of Rights

Procedural Fairness Analysis:1. Threshold Test (Cardinal, Knight, Mavi) 2. Baker Factors (5):

a. Nature of the decisionb. Nature of the statutory scheme c. Importance of the decision to the individual affectedd. Legitimate expectations of the person challenging the decisione. Choices of procedure made by the agency itself

THRESHOLD AND CONTENT OF PROCEDURAL FAIRNESS

HISTORICAL BACKGROUND AND EMERGENCE OF “FAIRNESS”

(1) The Concept of “ Natural Justice ”: NJ has two primary principles or aspects:

o (i) audi alteram partem (hear the other side): which generally entails a right to notice and a right to be heard; and

o (ii) nemo judex in sua causa (no one should be a judge in his/her own cause): the rule against bias

(2) Early English Common Law : Hearing rights were generally inferred as a matter of justice, when important rights of an individual were being

affected by the decision or action at issue, especially if allegations of “wrongdoing” of any kind were at issue e.g. Cooper v. Board of Works for Wandsworth District (1863)

(3) Later Common Law : Restrictions on access to hearing rights arose in the 20th century (1920 – 1960) Common law focused on the classification of the function or decision being carried out:

o Judicial or quasi-judicial decisions vs. administrative/executive/ministerial decisionso Judicial / quasi judicial: natural justice applied, hearing rights accorded, certiorari and prohibition were

available o Administrative: natural justice did NOT apply, NO hearing rights accorded , certiorari and prohibition were

NOT available Elaboration of the “Restrictive Approach” (1920 – 1960s)

o Lord Atkin in Electricity Commissioners [1924 Eng. C.A.]: o “Whenever any body of persons, having legal authority to determine questions affecting the rights of

subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the

5

controlling jurisdiction of the King’s Bench division…” [the “control” being exercised through the writs of certiorari and prohibition]

o Lord Hewart in Church Assembly [1928, K.B. (Eng)] interpreted Lord Atkin’s pronouncement in Electricity Commissioners to mean that, for natural justice to apply, the decision in question had to:

i. Determine rights and ii. Involve a “superadded duty” to act judicially in making the decision

o Natural justice did not apply if:i. Decision was not a final decision (not “determinative”)

ii. Decision involved only “privileges” (as opposed to “rights”)iii. No “superadded duty” to act judicially was found in the statute

The approach was “all or nothing” and depended on classifications that were difficult, uncertain, and restrictive

(4) English common law “undid” the restrictions of Church Assembly in Ridge v. Baldwin (1964) and moved toward recognition of a “duty of fairness”

Ridge v. Baldwin: Chief Constable was a public office-holder who could not be dismissed except for cause. The House of Lords held that the Watch Committee [police board] could not exercise its power to dismiss lawfully

unless it had given the Chief Constable notice of the grounds for dismissal and an opportunity to be heard. HL did away with the need to find a “superadded duty to act judicially” before NJ could apply. Rather, the Watch Committee had a duty to act judicially because of the nature of the power being exercised. Re H.K. 1967 (Q.B.) held, immigration authorities have a “duty to act fairly” in making decisions about individuals

(5) Expansion of Procedural Obligations : Canadian adoption of the “Duty of Fairness” in Nicholson (SCC 1979): • A “duty of fairness” applies to dismissal of a police officer who SCC determined could only be dismissed for cause. • Nicholson seemed to imply that the duty of fairness was a “half-way house” – something lesser than Natural Justice –

and that NJ would apply in some situations and a “duty of fairness” in others.• Laskin cited from Bates v. Lord Hailsham [1972]: “in the sphere of the so-called quasi-judicial the rules of natural justice

run, and in the administrative or executive field, there is a general duty of fairness”

(6) Further development in 1980s towards the Modern Approach to Procedural Fairness gradually did away with the need to distinguish between Natural Justice and a “duty of fairness” (unless statute law requires that the distinction be made by use of the older classification terminology)

Martineau (No.2) (SCC 1980) o Minority concurring opinion: “In general courts ought not to distinguish between Natural Justice and the duty of

fairness, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.”

Cardinal (SCC 1985)o “This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying

in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual.

o ...denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.”

(7) SCC decision in Knight (1990) sets out basic elements of Modern Approach to determining when Procedural Fairness applies:

Knight (SCC 1990) L’Heureux-Dube: ..not all administrative bodies are under a duty to act fairly. Over the years, legislatures have transferred to administrative bodies some of the duties they have traditionally performed.

o Decisions of a legislative and general nature can be distinguished in this respect from acts of a more administrative and specific nature, which do not entail such a duty ...

o The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect

(8) L’Heureux-Dube J. in Baker (SCC 1999): “The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is

sufficient to trigger the application of the duty of fairness.” 6

Baker case provides a five factors test to determine the content of procedural fairness:1. Nature of the decision2. Nature of the statutory scheme 3. Importance of the decision to the individual affected4. Legitimate expectations of the person challenging the decision5. Choices of procedure made by the agency itself.

PROCEDURAL RIGHTS

Two main issues:1. Threshold Question: When will courts determine that decision requires procedural rights?2. Content Question: If procedural rights are required, what should they consist of?

• Notice?• Opportunity to make submissions?• Oral or written submissions?• Right to be represented by legal counsel?• Cross-examination?• Disclosure of information?

BATES V LORD HAILSHAM (1972)There is no implied right to be consulted re legislation

Challenge to order under the Solicitors Act that abolished a fee tariff Main ground for JR was that the rule-making body acted improperly in failing to engage in wider consultation among

those affected (practicing lawyers) before making the change to the tariff Application was dismissed on ground that neither NJ or fairness applies to "the process of legislation, whether primary

or delegated”

CARDINAL (1985)

The extent to which procedural requirements are imposed in the prison setting must be approached w caution, but… “there is, as a general CL principle, a duty of procedural fairness lying on every public authority making an

administrative dec which is not of a legislative nature & which affects the rights, privileges, or interests of an indv.” Denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a

reviewing court that the hearing would likely have resulted in a different decision.

KNIGHT (1990) L’Heureux-Dube: “… not all administrative bodies are under a duty to act fairly…Decisions of a legislative and general

nature can be distinguished in this respect from acts of a more administrative and specific nature….The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect.”

NICHOLSON V HALDIMANDCanadian adoption of the Duty of Fairness

A “duty of fairness” applies to dismissal of a police officer who SCC determined could only be dismissed for cause. Seemed to imply that duty of fairness was a “half-way house” – something lesser than Natural Justice – and that NJ

would apply in some situations and a “duty of fairness” in others. Quoted Bates v. Lord Hailsham [1972]: in the sphere of the so-called quasi-judicial the rules of natural justice run, and in

the administrative or executive field, there is a general duty of fairness”

Questions arising in the wake of Nicholson: What is the threshold for PF? Will all “administrative” decisions pass it? What is the content of PF? What is the effect of Nicholson on the distinction between judicial and administrative? No longer marks the

threshold, but does it mark a distinction between NJ and PF? Should there be more deference to ADMs on procedures? 7

See also SCC comments in Dunsmuir [86-87]

DUNSMUIR (2008) [79] Procedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are

required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. Thus stated the principle is easy to grasp. It is not, however, always easy to apply.

[90] From these foundational cases, procedural fairness has grown to become a central principle of Canadian administrative law. Its overarching purpose is not difficult to discern: administrative decision makers, in the exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals.

[115] Duty of fairness may apply where a public employee is not protected by a contract of employmento [116] Or when a duty of fairness flows by necessary implication from a statutory power governing the

employment relationship

Whether and what type of procedural requirements result from a particular statutory power will of course depend on the specific wording at issue and will vary with the context (Knight, at p. 682)

o [117] In this case, appellant was a contractual employee of the respondent in addition to being a public office holder. Section 20 of the Civil Service Act provided that, as a civil servant, he could only be dismissed in accordance with the ordinary rules of contract.

o In these circumstances it was unnecessary to consider any public law duty of procedural fairness. The respondent was fully w/i its rights to dismiss A with pay in lieu of notice without affording him a hearing…

o The appellant was protected by contract and was able to obtain contractual remedies in relation to his dismissal. By imposing procedural fairness requirements…over and above its contractual obligations and ordering the full “reinstatement” of the appellant, the adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down by the Court of Queen’s Bench.

BAKER SYNTHESIS FOR DETERMINING CONTENT OF PF

BAKERL’Heureux-Dube: [20] The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient

to trigger the application of the duty of fairness [21] “the concept of procedural fairness is eminently variable and its content is to be decided in the specific

context of each case” (citing Knight) All of the circumstances must be considered in order to determine the content of the duty of procedural fairness

MAVI Minimal level of PF at common law was held to attach because the Crown was found to have a narrow discretion

to defer or structure debt payments based on the personal circumstances of the sponsor PF in this context required notice & right to make submissions re personal circumstances, but no duty to give reasons LED doctrine was also invoked successfully to support the procedural claim with the LE arising because of wording in

the undertakings signed by the sponsors at the Crown’s behest

Legitimate Expectations [72 – 75]• “Given the legitimate expectations created by the wording of these undertakings I do not think it open to the

bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures.”

• “There is no hearing and no appeal procedure but there is a legitimate expectation that the government will consider relevant circumstances in making its enforcement decision and a duty of procedural fairness to do so.”

• “However, the wording of the government’s representations in the undertaking are sufficiently vague to leave the government’s choice of procedure very broad.”

• “Clearly no promises are made of a positive outcome from the sponsors’ point of view.”

Content requirements: [79] met for all of the respondents.8

a) Notify a sponsor at his or her last known address of the claimb) Afford the sponsor opportunity w/i limited time to explain in writing his or her relevant personal and financial

circumstances that are said to militate against immediate collectionc) Consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the

essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first placed) Notify the sponsor of the government’s decisione) NO need to provide reasons.

LIMITATIONS ON AND EXCEPTIONS TO APPLICATION OF PF

Duty of Fairness will apply less fully or not at all to:1. Non-Final Decisions (Inspections, Recommendations, Inquiries)2. Legislative and General Decisions3. Emergency Doctrine4. Policy Making and Broad Discretionary Powers

SUMMARY FROM MARK!Principles from the cases:

1. PF does not attach to statutory enactment or primary legislation-making (Inuit Tapirisat).

2. PF does not normally attach to other types of “legislative & general decisions” (Inuit Tapirisat). This likely includes most types of regulation-making, at least when regulations (or subordinate legislation at issue) is “general” in nature.

3. But if a legislative decision can be said to be specifically targeted at a particular person, then the decision might be considered legislative in form, but not in substance, and PF may attach. This at least seems to be the case in municipal bylaw-making (Homex, LaFontaine).

4. On the other hand, just because a small, identifiable subset of the population is affected by a broad, policy-based decision does not necessarily make it targeted, and thus not “legislative and general” in substance (Regulated Importers).

5. But if non-targeted dec overwhelmingly affects one person more than others, PF may attach (CPR, Catalyst Paper)

6. It is unclear how small the group or deliberate governmental action against group must be before otherwise legislative & general decision might lose characterization & be subject to PF as “administrative dec” (CPR, LaFontaine).

7. There appears to be decreasing importance, at least with respect to municipal law-making, as to whether something is “legislative” or not in answering the threshold question: CPR, LaFontaine. The legislative context nonetheless affects the content question: CPR, LaFontaine.

8. It is also unclear whether “legislative” and “general” are synonymous.

9. In cases of “legislative and general” decision-making, it seems that opportunities to have notice and to comment are more likely to come about b/c of express statutory provisions or governmental practices that provide for such processes.

10. In some cases, a government or agency practice of notice and consultation could potentially give rise to arguments that those procedures must be followed (and can be imposed by courts in judicial review) based on “legitimate expectation” – we will discuss this later.

11. The more final and determinative a decision, the greater the claim for PF. Yet, even preliminary decisions may attract PF.

12. A preliminary decision will likely require PF where:1. There is an important issue at stake, i.e., the non-final decision will have an adverse effect (e.g. loss of reputation)

on a person even though it does not determine the person’s rights, interests, or privileges; or

9

2. There is proximity or a close nexus between the non-final decision and the final decision to which PF would attach in the sense that the non-final decision “effectively determines” the final one. Purely “embryonic” procedures where there is no important interest and the investigatory stage is not proximate to the final decision (where PF will flow) will not normally attract PF.

NON-FINAL DECISIONS (PRELIMINARY OR INVESTIGATORY PROCESSES) Review the statutory regime carefully to see where the decision at issue fits within the overall scheme of the legislation Some types of decisions will not attract PF if they are:

Only steps along the way to a decision Not ultimately conclusive (e.g. just a recommendation to the ultimate decision-maker) Just fact-finding efforts that will not decide guilt/innocence or culpability (e.g. inquiries)

RE DAIRY PRODUCERS COOPERATIVE & SK HUMAN RIGHTS COMMISSION (1994 SKQB)• Human Rights Commission appointed investigator to determine whether there was an adequate basis for appointing a

board of inquiry following allegation of sexual harassment• Company wanted full details of complaint, but was not provided them (initially)• Investigator reported findings that there was “probable cause” to believe harassment occurred• The Commission attempted to “settle” the complaint but was unsuccessful• In the settlement discussions, the company was provided with the full details of the complaint• After settlement discussions failed, the Commission appointed a Board of Inquiry to formally adjudicate the complaint• Company sought to have the investigator’s report and the appointment of the Board of Inquiry struck down based on

failure to disclose full details of the complaint

HRC Process:Complaint↓Officer Investigation↓If “probable cause” – Commission attempts to settle ↓If not settled, Board of Inquiry appointed to adjudicate complaint through quasi-judicial hearing↓Ruling by Board of Inquiry

Outcome• Investigative effort is not intended to be like a judicial proceeding – it’s only preliminary• HRC not obliged to follow all formal natural justice requirements at this stage• However, procedural fairness requires that the party complained of be advised on the “substance of the complaint”

and “a fair summary of the relevant evidence”• Opportunity to respond must also be given at this stage• Process is analogous to a Prosecutor determining whether criminal charges are justified• In agreeing to enter settlement process, co. waived its right to complain about Investigator’s process – clearly knew

substance of complaint against it.

“LEGISLATIVE AND GENERAL DECISIONS” AND POLICY DECISIONS• What is a “Legislative Decision?”

– SCC has not fully explained this concept (text, p.156)– It applies to all primary legislation passed by Parliament/Legislatures– “Proceedings in Parliament ought not to be impeached in any Court”– “Legislative decision making is not subject to any known duty of fairness”– “Legislatures are subject only to constitutional requirements”– “The wisdom and value of legislative decisions are subject only to review by the electorate”– “The separation of powers between the legislature and the courts demands it.” Do you agree? Why or why

not?10

• Does the exemption cover subordinate legislation made by Cabinet?– These are not subject to the scrutiny or due process of Parliament

• Are all Cabinet decisions “Legislative”?• What about Ministerial decisions?

– “a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection” (Martineau)

• Factors include:– Broad policy and political nature of decision– Diffuse impacts to broad groups vs. specific and harsh impacts on an individual (but see Idziak case –

discussed on p.158)• What about municipal governments?

– Homex case says courts will focus on the substance on the issue, not mere fact of municipality using bylaw-making power

– Catalyst Paper v. North Cowichan says municipalities makes both quasi-judicial and legislative decisions, and different considerations apply

– CPR v. Vancouver & Lafontaine affirm that duty of fairness is owed, even in bylaw-making functions– Pay attention to PF threshold vs. PF content issues in these cases– There are many cases in which courts strike down bylaws for failure to follow fair procedure (e.g. improper

notice, failure to fully disclose all of the information that would inform people about a zoning bylaw change before a public hearing, etc.)

– Many of these cases turn on the express statutory requirements, but there are often judgment calls as to what constitutes compliance with statutory requirements, and broader fairness factors

• What is a “General Decision?”– Not clear, but seems to connote broad policy decisions that are “inherently political” – but what does that

mean?– Imperial Oil v. Quebec: minister’s authority to exercise powers to require remediation of contaminated site at

its own expense– Critique:– Does the Legislative & General Decision doctrine perpetuate the old days of categorization?– Do courts use it to avoid scrutinizing decisions they don’t want to by labeling them “legislative and general”

or matters of pure politics and broad policy?– See text p.161

CANADA V INUIT TAPIRISATFacts:

• Bell Canada is a telephone company (public utility)• The Canadian Radio-telephone and Telecommunications Commission (CRTC) regulates utilities –e.g. Bell must apply

to the CRTC for approvals in order to increase the rates it charges• The CRTC holds a public hearing process. The Inuit Tapirisat “intervened” to ask the CRTC to require improved

service to remote northern Canadian communities as a condition of a rate increase• The CRTC did not agree to the Inuit Tapirisat’s wishes• The legislation allowed for an appeal to Cabinet, and the Inuit appealed

Process:• Inuit Tapirisat appealed CRTC decision to Cabinet• The CRTC made a submission to Cabinet through the federal department of Communications• Bell Canada also made a submission• The Department summarized the positions of the parties and stated its opinion on disposition of the appeal• The Inuit Tapirisat were not provided with any of this material, except for the Bell Canada submission• After an unfavourable decision, the Inuit applied to Federal Court for a declaration that a hearing should have been

granted• Government sought an order dismissing the action for “no reasonable cause of action”

Legislation: (National Transportation Act)64. (1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or

company interested, or of his own motion, and with-out any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such

11

regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties.Inuit Tapirisat Submission:

(a) that the Governor in Council acting under s. 64 is a quasi-judicial body or at least owes the respondents a duty of fairness;

(b) the duty includes disclosure to the respondent of submissions received from the CRTC;(c) the respondents have the right to answer Bell Canada if it has introduced some new aspect or submission;(d) the very minimum requirement is that the actual written submissions of the petitioners (respondents) must be

placed before the Council and not a summary thereof prepared by officials;(e) the Governor in Council is required by s. 64 to give notice to all "parties" even if it moves on its own initiative (as

the subsection authorizes it to do) so as to give prior notice to all those who may be affected by the rules to be established by the Governor in Council.

SCC Held:• Parliament has in s. 64(1) not burdened the executive branch with any standards or guidelines in the exercise of its

rate review function. Neither were procedural standards imposed or even implied. • The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with

the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature.

• GIC power to vary or rescind CRTC ruling “of his motion” = “legislative action in its purest form”• Although Cabinet once held oral hearings for appeals, modern government and complexity & size of Canadian society

makes this impractical• Maxim “audi alteram partem…will not be applied in every case”• the supervisory power of s. 64…is vested in members of the Cabinet in order to enable them to respond to the

political, economic and social concerns of the moment.• there is no need for the Governor in Council to give reasons for his decision, to hold any kind of a hearing, or even to

acknowledge the receipt of a petition• It is not the function of this Court…to decide whether Cabinet appeals are desirable or not.

SCC reasoning:• Parliament established CRTC and set out procedures for its hearings• Also allowed broad powers for Cabinet to intervene, on its own or when petitioned – recognizing political nature of • Parliament did not require Cabinet to follow CRTC procedures• Sheer breadth of Cabinet’s authority is evidence that Cabinet’s discretion “is complete”• Government couldn’t function if Cabinet held to same procedural standards as CRTC

Law Reform:Later amendments to the Broadcasting Act limited Cabinet’s discretion

HOMEX REALITY V WYOMING (1980)Involves Bylaw-making power:

• Dispute between developer and municipality over who pays to install services in subdivision• Municipality passed bylaw “deeming” this particular subdivision plan not to be a “registered plan” without any notice

to developer• Legislation did not require notice of bylaw• Lots could not be sold• Would require new application to municipality, through approval in which municipality could impose conditions

• Is this a “legislative decision” to which the duty fairness does not apply?• Is it a “general” or “policy” decision regarding who should pay for subdivision services?• Is this a “public interest” issue?• Or is it a decision that affects the rights, privileges & interests of a specific party?• SCC said:

– Bylaw decision was not fundamentally “legislative” in nature – Private property interests at stake– Decision was essentially a private dispute between the developer and municipality (inter partes)– audi alterum partem applies

12

LAFONTAINE (2014) SCC in 5:4 decision said LaFontaine owed PF duty to consider applications in good faith, not act arbitrarily, and

provide reasons that justify its decision. No real discussion of LGD doctrine.

Facts: Jehovah’s Witness church looking for land on which to build in Village of LaFontaine, Quebec. Couldn’t find any land that was zoned for church, so made offers to purchase subject to successful rezoning on 3 occasions. LaFontaine concerned that rezoning would increase taxes for other residents due to non-tax status of church land, and turned down rezoning application all 3 times (last two w/o providing reasons). Church argued violation of s.2 freedom of religion.

CPR V VANCOUVER (2006) SCC said duty of fairness was owed to CPR due to impact, but content of the PF obligations were met. “Legislative” nature

of decision only mentioned once [48]

Facts: Vancouver changed Official Development Plan Bylaw that applied to railway lands owned by CPR (Arbutus Corridor), limiting to “public thoroughfare for transportation.” Vancouver Charter imposed no statutory requirement to hold a public hearing before adopting an ODP bylaw, but did for other types of bylaws (e.g. zoning). Impact of bylaw on CPR was significant – would freeze development and limit use of the land. Vancouver held a hearing, but CPR claimed it was deficient

VANCOUVER ISLAND PEACE SOCIETY V CANADA (1994) FC• Application for certiorari to quash two decisions (Orders in Council) made by the Governor in Council approving visits

of nuclear carrying vessels and nuclear-propelled vessels to Canadian ports and for mandamus to require the respondents to conduct an environmental screening or initial assessment under the Environmental Assessment and Review Process Guidelines Order.

• The applications were dismissed. In the course of the judgment, the trial judge identified the key indicators of a “legislative decision” as follows:

• What constitutes a legislative decision? At the very least it seems to me the decision must be…• discretionary, • usually, but not always, general in its application, • based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience,

morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns,

• that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts. • The classification of a power as "legislative" is not always easily done, or easily justified.•

CDN ASSOCIATION OF REGULATED IMPORTERS (CHICKENS!) FCA: some are damaged, some gain by quota decision, but it is “essentially a legislative or policy matter.” Any remedy is

political, not legal.

Facts: Ministerial decision changed the quota system for importation of hatching eggs & chicks without consulting the importers. Substantially impacted the business of existing importers. They didn’t have “right to import”

Trial Judge: even if a “general” policy decision, the importers were a known, small group and could have been consulted “Some sort of general notice…was surely required”

EMERGENCY DOCTRINE

13

CARDINAL (SCC 1985)• [16] Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular

circumstances of the case [i.e. prison hostage taking], there could be no requirement of prior notice and an opportunity to be heard before the decision.

• [22] …the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements.

Question: How would/should this rule apply to national security matters today?

POLICY MAKING AND BROAD DISCRETIONARY POWERS

• Outside of potentially “legislative” decisions, when will decisions be seen as general and policy-oriented, thereby not attracting duty of fairness?

• Where impact is broad and diffuse, it is difficult to make case for procedural fairness• Environmental decisions (Sea Shepherd – wolf kill; Sierra Club – timber cutting)• School closure decisions (Vanderkloet, Bezaire)• Marketing board decisions (Cdn. Association of Regulated Importers)

LEGITIMATE EXPECTATIONS DOCTRINE• Does the LED apply to decisions that fall below of the PF threshold? Or just to decisions above the PF threshold?• What must a petitioner show/prove to benefit from LED?• Where has it been successful?• What type of remedy does the LED allow for?

SUMMARY OF KEY POINTS1. “Legitimate expectations” is one of the five factors listed in the Baker case that must be taken into account in

determining the content of procedural fairness required by common law PF in a particular case. 2. In Canada, LED cannot give rise to substantive rights; only to procedural rights. [Re Canada Assistance Plan, Baker,

Mt Sinai, Mavi].

Where it applies, it operates to extend the common law of procedural fairness. 3. According to the Baker decision, LED can affect the procedures required in decision-making in two different ways:

1. a person may have a legitimate expectation of a particular substantive result, in which case the LED may apply so as to entitle that person to more extensive procedures than would otherwise be accorded before he/she can be denied that result at the hands of the state; and

2. person may have a legitimate expectation of a particular procedure in which case the LED may apply to entitle the person to have the benefit of that procedure before a decision is made. [See Baker text p. 46-47]

4. According to Baker, the LED is based on the principle that the “circumstances” affecting procedural fairness:

1. Must take into account the promises or regular practices of administrative decision-makers, and 2. It will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack

on substantive promises without according significant procedural rights”. (Baker para 27)5. A LE can arise based on past conduct (e.g. regular practices) or promises or representations by public officials.

1. The conduct or representation relied upon to establish a LE must be “clear, unambiguous, and unqualified”2. It must also not be contrary to statute (i.e. the LE must not conflict with statutory duties or requirements).

Mount Sinai; Mavi 6. It appears that those who seek to invoke the LED may show, but need not necessarily show, that they were aware of

the conduct giving rise to the Legitimate Expectation. (Mt Sinai).

Proof of reliance is also not required. (Mt. Sinai, Mavi)7. LED cannot attach to the creation of statutes, either directly or indirectly, because to do so would be to fetter

Parliament and hence interfere with legislative processes and legislative supremacy. (Re CAP)14

8. It remains unclear whether the LED can operate so as to attach procedures to “legislative and general” decision-making other than the creation of statutes.

1. This lack of clarity arises because of comments made by Sopinka J. in Re CAP in which he 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 to the creation of statute law by the legislature.

2. 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 J. in Mt Sinai expressly referred to the confusion arising from these comments in Re CAP, noting that it may be difficult to know when this “legislative exception” applies and when it does not. However, he chose to leave the question open for a future case.

• 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 common law would not otherwise offer them.

• It is primarily in the realm of “legislative and general” decision-making that the common law of PF does not currently provide procedural protections. Thus, it is precisely in that realm that there is the most need for the LED to apply.

OLD ST. BONIFACE (1990 SCC)Sopinka, J:

• “(LED) is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise (would) be no such opportunity.”

• This appears to limit LED to cases under the threshold to:– Pure applications– Legislative and general decisions (“LGD”)

• But Sopinka J. seemed to suggest otherwise shortly thereafter…

RE CANADA ASSISTANCE PLAN (SCC 1991)Facts:

• Canada entered into cost-sharing agreements with Provinces concerning social assistance and welfare programs, known as the “Canada Assistance Plan”

• The Plan stipulated that the cost sharing agreement would continue in force so long as the provincial laws were in operation

• The Plan was subject to termination by consent, or unilaterally by any party if one year’s advance notice is provided• Canada then decided that deficit reduction was a higher priority• Federal government introduced a bill to reduce its obligations to BC, Alberta and Ontario without prior notice

Canada Assistance Plan: (federal legislation)8. (1) Every agreement shall continue in force so long as the provincial law remains in operation.     (2) Notwithstanding subsection (1),(a) an agreement may, with the approval of the Governor in Council, be amended or terminated at any time by mutual consent of the Minister and the province;(b) any schedule to an agreement may be amended at any time by mutual consent of the Minister and the province;(c) the province may at any time give to Canada notice of intention to terminate an agreement; and(d) Canada may, at any time on or after the 31st day of March 1969, give to the province notice of intention to terminate an agreement;  and, where notice of intention to terminate is given in accordance with paragraph (c) or (d), the agreement shall cease to be effective for any period after the day fixed in the notice or for any period after the expiration of one year from the day upon which the notice is given, whichever is the later.

1967 Agreement between Canada and BC:6. (2) Subject to subclause (3), this agreement shall continue in force so long as the provincial law remains in operation.    (3) (a) Notwithstanding subsection (1) (i)any schedule to this Agreement may be amended at any time; and (ii)the Agreement may, with the approval of the Governor-in-Council, be amended or terminated at any time, 15

 by mutual consent of the Minister and The Province; (b) The Province may at any time give to Canada notice of intention to terminate this Agreement and Canada may at any time on or after the 31st day of March, 1969, give to The Province notice of intention to terminate this agreement; and where notice of intention to terminate is given in accordance with this paragraph (b), the Agreement shall cease to be effective for any period after the day fixed in the notice or for any period after the expiration of one year from the day that notice is given, whichever is the later.

Held:• Legitimate expectations doctrine does not apply to the creation of statutes by Parliament because to do so would be to

fetter legislative sovereignty; • “It is not the place of the courts to interpose further procedural requirements in the legislative process”• “Such expectations might be created by statements during an election campaign”• 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; • Principle that LED cannot give rise to substantive rights is affirmed – LED where it applies can only affect procedural

entitlements

Contradiction? Sopinka, J:

• the LED is “part of the rules of procedural fairness (which) do not apply to a body exercising purely legislative functions.”

• This appears to limit LED to cases over the threshold since: 1) “purely legislative functions” are under the threshold; and 2) LED is said to be “part of the rules of procedural fairness”.

• This seems to contradict Old St. Boniface (even though it is cited in same paragraph).

QUESTIONS

• Would “parliamentary government be paralyzed” if LED could be applied to introduction of legislation? (CAP)• SCC noted that “it is fundamental to our system of government that it is not bound by the undertakings of its

predecessor”. That would fetter democracy. Could there be a way to deal with this?• What consequences would have resulted from requiring Canada to comply with the notice requirement? • If LED has no relevance to “legislative and general” decisions, when will it apply?• What do you think about the notion that LED can never apply to substantive outcomes?

Recall Baker Factors:1. Nature of the decision being made and process followed in making it2. Nature of the statutory scheme 3. Importance of the decision to the individuals affected4. The legitimate expectations of the person challenging the decision5. The choices of procedure made by the agency itself6. And….recall that this list is not exhaustive7. Baker argued that she had 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; 8. LED doctrine explained by Justice L’Heureux-Dubé for the Court, but no LE was found to exist in this case on

the basis of the wording of the Convention; (see para.29)9. “This Convention is not, in my view, the equivalent of a government representation about how H & C

applications will be decided, nor does it suggest that any rights beyond the participatory rights discussed below will be accorded”

10. Principle that LED cannot give rise to substantive rights is affirmed – LED where it applies, can only affect procedural entitlements (see para.26)

11.

MOUNT SINAI HOSPITAL (SCC 2001)This case is mentioned in footnote 70 on p.170 of textQuebec Act respecting health services and social services:

16

• 138.  Every person applying for a permit must send his application to the Minister in accordance with the regulations. • The Minister shall issue a permanent permit or a temporary permit if he considers that it is in the public interest.  • Q: How would you characterize this provision?

Facts:• Mount Sinai Hospital was operating contrary to licence re: proportion of long term care beds vs. short- and medium-

term beds• Government knew about this and was funding hospital throughout• Provincial Minister responsible agreed to amend licence if hospital relocated from Sainte-Agathe to Montreal• Minister’s promise was reaffirmed on several occasions between 1984 and 1991• Following substantial effort to raise funds, a new hospital was built• New Minister refused to amend licence, stating concerns about the financial support this would require from Province

(court did not agree with legitimacy of this reason)• New Minister did not give Hospital opportunity to make submissions

Petition:• Hospital asked for mandamus – an order forcing the current Minister to issue the licence that it had been promised

Quebec Superior Court:• Key issue was LE based on former Minister’s promises• Allowed the mandamus application in part and ordered that the Minister hear the Centre’s submissions before

deciding whether the alteration of the permit was in the public interestQuebec Court of Appeal:

• Hospital appealed because they wanted full mandamus for permit• Applying the doctrine of public law promissory estoppel, the Court of Appeal ordered the Minister to issue the

promised permit.

Issues and Decision:• Whether legitimate expectations or public law estoppel could operate so as to require a Minister to issue a particular

licence to a hospital when the licence had clearly been promised to the hospital and the hospital had relied on the promise in agreeing to relocate;

• Although the SCC found for the Hospital and granted mandamus, neither of the two concurring judgments rest the decision on the basis of either LED or public law estoppel;

• Binnie J. (McLachlin J. concurring) discusses both LED and promissory estoppel but finds neither applicable in this case;

• (Note: if this were a private law situation, Binnie notes that it would be handled as a breach of contract)Minister Argued:

• Section 138 clearly shows a legislative intent that the public interest is to be determined by the Minister, not by the courts. 

• The validity of the legislation is unchallenged.  • The Minister was familiar with the Center and over the course of seven years had heard whatever the respondents

had to say.  • Ministerial decisions in such circumstances command deference• Neither the doctrine of legitimate expectations nor estoppel operates to entitle the respondents to substantive relief,

i.e., the modified permit.

SCC Held: (All agreed in result)• Majority held that:

– The government’s behaviour, while not rising to the level of issuing an acquired or implied permit, resulted in an exercise of the Minister’s discretion. 

– It is difficult to pinpoint precisely when this discretion was exercised – The actual granting of the permit was simply deferred until the move to Montreal was made.– The specific conduct of the Minister in this case indicates that his discretion was exhausted.– October 1991 letter from Minister was not a valid reversal of this exercise of discretion because: 1) it was

based on new issues not raised before, and 2) it was inconsistent with what the Minister stated in a letter to another hospital.

• Minority (Binnie & McLachlin) said:– Legitimate expectations doctrine cannot provide substantive remedy– “Public law estoppel” should not apply to Minister given broad discretion in the Act– But sending decision back to Minister would have “air of unreality”– This was an abuse of discretion: Minister’s decision was patently unreasonable and therefore substantively

wrong 17

Binnie, J:• Minister is mandated in broad terms to act in the public interest, and if the public interest as he defines it is opposed

to the award of the modified permit, then I do not think a court should estop the Minister from doing what he considers to be his duty. 

• What is at issue is not so much the Minister’s ability to change policies but the fate of individuals caught in the transition between successive and inconsistent ministerial decisions on the same subject. 

• As a matter of statutory interpretation, it seems clear from the broad test of s. 138 (“the public interest”) that the legislature intended the Minister, not the courts, to determine the appropriate transitional arrangements from the old policy …to the new policy

Binnie J.’s decision (in obiter and speaking only for himself and McLachlin J) provides some guidance about two matters: 1. The requirements that must be met in establishing the existence of a legitimate expectation:

• the conduct or promise relied on must be “clear, unambiguous and unqualified” and must not conflict with statute;

• the applicant who seeks to rely on the LED may show, but does not necessarily have to show, that he/she was aware of such conduct or that the conduct or promise was actually relied on by the applicant with detrimental results

2. Why LED does not give rise to a substantive rights in Canada:• “If the Court is to give substantive relief, more demanding conditions precedent must be fulfilled than are presently

required by the doctrine of legitimate expectation.”• “A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural

protection, and any attack upon such a decision will have to be founded upon abuse of discretion” • “public bodies exercising legislative functions may not be amenable to judicial supervision…broad public policy is pre-

eminently for the Minister to determine, not the courts.” • “it must be acknowledged that in some cases it is difficult to distinguish the procedural from the substantive”

CUPE V MINISTER OF LABOUR (SCC 2003)• Premier Mike Harris’s “Common Sense Revolution” led to changes in how labour arbitrators were appointed• Government wanted to depart from past practice of appointing agreed upon arbitrators representing labour &

management: wanted to establish new Dispute Resolution Commission• After considerable opposition from unions, Minister announced gov’t would “return to sector-based system”• But Minister then appointed 4 retired judges not on the agreed list, and without consulting unions• Union challenged Minister’s decision as breach of LED

Which expectations qualify?• established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified,

that has induced in the complainants…a reasonable expectation that they will retain a benefit or be consulted before a contrary decision is taken.  [131]

Which expectations are “legitimate”?• To be “legitimate”, such expectations must not conflict with a statutory duty [131]

Here: evidence did not support consistent practice over time, nor clear, unambiguous promise by Minister, so LED does not succeed (but application succeeded on other grounds)

CANADA V MAVI (SCC 2011)Background Facts:

• Immigration Canada’s family reunification program allowed family members outside Canada to come to Canada on condition that they were “sponsored”

• This meant that if sponsored person should ever enroll for social assistance, sponsor would have to pay that amount to Canada

• Legislation made the debt mandatory, but there was a small amount of discretion relating to the repayment plan if sponsor facing difficulties

18

Specific Facts:• Large (and smaller) debts accrued to the litigants for a host of reasons:

– Some sponsors gave undertakings believing sponsored person would would marry them, or stay married to them – they ended up with large debts, even though they’d lost contact with person

– One sponsor left abusive husband who was sole income provider – now she can’t pay social assistance debt of $94,000 relating to father, mother & brothers.

– Another sponsored his mother, then lost job – mother received social assistance of $54,000• Immigration and Refugee Protection Act (2001)• 145(2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the

terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights.

• The Immigration and Refugee Protection Regulations have detailed rules around sponsorship undertakings and duty to pay:

• See ss.132 & 135 Wording of the Undertakings (for 3 of the litigants):

CONSEQUENCES OF DEFAULTThe Minister may choose not to take action to recover money from a Sponsor or a Sponsor’s spouse (if Co-signer) who has

defaulted in a situation of abuse or in other appropriate circumstances. The decision of the Minister not to act at a particular time does not cancel the debt, which may be recovered by the Minister when circumstances have changed.

• The other undertakings were very similar

Issues: • Do participatory rights & procedural fairness attach to debt collection by the Crown in this situation?• Does the wording of the undertakings create a legitimate expectation that the sponsor has a right to be heard

concerning her or his personal circumstances and ability to pay?• Does government have an obligation to notify sponsors about social assistance claims before large debts accrue? • Or is it the sponsors’ duty to keep track of the person(s) sponsored?

SCC Held:• a minimal level of PF at common law was held to attach because the Crown was found to have a narrow discretion to

defer or structure debt payments based on the personal circumstances of the sponsor; • PF in this context required notice and a right to make submissions regarding personal circumstances, but no duty to

give reasons; • LED doctrine was also invoked successfully to support the procedural claim with the LE arising because of

wording in the undertakings signed by the sponsors at the Crown’s behestSCC Held: (see paras.69-75)

• It would be ironic for gov’t to insist that sponsors live up to their undertakings, while gov’t walks away from its undertakings.

• “Given the legitimate expectations created by the wording of these undertakings I do not think it open to the bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures.”

• “There is no hearing and no appeal procedure but there is a legitimate expectation that the government will consider relevant circumstances in making its enforcement decision and a duty of procedural fairness to do so.”

• “However, the wording of the government’s representations in the undertaking are sufficiently vague to leave the government’s choice of procedure very broad.”

• “Clearly no promises are made of a positive outcome from the sponsors’ point of view.”

SCC Held: (see para.79)• The content of this duty of procedural fairness include the following obligations:

a) to notify a sponsor at his or her last known address of the claim; b) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and

financial circumstances that are said to militate against immediate collection; c) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were

the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; d) to notify the sponsor of the government’s decision; e) without the need to provide reasons.

This duty was met for all of the respondents.

• Does Mavi resolve the question of whether LED applies above or below PF threshold? (the Old St. Boniface v. Re Canada Assistance Plan inconsistency?) 19

• Without directly addressing this point, Mavi may resolve it partly since LED was applied in Mavi over the PF threshold.

AGRAIRA V CANADA

CONSTITUTIONAL / QUASI-CONSTITUTIONAL GUARANTEES OF PF (BILL OF RIGHTS & CHARTER)• How are procedural fairness thresholds assessed by courts when a constitutional or quasi-constitutional law is

involved?• Quasi-constitutional – e.g. Canadian Bill of Rights• Constitutional – e.g. Charter of Rights

What differences do you see between the Charter and the Canadian Bill of Rights?

CHARTER SS. 7, 1, 527. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such

reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

• What is the connection between common law duties of procedural fairness and the “principles of fundamental justice” in section 7 of the Charter?

• Does the Baker analysis apply? Is it relevant?• What is the scope of section 7? When will it provide procedural fairness rights?• Can s.7 give rise to a right to an oral hearing in the administrative context?

BILL OF RIGHTS SS. 1(A), 2(E)• Federal law -- Passed by Parliament in 1960• Earliest Canadian (federal) expression of human rights law• Precursor to Charter of Rights• But is not a constitutional document – it’s a federal statute• Applies to laws of Canada and “any order, rule or regulation” • Doesn’t (likely) apply to entities merely operating under federal legislation

– E.g. Federally incorporated companies– Was largely seen to be ineffective due to limitations in application and uptake by courts– This led to Charter of Rights incorporating similar provisions as a constitutional document in 1982

• 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 to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

• (b) the right of the individual to equality before the law and the protection of the law; • (c) freedom of religion; • (d) freedom of speech; • (e) freedom of assembly and of association; and • (f) freedom of the press.

2. Every law of Canada shall, unless it is expressly declared by an Act of 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

20

authorize the abrogation, abridgment or 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;

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

AUTHORSON V CANADA (SCC 2003)Facts:

• Authorson represented a class of disabled war veterans who received benefits and pensions under several federal statutes;

• Because they were deemed not competent to handle their own affairs, these funds were administered by the Dept. of Veterans Affairs (DVA) on the veterans’ behalf;

• Prior to 1990, the DVA did not invest the pension funds nor pay interest on them;• At least six internal government reports from as far back as the mid-1970s showed the government was aware it was

not meeting its responsibilities toward the veterans. • An auditor general's report from the mid-1980s showed the Department of Veterans Affairs was aware it had

neglected the duties of a trustee.

• In 1990 policy changed and the DVA began to pay interest; • At the same time, Parliament passed s. 5.1(4) of the DVA Act which provided for a statutory bar on claims by the

veterans for the “lost interest” in the past; that provision provided as follows:Claims for Past Interest5.1 (4) No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act.

• It was estimated that the lost interest might be as much as $600 million to $5.5 billion dollars (25,000 – 35,000 veterans)

• The veterans sued claiming that the statutory bar violated the Canadian Bill of Rights Act sections 1(a) and 2(e)…• By the way, the Ontario Superior Court and Court of Appeal agreed with the veterans

Authorson argued:RE: Section 1(a)

1. No procedural rights were accorded to him prior to the passage of the statutory bar by Parliament;2. No procedural rights were accorded to him before the statutory bar was applied to him;3. “Due process” can be applied substantively and it protects him from governmental expropriations of his property

without compensation.RE: Section 2(e)

4. The statutory bar was a “determination” of Authorson’s “rights” and therefore he should have had a “fair hearing” before Parliament expropriated his interest in the pension funds

Re argument 1 – alleged breach of CBA s. 1(a) because Parliament had accorded no procedural rights prior to passage of the statutory bar: 

SCC held: there is no right to be heard prior to the passage of a statute; s.1(a) does not accord “pre-legislative” procedural rights 

• a key limit on CBR s.1(a) as established in the jurisprudence is that this section only “declares and recognizes rights that existed in 1960 when the CBR came into force (i.e. only protects rights of a kind that were recognized in the law in 1960)

– in 1960 (and now) there were no PF rights attached to the passage of statutes by Parliament (see para 33 of extract)

Re argument 2 – alleged breach of CBR s.1(a) because A had no PF prior to the time the statutory bar was applied to his case

21

•  SCC held that in this case, there was no discretionary application of a legislative provision in an individual instance but rather a non-discretionary application of law to incontestable facts – no procedural protections arise in such a case;

•  CBR s.1(a) does provide an individual with procedural protections when property rights are subject to deprivation by the government under a law that requires the exercise of a discretion or judgment in specific factual contexts by a court, tribunal or similar body BUT that is not the case here;

•  CBR s.1(a) does not provide procedural protections when government through legislation completely eliminates all such benefits for all possible claimants

 Examples of how s.1(a) could be used legitimately:• To guarantee fair procedures if a veteran was being deprived of a disability pension on the basis that he/she was

– not disabled– not injured in the course of employment in the armed forces

Analogy of circumstance where not legitimate:• Taxpayer cannot use s.1(a) when the tax rates change for his/her income level

Re argument 3: “due process” can be applied substantively and it protects A from governmental expropriations of his property without compensation

• This claim fails because no such right existed in 1960; • Our legal system has always recognized the right of the legislature to pass legislation to expropriate property without

compensation as long as it does so clearly enough. • CBR does not protect against expropriation of property through the passage of clear and unambiguous legislation as

was the case here.•  SCC also notes the court’s reluctance to use s.1(a) substantively and cites the Lochner era in the US as one reason for

this– a 40 year period in American legal history (1897 - 1937) in which the Supreme Court of the United States

tended to strike down laws held to be infringing on economic liberty or private contract rights– Seen as highly conservative judicial activism

Re argument 4: that CBR s.2(e) applies because the statutory bar is a “determination” of A’s “rights” and therefore entitled him to a “fair hearing” before Parliament expropriated his interest in the pension funds 

• SCC held that s.2(e) does not apply to Parliament when legislating; • It only applies in the context of proceedings before a tribunal or administrative body that determines individual rights

and obligations; • All of s.2 rights are legal rights in the context of, or prior to, a hearing before a court, tribunal or similar body.

Conclusion:• Illustrates doctrine on quasi-constitutional procedural entitlements (i.e. Bill of Rights)• Confirms unassailability of primary legislation respecting both ss.1(a) and 2(e)• Distinguishes between “legislative” and “individualized” decisions• Confirms s.1(a)’s PFJ is procedural and may be substantive, but neither are applicable here

SINGH V CANADA (SCC 1985)• Early case in Charter jurisprudence• 6 judges ruled:

– 3 decided that the Immigration Act provisions offended s.7 of the Charter– 3 decided that the Act offended s.2(b) of the Canadian Bill of Rights

Statutory Context and the Process at Issue (Text, pp.411 – 413)• Under international agreements, Canada has agreed to recognize the claims of convention refugees, defined as

persons who have a well-founded fear of persecution in the country from which they are fleeing because of their race, religion, nationality, membership in a particular social group, or political opinions . . .

• Refugee status is recognized under the Immigration Act (now IRPA); if such status is granted, the refugee has the following statutory rights:

– right to have a further determination made about whether or not a permit should be issued to allow him/her to remain in Canada [granted unless person is criminal/subversive]

– right not to be returned to country where persecution is feared – right to appeal any deportation order

• At the time Singh was decided the Immigration Act established the following three-stage process by which claims for refugee status were determined:

Immigration Officer Stage 22

↓Refugee Status Advisory Committee↓Immigration Appeal Board↓Federal Court of Appeal (JR under s.28)

(1) Immigration Officer stage:• a claim is made by refugee claimant in Canada• Immigration Officer examines claimant on oath• Right to counsel and a reasonable opportunity to engage counsel are afforded• Transcript is made of examination results• Transcript goes to claimant and the Refugee Status Advisory Committee

(2) Refugee Status Advisory Committee stage [RSAC also exercised Minister’s decision-making authority under a delegated power]

• RSAC reviews claim + transcript • No further info was received from or given to the claimant• RSAC could rely on general policies/knowledge of world events without advising claimant about these matters and

without hearing from him/her about them• RSAC decides if claimant is or is not a refugee and advises “the Minister” accordingly• Minister had lawfully delegated his/her decision-making power to the Registrar of RSAC, so in effect it seems RSAC

decision essentially becomes the Minister’s decision

(3) Immigration Appeal Board stage:• Unsuccessful claimant can apply to IAB for a redetermination of his/her claim• Claimant submits the transcript of the examination and a declaration on oath setting out basis of the application for

redetermination and the facts/evidence/information and submissions that would be relied on at redetermination hearing (if one is held)

• On the basis of these materials IAB considers whether there are reasonable grounds to believe claim could be established at a redetermination hearing:

– if so, a full oral hearing will be held– if not, claimant found not to be refugee without further process

Facts:• Appellants were in Canada, and claimed refugee status• They were examined under oath, then turned down by the RSAC• Appealed to IAB, but were not granted oral hearing because IAB decided based on written submissions that there

were “no reasonable grounds for believing they could establish their claims” to refugee status• They then sought judicial review at the Federal Court of Appeal

Issues:• Appellants challenged fairness of the Act itself, not how it was applied to them• It’s not that the IAB treated them incorrectly, but the process does not provide for fair opportunity to be heard• Issue then becomes whether Parliament had authority to exclude procedural fairness to refugee claimants in their

position• Are the Appellants entitled to protection of s.7 of the Charter?• Does s.2(e) of the Bill of Rights apply? (If so, what remedy?)• This was the first case to consider these issues under the Charter

Held:• Process was not consistent with principles of fundamental justice• But Court was split on why – 3 said Charter issue, 3 said Bill of Rights

Per Wilson, J: (Charter)• “Security of the person” is at issue, even if there is a chance he will not be deported – i.e. security needs to be certain• At this stage of the hearing process; refugee claimants cannot assert any right to remain in Canada• Case law under Bill of Rights maintained distinction between rights and privilege; Immigration is a privilege,

therefore CBR doesn’t protect them• This outcome is not acceptable under the Charter

23

Held:Per Wilson, J: (Charter)

• Fundamental justice requires oral hearing where serious issue of credibility is involved• Fundamental justice also requires adequate opportunity to:

– Know the case you have to meet– State your own case– Quasi-judicial process cannot consider material “outside the record” and not made available to the refugee

claimant (e.g. gov’t info on world affairs), except where privileged– Is Immigration Act process saved under s.1 of Charter?

• Some countries didn’t allow for refugee status appeals at all• But onus on Minister to justify

Held:Per Beetz, J: (Bill of Rights)

• Agrees with outcome• But no need to look to s.7 of Charter• Charter guarantees existing rights and freedoms (s.26)• S.2(e) of CBR applies broadly to “rights and obligations” and requires “fair hearing” in accordance with fundamental

justice• So, these three judges agree on result and outcome, but find it is required by the Cdn. Bill of Rights rather than the

Charter.Remedy:

• Decisions of IAB were set aside, and determination of refugee status remanded back to IAB for decision• Why not strike down the Immigration Act provisions?

NEW BRUNSWICK V J.G. (SCC 1999)Right to counsel under s.7?

Facts: • Very poor parent who stood to lose custody of children could not get legal aid and could not pay for counsel – denied

legal aid.• Minister of Health and Community Services was granted custody of the appellant's three children for a 6 month period

and sought a 6 month extension of the original custody order. Issues:

• If the proceedings had taken place without the parent being represented by counsel, would this have violated Charter section 7?

• Does s.7 require state-funding of counsel in such circumstances?

Outcome: • YES. The state has a constitutional obligation to provide the appellant with state-funded counsel in the particular

circumstances of this case.Charter Analysis:

1. The “threshold” question: Is “life, liberty, security of the person” at stake? 2. Is the restriction on the s.7 interest in accordance with PFJ? 3. Is the failure to provide state-funded counsel in this case saved by s.1 of the Charter?

1. Is “life, liberty, security of the person” at stake?• YES.• S. 7 security of the person protects both physical and psychological integrity of the individual• for a deprivation of security of the person to be made out on the basis of state interference with psychological

integrity: (i) the state action must have a serious and profound effect on psychological integrity; and(ii) 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 24

• But must be greater than ordinary stress or anxiety

2. Is the restriction on the s.7 interest in accordance with PFJ? • NO.• If the parent had not been represented by counsel in the circumstances of this case, the parent would not have had an

effective opportunity to be heard. • The three factors that must be considered in determining whether a right to counsel will be necessary to comply with

PF or PFJ (seriousness, complexity, capacity) lead to the conclusion that the process would not have been fair to the parent without counsel.

• The absence of counsel would also have created an unacceptable risk of error in determining the children’s best interests.

3. Is the failure to provide state-funded counsel in this case saved by s.1 of the Charter? • NO.• Section 7 violations are not easily saved by s. 1. • Section 1 may…come to the rescue…only in cases arising out of exceptional conditions, such as natural disasters, the

outbreak of war, epidemics, and the like.• S.7 rights are very significant and cannot ordinarily be overridden by competing social interests.• Rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a

reasonable limit demonstrably justified in a free and democratic society.

Remedy:• There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in

circumstances where the absence of counsel for one of the parties would result in an unfair hearing: 1. an order that the government provide the unrepresented party with state-funded counsel, or 2. a stay of proceedings.

• A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the children to the appellant’s custody.

SURESH V CANADA (2002)• This case was decided 3 years after Baker• Addresses synergy between the Charter and Admin Law principles of procedural fairness• Ultimately, this case is about the constitutionality of the Immigration Act process for deportation certificates when

someone is considered a member of a terrorist organization, and the Minister’s determination that someone is a “danger to the security of Canada”

• It incorporates Admin Law analysis, and draws linkages between PF and the Principles of Fundamental Justice in s.7 of Charter

• See paras.113-114.• Suresh was refugee from Sri Lanka and

applicant for landed immigrant status• Based on CSIS info, he was a member of Tamil Tigers, alleged to be a terrorist organization• He was not known to have committed any violent acts, but was believed to be a “fundraiser”• Minister of Citizenship & Immigration issued certificate saying he was a “danger to the security of Canada” (under

s.53, IA)• About to be deported to Sri Lanka, where he faced risk of torture• Suresh was given opportunity to make written submissions and file material, but not given Immigration Officer’s

report (and therefore not given opportunity to respond to it)

SCC held:• Immigration Act, s.53(1)(b) is constitutional, but:• Canada’s interest in combating terrorism must be balanced against the refugee’s interest in not being deported to

torture• Torture is inconsistent with fundamental justice• Refugees must be provided with an opportunity to respond in writing to the case presented to the Minister, and to

challenge the Minister’s information 25

• These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation

• Remanded back to Minister for new deportation hearing

• Suresh affirms and applies Baker’s 5 principles• Affirms that PFJ in s.7 Charter grants both procedural and substantive rights [113]• Baker properly addresses the procedural rights for PFJ• SCC says its tests “should be applied in a manner sensitive to the context of specific factual situations” • The inquiry “is highly fact-based and contextual”• “The threshold question here is in large part a fact-driven inquiry”• “Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new

weighing process”

• Suresh not entitled to “a full oral hearing of a complete judicial process” but to more that what s.53(1)(b) gave, which was nothing. 

• Entitled to know the case against him and respond:– Notice of proceedings– Disclosure of everything relied upon– Written submissions on danger analysis, likelihood of torture, including foreign assurances.

• Entitled to responsive reasons:– Reasons must come from Minister and be responsive. They “must articulate and rationally sustain” decision.

CHARKAOUI V CANADA (SCC 2007)Facts:

• Immigration and Refugee Protection Act enacted after Sept. 11, 2001 events, repealing Immigration Act.• New system removed permanent residents (PR) or foreign nationals (FN) on grounds relating to terrorism.• Scheme permits removal on the basis of confidential information (i.e., not disclosed to named person)• Under s.77, Ministers sign a certificate of inadmissibility (“Security certificate” or SC) declaring that a PR or FN is

security risk and thus inadmissible to enter or stay.

Referral of certificate77. (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.Filing of evidence and summary(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.Effect of referral(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 82 to 82.3, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.Determination78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.

Appeal79. An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.Effect of certificate80. A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.

Facts con’t26

• Ministers issued security certificates against Charkaoui (permanent resident) and Harkat and Almrei (Convention Refugees) deeming them to be “threats to national security”

• All three were detained pending completion of the proceedings for their removal from Canada• Charkaoui, Harkat and Almrei alleged that the “reasonableness review process” (s. 80 or IRPA) amounted to a

violation of s. 7 of the Charter – the key problem was the “secrecy” aspects of the reasonableness review proceedings  

• What happens even before the Minister signs a Security Certificate?– a PR may be detained through a warrant before the SC. Review of their detention must commence within 48

hours and the judge must see the PR at least once every six months until a determination of the SC’s reasonability is made. Charkaoui is a PR.

– FN must be detained and can only apply for release after 120 days have transpired since Security Certificate determination. No limit on when this determination must take place.

What happens after the Minister signs a Security Certificate? – Under s.80, a Federal Court judge then reviews the “reasonableness” of this SC; this hearing may be in camera

and ex parte at the Ministers’ request.– Neither the named person nor an advocate/counsel can attend the secret hearing and thus know the material

constituting the adverse case.– The named person will receive a summary of the case, but this summary will exclude any sensitive or

confidential material at request of the government (purpose of this secrecy is to protect sensitive national security information, information that may endanger informants, etc.)

– If the Security Certificate is determined to be reasonable by the judge, there is no appeal and no further judicial review.

– If the Security Certificate is held to be “reasonable,” then for both a PR and FN the Security Certificate turns into a removal/deportation order that cannot be appealed.

– Often named persons stay in detention since they are not deported due to risk of torture.– What happened in this case? …

Charkaoui Harkat Almrei

Type Permanent Resident Foreign National / Conv. Refugee

Foreign National / Conv. Refugee

Year Detained 2003 2002 2001

SC “reasonable” determination

TBD 2005 2001

Released In 2005 with house arrest conditionsIn 2009 through FCJ for insufficient evidence

In 2006 with house arrest conditions and subject to deportation to Algeria. In 2009 conditions lessened.

Released in 2009 with conditions

SCC on Principles of Fundamental Justice: (para. 27)• The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security

context. • Yet they cannot be permitted to erode the essence of s.7. The PFJ cannot be reduced to the point where they cease to

provide the protection of due process that lies at the heart of s.7 of the Charter.• The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy

s.7, meaningful and substantial protection there must be. 27

• At issue is the right to a fair hearing before one can be detained. This “ancient and venerable principle…has a number of facets” (para.28-29)

– “right to a hearing…before an independent and impartial magistrate…on the facts and the law”– And it entails the right to know the case put against one, and the right to answer that case” (para. 29)

Hearing? yes

Independent and impartial?

yes

On facts and law? No – facts limited Judge cannot gather evidence and must rely on named person, but the named person does not know full case against and is not present at hearing

Know the case to meet and answer it?

No – lack of disclosure Named person does not know full case against and is not present at hearing

Is this violation of s. 7 saved under s.1 of the Charter? 

• No. • Scheme does not utilize the least intrusive measures. • Court considers previous Canadian and current western democratic substitutes for balancing security needs with fair

hearing principles.– E.g. could have appointed a special security-cleared lawyer to represent Charkaoui in the hearing process,

rather than have a judge hearing summary of secret facts and then determining the legitimacy of the SC

CHARKAOUI II (SCC 2008) SCC reviewed CSIS policy of destroying operational notes. Held that Crown has duty to retain notes for possible

assessment by reviewing judge. PFJ require a form of disclosure of all the information that goes beyond the mere summaries…prepared by CSIS to ministers and designated judge

BLENCOE V BC (SCC 2000)Undue Delay:

• In the criminal law context, ss.10 & 11 of the Charter gives rise to certain rights “without delay”• S.10 – right to retain and instruct counsel “without delay”• S.11 – right to be informed of specific offence “without unreasonable delay”• S.11 – right to be tried within a “reasonable time”• What about administrative law?• Can s.7 give rise to a right to have ADM within reasonable time?

Facts:• Cabinet Minister accused of sexual harassment; fired from Cabinet, political party;• Complainant files complaint with HRC; two others come forward with similar allegations;• HRC informs Blencoe of complaints within a month of receiving the complaints;• It investigates over a 24 month-period, then schedules hearing ~32 months after initial complaint filed. Of this, 5

months of no action.• Intense media coverage; B suffers from severe depression; leaves province due to “unemployability”• B seeks judicial review to have complaints stayed due to unreasonable delay.

28

Issues:1. Does Charter apply to operation of Human Rights Commission?2. Does s.7 of Charter provide protection against unreasonable delay in a tribunal hearing? I.e. do “liberty” and “security

of the person” entail rights to a hearing within a reasonable amount of time?3. If not, what common law principles of procedural fairness apply?4. If his rights were violated, was the stay of proceedings ordered by the BC Court of Appeal an appropriate remedy?

Issue 1: Application of Charter to Human Rights Commission32 (1)This Charter applies(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. HELD:

YES. HRC is created by statute, and all its actions are taken pursuant to statutory authority. “Governmental quality” to HRC operations.

Issue #2: Can section 7 give protection against undue delay in administrative tribunal hearings?• Majority considered whether s.7 interests (liberty or security of the person) were triggered in the Blencoe case and

held that they were not;• S.7 can apply outside of criminal law where “liberty” and “security of the person” is truly affected.• “Liberty” means more than freedom from physical restraint; but must establish state interference with “fundamental

personal choices”. Does not apply here. • “Security of the person” protects “psychological integrity” of individual, but psychological harm must result from the

actions of the state and it must be serious• There must be strong causal connection between the individual’s harm and state actions. Here, his psychological

stress is due to the allegations against him and being removed from Cabinet – not by delay in hearing.

Charter, s.11(b): Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time;

– Held: BC Court of Appeal erred in applying this outside of criminal law context.

Issue #3: How do common law fairness principles apply to delay?• Key Factor = “Significant Prejudice”: under the common law principles of administrative law, a delay in the process

can warrant a stay of proceedings if there is proof of “significant prejudice” resulting from an unacceptable delay • What Constitutes “Significant Prejudice” for this purpose?

1. actual prejudice to a fair hearing in an evidentiary sense 2. delay amounting to an abuse of process

1. What Constitutes Actual Prejudice?• “Actual prejudice” occurs when the party’s ability to answer the case against him/her, or to have an adequate

opportunity to present his/her case, is impaired by delay. • For example, witnesses are dead or lost or key documents have been destroyed because of delay. • This kind of prejudice has long been recognized as a denial of procedural fairness that can lead to a stay of

proceedings.

What Constitutes “Abuse of Process”? • Delay may amount to an abuse of process, even where the fairness of the hearing itself has not been compromised, if

the delay is: Inordinate/unreasonable causes serious stress (psychological harm) and stigma to reputation; and is such as to bring the human rights system into disrepute.

When Is a Delay “Inordinate” For the Purposes of Establishing an “Abuse of Process”?• To consider if a delay is “inordinate” or “unreasonable” one must consider the overall context, including the

following factors: 29

nature of the case/the various rights at stake level of complexity of facts/issues purpose and nature of the proceedings whether the applicant contributed to the delay or waived it

• Abuse of process arising from delay will be rare – the court must be satisfied that to allow the proceedings to continue would be contrary to the interests of justice and oppressive.   

• In this case, there was no actual prejudice and the delay was not “inordinate” in all the circumstances. Nor was it such as would “offend the community’s sense of decency and fairness”.

• Accordingly, there was no abuse of process and no grounds to order a stay. • [Note: Contrast the Majority opinion with that of the Minority.]

Discussion:• This was a 5:4 decision, concurring in result but disagreeing as to the reasons• How did the minority opinion address the issue of unreasonable delay?• Do you think delay in an administrative proceeding is a Charter issue?• Are there other ways the court could address this situation?• Were there other options available when it came to remedy?

WAREHAM V ONTARIO MINISTRY OF COMMUNITY AND SOCIAL SERVICES (ONCA 2008)• [17] … delay in processing applications for welfare benefits, essential for day-to-day existence and to which the

applicants are statutorily entitled, could engage the right to security of the person where that delay has caused serious physical or psychological harm.

• Mentioned in Text, p.419.

FRAMEWORK FOR S.7 ANALYSIS(1) Does the administrative 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 SCC jurisprudence)?(2) If so, i.e. if “life”, “liberty”, or “security of the person” is at stake in the decision, is the deprivation in accordance with the principles of fundamental justice [PFJ](a) in a procedural sense (are the procedures by which the deprivation can occur in accordance with the procedures required by PFJ?) and(b) in a substantive sense (is the deprivation of section 7 interests itself – the possibility that it could occur – consistent with PFJ?) [NB. in this course our concern is only with procedural PFJ, not substantive](3) If life, liberty or security of the person is at stake in the decision and the deprivation is not in accordance with PFJ (i.e, if s.7 has been breached) is the denial of PFJ nevertheless a “reasonable limit, prescribed by law, that is demonstrably justified in a free and democratic society” so that it is “saved” under s.1 of the Charter?

[cases where a denial of PFJ could be upheld under s.1 of the Charter are likely to be rare, but the s.1 analysis does apply]

Meaning of “Liberty”•  freedom from physical restraint (imprisonment, incarceration, detention) e.g. Charkaoui – detention by the state

triggers s.7• “liberty” also protects some narrow realm of “personal autonomy” – freedom to make decisions that are of

fundamental importance to the individual (“essential life choices”) (discussed in Blencoe)• making decisions about medical treatment for children (Re B., cited in Blencoe) • making decisions about where to reside (Godbout, cited in Blencoe)

Meaning of “Security of the Person” • protects both the physical and the psychological integrity of the individual (bodily and psychological integrity) per

N.B. Minister of Health and Community Services (citing also Morgentaler, Rodriguez) •  freedom from state imposed threats of physical punishment or suffering (as well as from such punishment or

suffering itself) per Singh • right to be free from state-imposed psychological harm: state action that, viewed objectively, has a serious and

profound negative effect on psychological integrity (N.B. Minister of Health and Community Services) i.e. is of such a kind or quality as could be expected to cause such harm (Blencoe) 

30

• law or state action that creates a risk to health by preventing access to health care can constitute a deprivation of security of the person: “INSITE case” (PHS Community Services Society), Chaoulli

Psychological IntegrityNew Brunswick Min of Health and Community Services:

• the state action at issue must have a serious and profound effect on psychological integrity when viewed objectively (i.e. must ask: would the state action at issue have a serious and profound effect on a person of reasonable sensitivity?)

• the stress or anxiety imposed by the state action must be greater than ordinary stress or anxiety, but need not reach the level of nervous shock; such a level may be found where the state action causes serious distress, stigma and represents a gross intrusion on a private and intimate sphere (e.g. child protection hearings)

Blencoe: • the psychological harm alleged to trigger the s.7 security of the person guarantee must be caused by the actions of the

state [sufficient causal connection is required] and must be very serious in kind and degree as measured by an objective standard

Causal connection to Charter rights• to satisfy the requirements of s.7 in contexts where the direct deprivation of “life, liberty, and security of the person”

will come at the hands of a foreign government, there must be a “sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected”

– Canada (Prime Minister) v. Khadr, 2010 SCC 3, para 19; – Suresh v. Canada, 2002 SCC 1. – Note that such a connection was presumably found by the 3 judges in Singh who considered the Charter

although not expressed in those terms.

Principles of Fundamental Justice (PFJ)• Procedurally, PFJ is not necessarily identical to common law Procedural Fairness, but the same principles underlie

both  

• Singh: PFJ includes common law Procedural Fairness; – person must have an opportunity to (a) adequately state their case and (b) know the case they must meet; – requirements will vary with context : for example, PFJ will not always require an oral hearing; however, oral

hearings will be required if credibility is at stake 

• NB Min of Health and Community Services : PFJ = “fair hearing” – opportunity to present one’s case effectively – may require a right to be represented by legal counsel if the hearing could not be fair without counsel;

– to determine if counsel rights are needed, consider three factors: 1) seriousness of what’s at stake, 2) complexity of the matter, and 3) capacity of individual to represent himself/herself

• Charkaoui: the procedures required to meet the demands of PFJ depend on the context; • the question is whether the process is fundamentally unfair or flawed; • a national security context can be taken into account in deciding whether a process is fundamentally unfair or flawed:

– for example, a national security context could mean that the “usual” form of procedures may have to be modified somewhat or replaced by adequate substitutes but, ultimately, the process must meet the requirements of the PFJ;

– if the PFJ are not respected, any state justification of using procedures that do not meet the requirements of PFJ must be dealt with under the s.1 “reasonable limits” analysis and not under s.7;

– security concerns cannot be used to excuse procedures that do not conform to PFJ at the s.7 stage of analysisCharter Section 1 re Justification of Breaches of PFJ

• At the s.1 stage the state is faced with attempting to justify procedures that have been found to be contrary to the principles of fundamental justice;

– the Oakes test applies (e.g. Charkaoui, New Brunswick Minister of Health and Community Services) – but denials of procedural PFJ will be very difficult to justify (New Brunswick Minister of Health and Community

Services; Charkaoui); – administrative inconvenience will not be enough (Singh)

31

SPECIFIC PROCEDURAL ISSUES

SPECIFIC CONTENT PRE-HEARING: NOTICE, DISCOVERY, DISCLOSURE1. Notice (notice that a decision will be made and what is at stake) 2. Disclosure/discovery of the evidence that will be relied by the decision-maker 3. Delay in proceeding (we have already looked at this in Blencoe)

Sources of Notice Requirements:1. The statute the decision-maker is made under.2. The Administrative Tribunals Act – if applicable3. Common law

NOTICE• Without notice, none of the other procedural rights can be exercised. Where a person is “over the PF threshold” and

has some kind of right to be heard in the d/making process, he/she needs to have adequate and reasonable notice that a decision is going to be made in order to be able to exercise effectively the right to be heard.

• The kind of notice required will depend on the overall context and where the decision falls on the procedural fairness spectrum – e.g. if “high end” PF is required, more elaborate notice will be needed.

• Generally speaking, the person who has a right to be heard needs to know at least:– what the proceedings are about and their possible consequences (e.g. penalties, sanctions – what’s at stake?) – when and where he/she will have a chance to “be heard”.

• In some cases, depending on the context and in at least a preliminary way, the person also needs to know some aspects of “the case against” him/her so that he/she can adequately prepare to respond to that case and to make his/her own case.

• 4 issues with respect to “notice” are typically identified: (i) form(ii) manner of service(iii) time(iv) content

• Keep in mind that in some cases, the relevant statute or regulations will provide for how and when notice is to occur and what kind of information must be provided.

FORM OF NOTICEWritten, electronic, or oral?

• Written notice is more common, safest, and probably required where important interests at issue; • Electronic or oral may suffice in some cases;• If there is ACTUAL notice, and the person entitled to be heard is not prejudiced, the court is not likely to grant judicial

review merely because of a defect in form.• Recall Webb and Ontario Housing Corporation case (p.133 of text)

Service:• Personal service (handed to the party) is best if serious individual interests are at stake.• Notice by mail will often be O.K. (and perhaps by fax or email) but the agency giving notice must be wary of whether

or not the notice is actually received in time or at all. • Public notice may suffice in some cases where many people will be affected in more or less similar ways. For example,

methods such as newspapers ads are often used (e.g. CRTC hearings, environmental impact hearings).• However, in using general notices, care must be taken to ensure that the method used is reasonably likely to come to

the attention of those who will be affected.

Timing:• The general rule is that the notice must be given long enough before the hearing to give the party time both to decide

whether to participate, and then to prepare effectively to participate.

32

• The length of time required will vary depending on the nature of the interests and issues – how complicated they are and the seriousness of what’s at stake.

• more complex, more serious matters → more time needed to prepare as a general rule• Note: a common remedy for insufficient notice time, is to adjourn the proceedings and give the party further time to

prepare.

Content:• In some respects, this is the more difficult question because the content required is so variable, depending on all the

circumstances. • The general rule is simply that the notice must give enough information to enable a party to prepare to respond

effectively. Hence, the amount of information required will vary depending on the context and where the decision falls on the PF spectrum, and also on the complexity of the issues and the nature of the proceeding that will be held.

• It is clear that the notice must give enough information so that the person knows “what’s at stake - what kind of “jeopardy” he or she faces as a result of the decision and why.

• However, the courts will also often take a common sense approach in this respect, taking into account what a reasonable person in the position of the party be expected to know and understand from the information he/she was given in the notice.

Example:• Is a newspaper ad stating that power

lines are proposed for “southwesternOntario” adequate notice to those whoseproperty interests may be affected?

• Is there enough information for people to know that their interests may be affected by a decision?• Be sure to check the statutory scheme to see if it has any particular notice requirements, and if they have been met.

RESIDENTIAL TENANCY ACTTiming and notice of rent increases

42  (1) A landlord must not impose a rent increase for at least 12 months after whichever of the following applies:(a) if the tenant's rent has not previously been increased, the date on which the tenant's rent was first established

under the tenancy agreement;(b) if the tenant's rent has previously been increased, the effective date of the last rent increase made in accordance

with this Act.(2) A landlord must give a tenant notice of a rent increase at least 3 months before the effective date of the increase.(3) A notice of a rent increase must be in the approved form.

ADOPTION ACTBirth fathers' registry

10  (1) A birth father may, in accordance with the regulations, register on the birth fathers' registry to receive notice of a proposed adoption.

(2) Notice to a person registered on the birth fathers' registry is properly given if it is sent, in accordance with the regulations, to the address recorded in the registry.Dispensing with notice of proposed adoption

11  (1) On application, the court may dispense with notice of a proposed adoption to a birth father if it is satisfied(a) that it is in the child's best interests to do so, or(b) that the circumstances justify dispensing with the notice.(2) An application under this section may be joined with an application for an adoption order.

FOREST PRACTICES LEGISLATIONProviding notice

20 (1)  Before a person submits to the minister for approval a forest stewardship plan or an amendment to one, the person must publish a notice at least once in a newspaper, and may publish the notice more frequently, stating

(a) that the plan or amendment is publicly available for review and for written comment at the person's place of business or at another place specified in the notice,

(b) persons may attend at that place during business hours to review the plan or amendment, and(c) the address of the person proposing the plan or amendment to which address persons may submit written

comments about the plan by mail or in person. 33

ATANotice

• ATA has provisions for notice for the tribunals that it applies to.• See sections 19 – 21• To determine whether these apply you must look to the tribunal’s enabling legislation

– See definition of “tribunal” in s.1 of ATA– Then see, for example,

• Human Rights Code, s.32• Workers Compensation Act, s.245.1• Petroleum and Natural Gas Act, s.148 (Surface Rights Board)

Environmental Management Act, s.93 (Environmental Appeal Board)

DISCLOSURE / DISCOVERYSummary of pre-hearing disclosure:

• A person who has hearing rights needs notice and a reasonable level of information before the hearing. • If the case is at the “whole enchilada” end of the PF spectrum, something akin to pre-trial discovery processes may

arguably be required to enable the person to know “the case against” and to help him/her prepare for the administrative process (e.g. professional discipline processes).

• Many tribunals that hold full adjudicative hearings recognize the value of discovery and have established rule procedures to provide for it. However, not all tribunals have jurisdiction to force parties to participate in pre-hearing discovery processes.

• See pp.26-31 of Environmental Appeal Board’s Procedure Manual.

Practical Considerations:• As a practical matter, if you want to challenge a decision, how will you know what facts were “on the face of the

record” before the decision-maker”?• If the decision in question is one for which a hearing was held, you will know what evidence was entered at the

hearing.• But what about pre-hearing? Or what about decisions made without a hearing?• In addition to asking your client for all the documentation she/he has, another possibility many lawyers use is Access

to Information legislation (in BC – the Freedom of Information and Protection of Privacy Act;• See Part 2 of FOIPPA for info rights and exemptions from disclosure

• Section 4 – right to information– Definition of "record”– Definition of "public body”

• Sections 12-22.1 – exceptions to disclosure requirements• If dealing with a federal decision-maker, you would look to the Access to Information Act and its

regulations.

• How does this legislation affect your client’s right to information?• E.g. What if government refuses to release all records, claiming statutory exceptions to disclosure?• Just because information is exempted from disclosure under freedom of information legislation doesn’t mean that its

disclosure will be denied to your client• Especially if the rules of natural justice or procedural fairness apply

– E.g. Right to know the case he/she has to meetComplementary procedures (Access to Information Act)2(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.

• Pre-hearing discovery differs from “notice” in that it would typically arise after the “initial” notice has been given, but before the actual hearing of the matter.

34

• It refers to processes similar to the discovery processes followed in the civil courts where the Rules of Court provide for elaborate and extensive pre-trial discovery processes by which each party can find out about the other party’s case.

• The question in administrative law is to what extent, if any, should similar kinds of rights apply to administrative decision-making processes?

• Why are the processes different?

SCC Rules:• See Part 7 — Procedures For Ascertaining Facts

– Rule 7-1 — Discovery and Inspection of Documents – Rule 7-2 — Examinations for Discovery– Rule 1-1 — Interpretation

• "action" means a proceeding started by a notice of civil claim (s.1)

Judicial Review Procedure ActApplication for judicial review

2  (1) An application for judicial review must be brought by way of a petition proceeding.Supreme Court Rule 16 – 1: PetitionsPetition record

• See Rule 16 – 1 (11) for “petition record”But see also…

(18)  …the court may, whether or not on the application of a party, apply any other of these Supreme Court Civil Rules to a proceeding referred to in this rule.

Advantages of pre-hearing discovery:1. Eliminates trial by surprise/ambush:

– trial by surprise/ambush is not fair – it is not a good way to get at the truth – justice is better served by avoiding surprise at the hearing

2. Enables the parties to prepare more effectively for the hearing and this narrows the issues by indicating what is/what is not at issue

– this renders the hearing more efficient and expeditious because the parties can focus on the issues in dispute 3. Discovery may promote settlements before the hearing 4. Not having discovery impedes the ability of a person to make full answer and defence to the case against him or her

Disadvantages of pre-hearing discovery:1. May unduly delay and complicate administrative proceedings that are supposed to be speedy and expeditious; 2. The applicability of the various rationales in favour of discovery varies depending on the kind of administrative

decision/making at issue and the overall context; • In many cases, the administrative decision-maker may not have jurisdiction to make discovery orders vis a vis

information that is not in its possession; • whether or not it does depends on the scope of its statutory powers, express and implied, and it appears that courts

will not easily imply the existence of such jurisdiction.

When is it most important?• Pre-hearing discovery in a more formal sense is most likely to become an issue when there will be an identifiable

hearing – usually an oral adjudicative hearing with opposing parties – and the individual whose rights will be affected is claiming the right to know, before the hearing, details about the evidence that will be relied on at the hearing, so that he/she can better prepare to meet “the case against them”.

• Also, if the agency itself has been involved in “evidence gathering”, the person may also seek to have information about that evidence, regardless of whether or not it will be relied on at the hearing, in order to help the person prepare his/her own case.

•Difference between criminal & administrative law requirements

• The 1991 Stinchcombe decision of the SCC is a criminal law case which imposed extensive disclosure obligations on the Crown prior to trial, including disclosure of both inculpatory evidence that the Crown intends to rely on at trial as well as any exculpatory evidence that the Crown may have gathered, regardless of whether the Crown intends to rely on it.

35

• This decision spurred similar claims in administrative law proceedings such as human rights processes in which the state plays an investigative and “prosecutorial” role in some jurisdictions.

• However, the SCC ruled in May v. Ferndale (2005) that the Stinchcombe doctrine is not directly applicable in an administrative law (civil) context.

MAY V FERNDALE INSTITUTION (2005)• Acting under the Corrections and Conditional Release Act (CCRA), federal prison officials reclassified the security risk

of prisoners using a scoring system generated by computer• May et al. were serving life sentences, and had not completed violent offender programming• Their security risk increased, and they were involuntarily moved from minimum security to medium security prison• Prisoners wanted to challenge reclassification, and sought full disclosure of the scoring system used by Correctional

Service of Canada

• “While the  Stinchcombe disclosure standard is inapplicable to an administrative context,…procedural fairness generally requires that the decision-maker disclose the information relied upon.  The individual must know the case he has to meet.

• If the decision-maker fails to provide sufficient information, his decision is void for lack of jurisdiction.  In order to assure the fairness of decisions concerning inmates, s.   27(1) of the CCRA requires that CSC give the inmate, at a reasonable period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary of that information”. 

SPECIFIC CONTENT AT HEARING STAGE

1. When will an oral hearing be required as opposed to some lesser kind of hearing (e.g. a “paper hearing”- opportunity only to make written submissions)? – see Khan

2. Will the proceedings be in public or in camera?3. Will representation by counsel allowed? – see New Brunswick Minister of Health and Community Services4. Disclosure to the parties of all the information that the decision maker will rely on in making its decision (right to a

hearing “on the record”) – see Kane5. Evidence (admissibility, confidentiality, privilege claims, official notice) 6. Will there be a right to cross-examination?

ORAL OR WRITTEN HEARINGS• When will an oral hearing be necessary in order to accord with the dictates of PF? (as opposed to some other kind of

hearing such as a written process – a “paper hearing”) • There is no presumption in favour of oral hearings as a necessary element of PF (see Nicholson, Baker). • However, in Singh an oral hearing was found to be necessary by all 6 judges [3 using the Charter s.7 and 3 using the

Bill of Rights s.2(e)] because of the seriousness of what was at stake and because credibility was at issue. • The courts have not said that an oral hearing is required whenever a s.7 interest is at stake or whenever s.2(e) of the

Bill of Rights is triggered; the “principles of fundamental justice” as referred to in s. 7 of the Charter of in s.2(e) of the CBR – are variable.

• To decide if an oral hearing is necessary, one would now apply the Baker 5 factor analysis and try to decide where to locate the decision-making on the PF spectrum

• Are there any other special reasons that might exist in favour of an oral hearing?• If credibility is at stake in the matter and if what is at stake is serious, an oral hearing (some kind of face to face

meeting between the individual and the d/maker) will likely be required. • See, e.g. Singh and Khan v. University of Ottawa 1997 Ont CA

 

KHAN V UNIVERSITY OF OTTAWA• Second year law student failed exam and GPA dipped below faculty minimum, requiring additional semester of

courses• Appealed on grounds that she had completed a fourth “missing” exam booklet that was not graded 36

• Law school c’tee met without providing her notice, or asking her to appear before it• The committee’s record of decision stated that:

– Procedures strict, invigilators good– Exam books have never been lost in the past– Books were numbered 1 through 3– Little was written in third booklet

Held:• Student threatened with loss of academic year is entitled to “high standard of justice”• Consequences are serious:

– Will delay and may end career– May render previous academic years valueless– May foreclose further university education

• Her credibility was a critical issue• Ms. Khan should have been given opportunity to rebut the factors the committee relied on in its decision• Oral hearing should have been granted• But not all academic appeals will require oral hearings

WILL HEARING BE OPEN?• Check the applicable legislation• Traditionally treated as being within the tribunal’s discretion• As a general rule, if there is going to be an oral hearing, it will probably be open to the public unless there is a good

reason for the proceedings to be in camera or unless the statute says that the proceedings are to be in private. • Countervailing factors to publicity would include:

– personal security interest of a party may be threatened – privacy interests of individuals re intimate matters– national security interests could be jeopardized– protection of police informants– protecting commercially sensitive info [e.g. from business competitors]– Other reasons??

Factors re Open Hearing• Personal security interest of a party may be threatened• Privacy interests of victims• Willingness of witnesses to testify• Public confidence in hearings• National security interests• Protection of commercially sensitive information (e.g. business competitors)• Freedom of the press -- could the press mount a constitutional challenge under s.2(b) of the Charter?

Internet?• Does wide open access to tribunal hearings present any problems for the principle of openness and transparency?• Privacy issues have come to the fore and are now as important as public right to know• Tension between two competing values, an open and accessible justice system and the right to privacy• See former BC Privacy Commissioner’s article Privacy and Openness in Tribunal Decisions

Half-way House?• How could a tribunal or other decision-maker address confidentiality and privacy concerns but still be relatively

open?• If there are special concerns about confidentiality there are some “half-way houses” between full publicity and in

camera proceedings such as:– publication bans– taking only some testimony in private

ATA:• Note that section 41 of the Administrative Tribunals Act, provides that oral hearings must be open to the public but

section 42 provides that the tribunal may direct all or part of the evidence to be heard or received in camera. • Remember: These sections only apply if they have been specifically declared to apply by the enabling statute of the

tribunal. 37

Professional Disciplinary Committees:• What concerns might arise in disciplinary matters before a professional body such as the Law Society?• The Law Society Rules in B.C. provides that disciplinary and other hearings are to be open to the public but the hearing

panel has power to exclude the public as it considers appropriate and may also impose a publication ban.• See also s.88 of the Legal Profession Act re: privileged info

MILLWARD V CANADA (1974 FCJ)• Four unsuccessful candidates for job classification promotion challenged the decision of a “selection board” to the

Public Service Commission, as allowed by the Public Service Employment Act.• Lots of “spectators” showed up to the hearing• Applicants wanted the PSC hearing to be held in camera because it involved personal issues about their competence• Legislation did not address public vs. private hearing issue• Applicants argued that the initial selection board review was conducted privately, so this hearing should be too• PSC Board ruled that there was presumption that hearings would be open.• Applicants left hearing and filed judicial review petition

Federal Court held:• Hearing was “quasi-judicial” because there was a contest between the parties• “Open court is the palladium of liberty.”• “To justify the exception to open court no principles can be said to have emerged which are universally accepted”• Board complied with express statutory requirements and “is the master of its own procedure” in respect of matters

not expressly covered• Board did not err by requiring hearing to be public• And, hearing was not unfair even though Applicants left it.

PACIFIC PRESS (1991)• Provision of Immigration Act authorizing in camera hearings was found to be infringement of s. 2(b) of the Canadian

Charter of Rights and Freedoms and its protection of “freedom of expression” and “freedom of the press”:• “Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”

Held: (Federal Court of Appeal)• Immigration Act hearings are sufficiently judicial to qualify as court proceedings for purposes of Charter• Open court preceded the Charter of Rights – public is aware of what happens in courts through the media• Immigration Act is “overinclusive” in terms of protection refugee claimants, and could not be saved by s.1

– Objective is sound in free & democratic society, but…– Interference with Charter right is not of a “minimal nature” – in fact, it is “seriously excessive” and onus on

public & media is impossible to meet• Integrity of tribunal processes is aided by public access

But Court suspended its declaration for one year so Parliament had

RIGHT TO COUNSEL

• In most hearings, a right to be represented by counsel or by an agent is assumed and sometimes the statute itself will require it expressly.

• See section 32 of the BC Administrative Tribunals Act• Contrast this to section 6 of the Alberta Administrative Procedures and Jurisdiction Act• The basic question is when are lawyers necessary in order to give a person an adequate opportunity to be heard and

to make his/her case?• To answer this, consider first the advantages/disadvantages of legal representation.

Advantages: 38

• lawyers are spokespersons and are especially important where the proceedings are complex: they help the client make his/her way through the process

• legal expertise helps delineate the issues and present facts/arguments in an orderly way and

know what facts and arguments are needed and likely to succeed • lawyers know how to conduct examinations and cross-examinations of witnesses• lawyers can safeguard the interests of the client in the proceedings• lawyers tend to equalize the process

Disadvantages:• Can add to delay, formality and expense – make things slower, more formal and costlier• May unduly “legalize” processes that don’t need to be legalized• Make the process more adversarial

When necessary?• General rule is: the right to have counsel will arise from PF where it is necessary to give a person a reasonable

opportunity to be heard in all the circumstances. • Per N.B. Minister of Health we must consider the following factors:

(1) the seriousness of the issues and the impact of the decision: what’s at stake(2) the complexity in terms of the process and the law(3) the capacity of the person affected by the proceedings to understand the process and to participate without the

assistance of counsel• A possible “off-setting factor” pointing against counsel rights would be:

(4) the need for speed, informality, economy in decision-making and whether involvement of lawyers will significantly impair those goals could be offsetting factors.

NB MINISTER OF HEALTH• Consideration of the 3 factors (seriousness, complexity, and capacity) led to the conclusion that the hearing could not

have been fair without counsel, and…• What was at stake was so significant (security of the person as protected by s.7 of the Charter) that state-funded

counsel had to be provided if the individual was indigent and could not afford to engage legal counsel on his/her own.

HOWARD V STONY MOUNTAIN INSTITUTIONFacts:

• Prisoner denied right to counsel before inmate disciplinary court for charges relating to five “serious” or “flagrant” offences under Penitentiary Service Regulations

• At stake were 267 days of “earned remission” credit (not a legal entitlement, but administrative policy), plus possibility of being placed in solitary confinement

Issue:• Does s.7 of Charter apply & if so does it include right to counsel?• This was 1983 case – there was no right to counsel in this situation prior to Charter

Held:• Yes – but no absolute right to counsel in all proceedings• Right to counsel depends on:

– Circumstances of the particular case– Gravity – Complexity

39

– Capacity of inmate to understand the case and present his defence– Other factors – this list is not exhaustive– Applied to this case:– Loss of 267 days remission credit and solitary confinement = liberty– Charges are complex: “notoriously vague and difficult...to defend”

Qualifications on Right ot Counsel:The right to counsel will vary according to the circumstances:

• Lawyers as “menace to the process”• Trade secrets, national security or highly confidential information involved• Knowledge of medical diagnosis could be damaging to person’s mental health• Potential for adverse consequences to individual• Right to legal representations vs. right to particular lawyer

MEN’S CLOTHING MANUFACTURER’S ASSOCIATION OF ONTARIO• Labour arbitrator held that labour disputes in textile industry had been resolved without lawyers for 60 years• System worked well – informal & responsive to needs and traditions of the industry• “The egregious introduction of lawyers may put all of this at risk” - Delays, evidence, picky legal arguments, costs

• Common law does not entitle manufacturers to legal representation – Arbitrator limited it to strictly legal arguments

• Court overturned Arbitrator – he erred in law; tribunal cannot restrict a party in its choice of agent to represent it; contrary to Natural Justice

IRVINE V CANADA (RESTRICTIVE TRADE PRACTICES COMMISSION)• Investigative hearing under Combines Investigation Act• Involved confidential information of commercial significance• Competitor’s lawyer allowed to be present, but not his client• Required “undertaking” not to reveal commercially valuable information to client

– (see Professional Conduct Handbook, Rules and 11-7 and 13-1) • Other restrictions imposed on cross-examination

SCC held:• Restrictions are okay in context

“Fairness is a flexible concept whose content varies depending on the nature of the inquiry”

DISCLOSURE OF THE CASE AGAINST• The issue here is disclosure of all the information on which the decision-maker will actually decide the matter at hand

– [i.e. disclosure of all information received at the hearing stage as opposed to pre-hearing discovery].• The general fairness principle when an oral adjudicative hearing is conducted is that a party is entitled to know all of

the evidence and representations that have been made to the decision maker – [i.e. by other parties or witnesses or by staff etc.] and he/she is equally entitled to have an adequate

opportunity to respond to it.Implications:

• This means that the decision-maker should either not receive evidence or submissions without the parties being present

• If it does receive such information in the absence of the parties it should disclose that information to the parties and give them an opportunity to respond.

• This is also sometimes referred to as the right to have a decision made “on the record” that is, a decision that is made on the basis of the information/evidence that was given to the decision-maker in the presence of, or with the knowledge of, the person who has a right to be heard, and not on the basis of information, evidence or representations that the person doesn’t know about and hasn’t had a chance to respond to.

• See Kane

Exceptions to Full Disclosure:• Kane sets a general principle but it should be noted that this principles applies primarily at the higher end of the PF

spectrum, especially where individual interests are at stake, wrongdoing is alleged, and the process is adversarial and court-like. 40

• When the d/making is located towards the lower end of the PF spectrum e.g. where the decision is more “legislative and general” and the process is more of a policy inquiry rather than adversarial (e.g. environmental impact assessment, CRTC hearings) the disclosure principle will carry less weight.

• Also, even in the cases where higher levels of PF are required, there may sometimes be compelling reasons to depart from the “full disclosure” rule:

• For example, confidentiality concerns may sometimes provide strong arguments against disclosure (national security, protection of others where there could be a possibility of reprisals such as police informants, privacy considerations).

• Re Abel and Advisory Review Board (1980 CanLII 1824, ONCA)• Chair of Board refused to disclose NCR patient information due to lack of express authority• Obligation to disclose stems from duty of PF• But there may be some issues for which it is not in public interest, or the interests of the health of the patient, to

disclose• Board could disclose to patients’ lawyer on undertaking not to disclose to patient – e.g. staff report about him that the

decision-maker would be taking into account in deciding if it would recommend his release • Suresh (2002) – valid reasons for reduced disclosure include “safeguarding confidential public security documents”• Chiarelli (1992) – national security considerations can limit the extent of disclosure: e.g. gov’t may refuse to disclose

details of investigation techniques and police sources• Charkaoui (2007) – non-disclosure of evidence at certificate hearings is rationally connected to the objective of

protecting Canada’s national security and related intelligence sources

KANE V BOARD OF GOVERNORS OF UBC (SCC 1980)• Kane was UBC prof suspended for improper use of computer• He appealed the decision to the Board of Governors, of which the UBC president was a member• Board held a hearing which Kane and the president attended• After the hearing the Board had dinner and met with the President, without Kane being present• Evidence suggested that the President gave the board “necessary facts”• He sought judicial review of the decision, but lost at the BCSC and BCCA• Succeeded at the SCC

Per Dickson, J.• Once hearing was held, the board was under an obligation to postpone further discussion until Kane could be present• At the very least, the board was obliged to provide with Kane the information it received from the president, and

given him “a real and effective opportunity to correct or meet any adverse statement made.”• By hearing further facts after the hearing, deliberating and ruling against Kane, the Board made “a fundamental error”.

EVIDENCE AND CROSS-EXAMINATION• As a general rule, administrative agencies are not bound by judicial rules of evidence unless the statute says so, and

often they state the contrary. • Thus, administrative tribunals can usually act on any "logically probative" material.• However, in practice many tribunals are influenced by the ordinary rules of evidence, particularly if they are making

decisions at the “high end” of the PF spectrum where individuals are charged with “wrongdoing” of some kind. In such hearings, the ordinary rules regarding evidentiary privilege can also be invoked.

• At the lower end of PF spectrum, tribunals will often err on side of allowing evidence, then saying it goes to “weight”

PRITCHARD (2004 SCC)• A complainant could not demand disclosure of a legal opinion prepared by the Commission’s in-house counsel, even

though that opinion was relied on by the Commission in deciding to dismiss the complainant’s complaint against her former employer.

• The Court held unanimously that the opinion was privileged and need not be released. The rules of solicitor-client privilege extended to legal advice provided to the Commission by its in-house counsel.

• The Court noted, however, that the privilege would not extend to non-legal advice, even if such advice was provided by counsel

• : (see text, p.415-6)41

Official Notice:• To what extent can an administrative decision-maker "can go beyond the record" to take “official notice” of certain

material facts and, if it can, what are its obligations to the parties vis a vis disclosure of such facts?• Many administrative decision-makers are appointed for their expertise and sometimes for their technical knowledge

and they are expected to use this expertise or knowledge in their decision-making – so there should be some room for them to rely on this expertise without having to “disclose” it to the parties.

• The policy of the law in this area must therefore attempt to reconcile the needs of procedural fairness with the need for full and free use of the expertise that is located within the agency.

• “Official notice” is the administrative law counterpart of the concept of “judicial notice”. It is generally recognized that judges can take “judicial notice” of 2 kinds of facts:(1) facts that are so notorious as to be not in dispute and(2) facts capable of immediate and accurate demonstration by resort to readily available sources of indisputable

accuracy• Under the concept of “official notice” admin d/makers can take note of the same kinds of things as judges can under

“judicial notice”. • But most administrative d/makers can do more, particularly if they have expertise that they are supposed to bring to

bear to the decision-making.• In Ontario, s.16 of the Statutory Powers Procedure Act tries to capture both of these notions: it provides that a

tribunal can take notice of any facts that could be judicially noticed and also of “any generally recognized scientific or technical facts, information or opinion within its scientific or specialized knowledge.”

• It is also important to note that there is also more scope of taking “official notice” where the decision-maker at issue is located more towards the lower end of the PF spectrum where the disclosure principle itself carries somewhat less weight (e.g. where the decision at hand is a policy oriented and discretionary decision).

• Additionally, another general principle is that that there is less scope to take notice of “adjudicative” facts as opposed to “legislative” facts:

• when a court or tribunal finds facts regarding the immediate parties (e.g. about their conduct – who? what? where? why? how?) this is an adjudicative function and the facts relevant to that function are adjudicative facts [facts to which the law or policy is applied]

• on other hand, when court or agency develops law or policy it is acting legislatively and the facts that help inform the tribunal's legislative judgment are "legislative facts" [facts that help the tribunal exercise its judgment or discretion] - these facts are more general than adjudicative facts and there is more scope to take official notice of this category of facts

• A good practice in many cases where there is doubt on this issue, the decision-maker should disclose what it intends to take “official notice” of and let the party have an opportunity to address the matter.

Cross Examination:• Here too, it is not possible to be categorical and say there is an absolute right to cross-examination in administrative

decision-making whenever there is an oral hearing going on.• Like everything else, it depends on the context as a whole and what PF requires in a given case to give a party an

adequate opportunity to be heard.• When the case is at the lower end of the PF spectrum, where more minimal fairness obligations arise, the court is less

likely to require cross-examination as part of PF• E.g. in the Irvine decision the SCC held that a hearing officer’s denial of cross-examination was okay because it

occurred in an early, “embryonic” investigative stage of a staged process under the Combines Investigation Act. “Fairness is a flexible concept” [78]

• Conversely, if a “high end” evidentiary-based process is going on, and wrongdoing is alleged against individuals as in human rights process or professional discipline, cross examination rights will likely be required as part of the process of “responding to the case against”, unless there is some overriding claim for privilege.

• Particularly where the credibility of witnesses is at stake, cross-examination rights are more likely to be required unless there are sufficiently off-setting interests that would militate against allowing such rights (e.g. protection of police informants).

• The extent to which cross-examination rights are necessary to provide a reasonable opportunity to make out a case or to challenge the case against a person can also relate to whether or not there are other viable and adequate alternatives to allowing cross-examination rights in all the circumstances of the case.

• If there are such alternatives available, then the case to demand cross-examination is weakened. For example, it may be difficult to demand to be able to cross-examine an expert witness directly on the expert’s written report, if it is

42

possible to otherwise adequately challenge that report through introducing competing expert’s reports and/or competing expert witnesses.

POST HEARING ISSUES: DUTY TO GIVE REASONS?When is there a duty to give reasons?

• Baker v. Canada (SCC, 1999)• Via Rail Inc. V. National Transportation Agency (FCA, 2001)• Newfoundland & Labrador Nurses Union (SCC, 2011)

Key issues:(1) When will reasons be required?(2) Sufficiency of reasons – what is required to meet the duty?

Why Require Reasons?1. Better decisions will result – writing reasons ensures that issues and reasoning are well-articulated and thus carefully

thought out & reduces chance of arbitrary or capricious decisions2. Accountability – giving reasons allows the parties to see that the facts, issues, law, have been carefully considered –

reinforces public confidence3. Instrumental value – reasons for a decision are invaluable if decision is to be appealed or questioned on judicial

review4. Legitimacy/acceptability – those affected by decisions are more likely to feel they have been treated fairly and

appropriately if they are given reasons [reassures that they have in fact been heard] 5. Future guidance – reasons for decision particularly in a regulatory context and where the questions decided are

questions of law or mixed law/fact can provide

Concerns about reasons?1. May impose an inappropriate burden on administrative decision-makers, especially if “judicial type reasons” are

expected/required2. Increased costs & delay in delivering the decision3. May just encourage the giving of “canned reasons” 4. Administrative decision-makers shouldn’t have to give reasons similar to those issued by judges

BAKER• Baker established the duty to give reasons as a PF issue• Per Madam Justice L’Heureux-Dube:

– concerns about requiring reasons can be dealt with by ensuring that such a requirement leaves sufficient flexibility to d/makers;

– courts should be prepared to accept various kinds of written explanations for the decision as sufficient; – courts should recognize the day to day realities of administrative agencies when assessing the adequacy of

reasons• The duty of fairness will require the provision of a written explanation for a decision:

– in cases such as this where the decision has important significance for the individual;– where there is a statutory right of appeal;– or in other circumstances

• “The profound importance of an H & C decision to those affected…militates in favour of a requirement that reasons be provided.  It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.”

• “In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz.  The notes were given to Ms. Baker when her counsel asked for reasons.  Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.”

• Baker leaves a lot of room for judicial discretion to require reasons• And lots of room for discretion on what constitutes reasons

• Lorenz wasn’t the decision maker43

• The notes were riddled with stereotypes & prejudice• Q: Does this typify the duty to provide reasons?

VIA RAIL V NATIONAL TRANSPORTATION AGENCY(FCA, 2001) See text, p.416, footnote 34

• Wheelchair basketball athletes and their attendants faced difficulties with VIA Rail’s services for disabled passengers• Complained to NTA, which investigated and found that VIA had “undue obstacles” to boarding and deboarding that

could have been easily avoided• VIA was providing free fare for attendant of each disabled person, and asked NTA to require that the attendant be able

to help passenger board/deboard• NTA decided this was VIA Rail’s obligation• VIA Rail challenged on basis NTA’s reasons were inadequate (among other grounds)

HELD:• Duty to provide reasons is not satisfied by merely reciting the submissions and stating a conclusion• Reasons must address the central points in issue and reflect consideration of the main relevant factors• After extensive analysis of the terms “undue” and “obstacle”, the FCA held that the NTA failed to “provide sufficient

insight into the reasoning process that it followed” and therefore erred in law.• But given the extensive discussion and analysis of the NTA’s decision and its own analysis, was the court simply

substituting its own preferred outcome?• See next, more recent case from SCC – Nfld & Labrador Nurses Union

SURESH• Recall that Suresh was found not to be engaged in terrorism, but was believed to be a fundraiser – and therefore a

member of a terrorist organization who would likely be tortured if deported.• The Minister’s determination that he was therefore “inadmissible” under s.53(1)(b) of the Immigration Act involved

“no provision for a hearing, no requirement of written or oral reasons, no right of appeal — no procedures at all” [117]

• Where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation, the Minister must provide written reasons for her decision dealing with all relevant issues [127]

• See text, p.416• [126] The Minister must provide written reasons for her decision.  These reasons must articulate and rationally

sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. 

• The reasons must also articulate why…the Minister believes the individual to be a danger to the security of Canada as required by the Act. 

• [126] In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier.  Mr. Gautier’s report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor’s brief than a statement of reasons for a decision.

• [127] These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from torture or similar abuses.

• Q: If Lorenz’s notes in Baker constituted reasons, why didn’t Gautier’s in Suresh?

NEWFOUNDLAND AND LABRADOR NURSES’ UNIONFacts:

• Labour arbitrator’s made award that involved the calculation of vacation benefits. • Arbitrator had to decide whether time as a casual employee could be credited towards annual leave entitlement if that

employee became permanent.

44

• In his 12-page decision, the arbitrator concluded that it was not to be included in calculating the length of vacation entitlements (because casuals were excluded in Collective Agreement from vacation entitlements and received 20% of salary in lieu)

• On judicial review, the arbitrator’s reasons were found by trial judge to be insufficient and therefore unreasonable and the decision was set aside. Judge wanted “more cogent” reasons.

• Union argued that arbitrator’s reasons were so flawed they constituted “no reasons”• If Baker & PF “correctness”• If Dunsmuir & SR “reasonableness”• SCC said this argument “can be easily disposed of”

SCC Held:• “Adequacy” of reasons is not a stand-alone basis for quashing a decision• Reasons need not include all the arguments or details the reviewing judge would have preferred – failure to include all

of the reasons does not impugn the validity of either the reasons or the result.• If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine

whether the conclusion is within the range of acceptable outcomes, the criteria are met.• Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some

form of reasons” for a decision. • Baker did not say that reasons were always required, and it did not say that the quality of those reasons is a question of

procedural fairness.SCC Held:

• If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 

• It is an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness. 

• Any challenge to the reasoning/result of the decision should be made within the reasonableness analysis.  • Here, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the

range of reasonable outcomes.

PROCEDURE AND THE ATA

SUMMARY OF KEY ASPECTS OF THE ATA

ATA

BIAS AND IMPARTIALITY AS GROUNDS FOR CHALLENGE UNDER PF1. Background: Bias as Part of Natural Justice/Procedural Fairness2. What are the underlying purposes of the Rule Against Bias?3. Mere Absence of Bias is not enough; must also be no APPEARANCE of Bias4. Definitions of Bias, Flexible Standards, Alternate Standards or Tests 5. Identifying Bias Issues/ Possible Bias Situations6. What is the Legal Effect of Bias and the Process for Dealing With It?7. Defences to Bias Allegations8. Lack of Independence – An Emerging Ground for Challenging Some Decision-Makers

BACKGROUND TO BIASRule against bias is part of Natural Justice/Procedural Fairness Natural Justice has two limbs:

45

 1. audi alteram partem: hear the other side – procedural entitlements associated with the conduct of a fair hearing process such as notice and a reasonable opportunity to be heard – to make one’s case and to address/oppose the case against one (“participatory rights”) 2. nemo judex in causa propria sua debet esse – no one ought to be a judge in his or her own “cause”: this is the RULE AGAINST BIAS  It reflects the idea that justice requires that decisions be made by an impartial, unbiased decision-maker: neutrality/disinterestedness

[note that Rule Against Bias can be framed positively as a duty of impartiality on the part of a decision-maker]• historically, the Rule Against Bias was seen as part of NJ and, like audi alteram partem, it originally applied only to

judicial or quasi-judicial decision-making• now the Rule Against Bias clearly extends also to other administrative decisions (Energy Probe, Baker, Imperial Oil)  • hence, as in the case of procedural obligations generally, • THERE IS NO LONGER ANY NEED to classify the administrative decision as either judicial or quasi-judicial in order for

the Rule Against Bias to apply 

• The present approach characterizes the Rule Against Bias as part of the larger obligations associated with PF: for example:

In Baker, Justice L’Heureux Dubé stated:• “Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial

decision-maker.”In Newfoundland Telephone, Justice Cory stated:

• “The duty to act fairly includes the duty to provide procedural fairness to the parties. That cannot exist if an adjudicator is biased.”

In Imperial Oil, Justice LeBel stated: • “The duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative

justice.”• HOWEVER, as with other procedural fairness obligations, the Rule Against Bias varies in its application, depending

on the context of the decision-making at issue in any given case (the nature and impact of the decision, the nature of the decision-maker, the statutory context etc.)

• Also, in some circumstances, different “tests” have been developed by the courts to determine what constitutes bias, depending on the kind of decision-making at issue (e.g. an expressly “relaxed” standard applies to municipal councilors when “prejudgment” is alleged as the basis for a bias objection):

• ...the content of the duty of impartiality ..., like that of all of the rules of procedural fairness, may vary in order to reflect the context of a decision-maker’s activities and the nature of its functions ... . These variations in the actual content of the principles of natural justice acknowledge the great diversity in the situations of administrative decision-makers and in the roles they play, as intended by legislatures ...

• The categories of administrative bodies involved range from administrative tribunals whose adjudicative functions are very similar to those of the courts, such as grievance arbitrators in labour law, to bodies that perform multiple tasks and whose adjudicative functions are merely one aspect of broad duties and powers that sometimes include regulation-making power.  The notion of administrative decision-maker also includes administrative managers such as ministers or officials who perform policy-making discretionary functions within the apparatus of government.  The extent of the duties imposed on the administrative decision-maker will then depend on the nature of the functions to be performed and on the legislature’s intention.  ...

PURPOSE OF RULE AGAINST BIAS(i) to foster public confidence in the process and the substance of administrative justice: to foster legitimacy and

acceptability of decisions (ii) to promote substantive fairness (better decisions):

decisions made by unbiased d/makers are presumed to be more likely to be substantively fair and “correct” than would be the case if the decision were made by a biased d/maker(iii) to support participatory procedural rights

• the Rule Against Bias is directly linked to the right to be heard and to have a reasonable opportunity to participate in the d/making process

• (i.e. can you REALLY say you have been heard, and have had a reasonable opportunity to put your case, if you have been heard by a biased d/maker?)

• (iv) the impartiality principle is also be linked to the rule of law and the pursuit of equality: •  

46

• rule of law: Canadians want to be governed by known laws, duly enacted by our legislators, and applied even-handedly so that like cases are treated in a similar manner, without favouritism and regardless of social, economic or political status, and regardless of personal connections or relationships

•  • the pursuit of equality also demands non-discrimination on grounds such as race, gender, sexual

orientation, ethnicity, or age, etc. so any bias on these grounds runs afoul of equality goals

GENERAL PRINCIPLES AND BASIC TEST FOR ROAB

ABSENCE OF ACTUAL BIAS NOT ENOUGH: ROAB• in order to attain the purposes of the Rule Against Bias, it must operate through the well-understood principle that

“justice must not only be done but must also be seen to be done” (R. v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259 (text p.242, footnote 30)

• the reference here to “be seen to be done” underscores the public confidence rationale: • the perceptions of the public are very important and public confidence in the decision-making will not be achieved

unless the appearance of bias is avoided (as well as actual bias itself)• hence, the standard test for bias is the REASONABLE APPREHENSION OF BIAS test (RAOB)

DEFINITIONS AND STANDARDS2 preliminary points:

(i) doesn’t require an “opinion free zone”; (ii) no need to prove actual bias 

***(i) bias does not encompass any and all pre-dispositions or attitudes that a decision-maker might have

All d/makers are human and bring with them the “intellectual baggage” of their own values, beliefs systems, experience and knowledge – the Rule Against Bias must take account of this in a realistic way and cannot be understood in an absolute sense (see paras 107 and 119-120 of R. v. RDS on CourseSpaces)

• Bias has an attitudinal and behavioural component• It’s not enough to point to beliefs, opinions, etc. – those beliefs & opinions, must cloud judgment on the evidence• Rule does not require judges to discount life experiences, sympathies, antipathies, attitudes• True impartiality…requires…an open mind• Hence, the Rule Against Bias seeks to identify specific situations that a court will see as inappropriate and

unacceptable in a particular context and a particular set of circumstances – what is a disqualifying bias?• What constitutes a disqualifying bias will differ in different legal settings or contexts (see Imperial Oil – text,

pp.257-8)• Need for context specificity is especially obvious in administrative decision-making, given: • the widely different nature of administrative d/makers and the wide variations in the kinds of d/making that takes

place• the fact that some administrative d/makers are appointed precisely because of their capacity to represent certain

interest groups, or because they possess particular expertise or familiarity with the subject-matter on which they will be making decisions; this reality must be recognized and accommodated in the law regarding bias

(ii) there is no need to prove ACTUAL bias in the mind of the d/maker • it is enough to prove a Reasonable Apprehension Of Bias• actual bias would also be very difficult to prove the inner “state of mind” of decision-makers when making their

decisions• there are also concerns about the practicality and propriety of calling upon d/makers to testify about whether or not

they are actually biased or not [d/makers enjoy adjudicative privilege in this regard]• result: there is no need to prove actual bias, rather other “tests” for bias are used which, if met, disqualify the d/maker

because of the perception of bias, regardless of whether or not there was actual bias (See R. v. S. (R.D.) per Justice Cory at paras 109-110)

47

STANDARD TEST FOR RAOB• Standard test for bias is the reasonable apprehension of bias test (RAOB) from the dissenting judgment of Justice de

Grandpré in Committee for Justice and Liberty v. National Energy Board (cited in Baker and RDS)• ... 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. ... [the] test is “what would a informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker] whether consciously or unconsciously, would not decide fairly?”

• this means that a RAOB will exist where a reasonable person, well-informed about all the facts concerning the d/maker, would conclude that the d/maker may be influenced (even if unintentionally or subconsciously) to favour or disfavour one side or the other because of some kind of interest of prejudice the d/maker has in the outcome

• need NOT show that the apprehended bias actually affected the decision, it is enough if it might reasonably be perceived to have done so

Justice Cory in R. v. S. (R.D.) SCC 1997 para. 111 says the RAOB test has a “two-fold objective element:”(1) person considering the alleged bias must be reasonable; and(2) the apprehension of bias must also be reasonable in the circumstances of the case

Further, this reasonable person also:• must be informed of all relevant circumstances; and • must not have a “very sensitive or scrupulous conscience”• Finally, the grounds for a RAOB must also be “substantial” and allegations of bias should not be made lightly [mere

suspicion is not enough] (See R. v. S. (R.D.) at para 112-113)

FLEXIBILITY IN RAOB STANDARD:Bias is context specific – the standard test (RAOB) can be applied flexibly in admin law settings

• In administrative decision-making, the standard RAOB test is applied on a kind of spectrum to account for different contexts 

• There are differing levels of tolerance for pre-existing attitudes, prior involvement, relationships, depending on the nature of the decision, the nature of the decision/maker, and the applicable statutory provisions

• if the decision-making is more court-like (adjudicative) the RAOB test applies more strictly than it does when the decision-making is discretionary, policy-based, “legislative” (i.e. not court-like) see, e.g., Imperial Oil (Moodle)

• contextual factors about the nature of the decision-makers and the nature of the decision-making is also relevant

ALTERNATE TESTS FOR RAOB• In certain cases, alternate tests for bias have been developed for specific kinds of contexts

(a) Pecuniary Interests (aka “conflicts of interest”) (b) “Relaxed” Standard (for certain kinds of bias allegations in certain kinds of contexts) 

BAKER

R V S.(R.D.)

IMPERIAL OIL LTD. V QUEBEC

SPECIFIC EXAMPLES OF INDIVIDUAL BIAS ISSUES• There are different ways to categorize basis; there is no universally accepted classification system • Key point is to be able to recognize different kinds of circumstances that might give rise to bias allegations/issues• Different kinds of situations where bias issues might arise include:

1. Pecuniary interest/conflict of interest2. Personal or Business relationship with parties or counsel3. Prior knowledge or involvement of decision-maker at earlier stages4. Attitudinal predisposition or prejudgment 48

5. Personal animosity arising/evidenced during hearing6. institutional/structural bias

PECUNIARY OR OTHER MATERIAL INTERESTS IN THE OUTCOME• The test for pecuniary interests bias is stricter in theory as it is said that any direct personal pecuniary interest in a

matter is enough to disqualify (Energy Probe)  • In such cases ( i.e. where there is a direct financial interest in the outcome) bias is presumed, and disqualification is

automatic, without regard to the RAOB test (Energy Probe) • Case law (e.g. Energy Probe) suggests that to be considered “direct” and thus trigger automatic disqualification, the

pecuniary interest at issue must be adjudged to be sufficiently certain, not too remote, and not contingent• However, if a financial interest is considered to be indirect, the RAOB test applies (Pearlman)

• Situations in which decision-maker has a pecuniary (economic) interest in the outcome of the decision – where he or she stands to benefit or lose from the decision in a material sense that will have an impact on the pocketbook

– Energy Probe v. Canada (Atomic Energy Ctrl Brd) p.259.– Pearlman v. MB Law Society; p.259 (footnote 90)– Imperial Oil v. Quebec (p.257 + CourseSpaces)– Bennett and Doman (CourseSpaces)

ENERGY PROBE V CANADAText, p.259

• Atomic Energy Control Board was to decide on Ontario Hydro nuclear power plant licence renewal. • Board member Olsen was president of co. that supplied nuclear tech equipment to Ontario Hydro. Is this “direct

pecuniary bias?”• He would have to bid competitively. • On the hearing dates in question he had no contracts with ON Hydro.• Therefore any bias was too “indirect and remote” • CL on Bias is more flexible when financial interest is indirect.

PEARLMAN V MANITOBA LAW SOCIETY1991 CanLII 26 (SCC)Text, p.259, footnote 90

• P was lawyer disciplined for “conduct unbecoming a lawyer”• Among other things, he argued that the award of costs against him following an adverse finding was contrary to

principles of natural justice because the Law Society panel members stood to gain financially from costs order against him – because they would have reduced Law Society membership fees

• Law Society disciplinary committee was not “systemically biased” just because P’s disbarment reduces competition in practice of law.

• Any reduction in fees is miniscule – too remote to constitute bias or RAOB• No reasonably well-informed person would agree with P

PERSONAL OR BUSINESS RELATIONSHIPS WITH THOSE INVOLVED IN THE DISPUTE• Situations in which the decision-maker has a past or present relationship either with those who are either directly

involved in the decision as parties or counsel, or with those who have an interest in the outcome in the sense that they may either gain a benefit or suffer a detriment as a result of the decision.  

• Family, business, professional, associational or friendship relationships can all provide grounds for disqualification if it can reasonably be perceived that, because of the relationship, the decision-maker may be (consciously or unconsciously) inclined to favour or disfavour a particular outcome 

– Bennett and Doman (CourseSpaces)

49

BENNETT AND DOMANBCCA, 1993 (see CourseSpaces)

• Premier Bennett & Doman faced insider trading investigation concerning Doman’s timber business• Sup’t of Brokers appointed 3-person panel, including a director of Crestbrook Forest Industries (Devine)• B & D argued RAOB because Devine is director of a competitor company – Crestbrook could financially gain if Doman

found guilty of insider trading• The two other panel members heard the argument and said Divine ok because no competition between Doman &

Crestbrook

Southin, J.A.• The reasonable person is, of course, a mythical creature of the law.• In a matter as close to the line as this, some reasonable persons might say "What's the problem?" and others might

well say "It does not seem quite right for him to sit". • In this case, acknowledging that the concept of apprehension of bias is being taken as far as it is rational for it to be

taken, I come to the conclusion that it is not just that Mr. Devine should sit.• Ratio: In such a high profile case as this, where it is likely easy for the Sup’t to find a replacement for Devine not

connected to the timber industry, why run the risk of the appearance of bias?

PRIOR KNOWLEDGE OR INVOLVEMENT AT EARLIER STAGES• Situations in which there is a some kind of pre-existing relationship between the decision-maker and the general

subject-matter at issue in the decision • Includes situations in which decision maker has had some kind of prior involvement with the specific case or issue

now before him/her for decision or where the decision-maker has previously expressed strong views and opinions on the matters at issue in the proceedings

– Committee for Justice & Liberty v. NEB; p.256– Wewaykum Indian Band v. Canada (CourseSpaces)

COMMITTEE FOR JUSTICE AND LIBERTY1976 CanLii 2 (SCC) - sets out the standard test for bias

• Federal Cabinet appointed Crowe as Chair of the National Energy Board in October 1973, and he chaired panel on McKenzie Valley Pipeline.

• But just before NEB, Crowe was with Canada Development Corp. and active member of study group for McKenzie Valley pipeline. CDC granted $1.2M to study how to get gas from north to south.

• Crowe participated in the seven meetings held during that time and joined in a unanimous decision of the Committee on June 27, 1973, respecting the ownership and routing of a Mackenzie Valley pipeline

• Crowe he didn’t stand to lose or gain personally – so no actual bias• But reasonable apprehension of bias - due to prior involvement.

Majority (5:3)• A reasonable apprehension of bias arises where there exists a reasonable probability that [the judge] might not act in

an entirely impartial manner.• The test of probability or reasoned suspicion of bias…is grounded in the concern that there be no lack of public

confidence in the impartiality of adjudicative agencies, and • emphasis is added to this concern in this case by the fact that the Board is to have regard for the public interest.

Minority’s expression of the test has become the standard:• 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, the test of “what would an informed person, viewing the matter realistically and practically—conclude?”

• Minority thought reasonable people would not perceive an apprehension of bias.• Favourite quote from dissent: “Cabinet officers....with adjudicatory functions are not assumed to be flabby creatures

any more than judges are.”

WEWAYKUM INDIAN BAND V CANADA2003 SCC 45:

50

• Two bands claimed each others’ reserves and lost at trial, appeal and the SCC in a unanimous 2002 decision written by Binnie, J.

• After the decision Wewaykum filed ATIP requests regarding decisions made by Binnie, J. when he was Associate Deputy Minister of Justice

• A memo was found in which it became apparent that Binnie had attended a meeting that discussed the litigation in 1985

• Both bands claimed that this gave rise to a RAOB, and that the judgment was tained as Binnie, J. should have recused himself, and judgment should be vacated

• SCC (exc. Binnie) assessed facts and applied RAOB test:• Binnie had overseen almost all litigation involving Canada, exc. Tax & Quebec, i.e. thousands of cases over 15

years• He had no recollection of this case• He had a limited supervisory and administrative role• He was never counsel of record

• No reasonable person, viewing the matter realistically, would conclude that his ability to remain impartial was unconsciously affected by his limited role 15 years ago

• Even if the involvement of a single judge had given rise to a reasonable apprehension of bias, no reasonable person informed of the decision-making process of this Court and viewing it realistically could conclude that the eight other judges who heard the appeals were biased or tainted.

ATTITUDINAL PREDISPOSITION (PRE-JUDGMENT) AND DIFFERENT CONTEXTUAL STANDARDSWhen can attitudes and comments of decision maker suggest he or she is predisposed to a certain outcome and therefore biased?

• A specifically “relaxed test” for bias has been developed in cases of alleged “pre-judgment” where elected decision-makers such as municipal councilors are concerned (Old St. Boniface Residents Association, Save Richmond Farmland Society)  

• When it is alleged that such d/makers have “pre-judged” a matter, or have an inappropriate level of predisposition towards an issue, the test courts will use is whether they have kept an open mind and “remained amenable to persuasion” – they must not have a closed mind

• This relaxed standard also applies in cases of policy-oriented boards in relation to comments that board members might make prior to a hearing, particularly where the board members are expected to be representative of particular interests;

• However the SCC has held that such board members must nevertheless abide by the “normal” (RAOB) standard once a hearing has actually commenced (Newfoundland Telephone)

R. V RDS1997 CanLII 324 (SCC)

• Trial judge dismissed charges of obstruction, resisting arrest against 15 yr. old black youth in face of highly discrepant testimony

• Trial judge made comments about white police in the area & racial dynamics• Crown appealed, arguing judge was biased• Nova Scotia Supreme Court and Court of Appeal agreed and ordered new trial.• Is a judge biased if she says the following?• “The Crown says, well, why would the officer say that events occurred the way in which he has relayed them to the Court

this morning. I am not saying that the Constable has misled the court, although police officers have been known to do that in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent attitude of the day.

SCC -- 6:3 decision• Majority (4) said impartiality is very important, but comments were not out of line. • Reasonable person would not say she was biased – just aware of street life reality. • 2 (concurring) said: “close to the line” and “worrisome” but do not amount to RAOB• 3 said: There is a RAOB because her comments = stereotyping of the police officer in a way that might reasonably

have appeared to affect her judgement as to credibility

51

NEWFOUNDLAND TELEPHONE CO. V NEWFOUNDLAND1992 CanLII 84 (SCC)

• Outspoken consumer rights advocate (Wells) appointed to the Board of Commissioners of Public Utilities• Wells made several strong statements in the press against Nfld Tel's executive pay policies before a public hearing

Two issues: 1. the extent to which an administrative board member may comment on matters before the board and, 2. the result which should obtain if a decision of a board is made in circumstances where a reasonable apprehension of

bias is found. Wells’ comments:

• Nfld Tel’s pay & benefits package is “ludicrous” and “unconscionable”• "If they want to give Brait and the boys extra fancy pensions, then the shareholders should pay it, not the rate

payers…”• “So I want the company hauled in here -- all them fat cats with their big pensions -- to justify (these expenses) under

the public glare ... I think the rate payers have a right to be assured that we are not permitting this company to be too extravagant.”

• "Who the hell do they think they are? The guys doing the real work, climbing the poles never got any 21 per cent increase.”

• “I'm not having anything to do with the salary increases and big fat pensions…”• A member of a board which performs a policy-formation function should not be susceptible to a charge of bias simply

because of the expression of strong opinions prior to the hearing. • As long as those statements do not indicate a mind so closed that any submissions would be futile, they should not be

subject to attack on the basis of bias. • Statements manifesting a mind so closed as to make submissions futile would, however, even at the investigatory

stage, constitute a basis for raising an issue of apprehended bias. • But once the matter reaches the hearing stage a greater degree of discretion is required of a member. • See paras.34-37 for what Wells could say and not offend bias rules• Procedural fairness at that stage required the commission members to conduct themselves so that there could be no

reasonable apprehension of bias.• Wells crossed the line by continuing to comment after hearing began and before the decision – he showed a closed

mindOn Remedy:

• A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent decision. • A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a

result of the subsequent decision of the tribunal. • The damage created by apprehension of bias cannot be remedied.

Commentary on Admin Tribunals:• Good discussion in paras. 17 - 29 on nature, role, composition and duty of admin tribunals• SCC acknowledges that standard is more lenient for local governments and policy-oriented tribunals• E.g. local government politicians elected on pro-development platform can bring their predispositions into hearing

(Save Richmond Farmland Society case)

CHRETIEN V CANADA2008 FC 802 (CanLII)

• A public inquiry before an impartial and independent commissioner which investigates…and makes recommendations for change can help to prevent a recurrence.. and to restore public confidence

• The inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated.

• no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly

• [44] see discussion of threshold issues in Cardinal v. content of PF issues in five Baker factors.Court then goes on to carry out Baker analysis:

• [45-49]: nature of the decision & process• [50-52]: nature of the statutory scheme• [53-56]: importance of the decision to the individual• [57-59]: legitimate expectations • [60]: procedural choices of the decision maker

Conclusion: [61]• I find that the applicant was entitled to a high level of procedural fairness before the Commission.

52

• Although the nature of the proceedings do not provide for the same level of procedural fairness required in a trial, the potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation was of such serious consequence that a high degree of fairness was required.

• What does this mean for bias?• If Newfoundland Tel said there is a spectrum for RAOB, where does this fall?

• High (judicial) end (Gomery was judge and appointed due to fact-finding skills)?• Low policy tribunal end? (where C would have to prove Gomery had a “closed mind”)• Somewhere in between? (YES – somewhere between middle and high end of spectrum under Nfld Tel

analysis) [73]Application of RAOB test to this case:

• Court rejects factor that Gomery’s daughter is partner at law firm frequented by Conservative Party lawyers – not relevant

• Viewing Gomery’s media comments, court found that “an informed person, viewing the matter realistically and practically and having thought the matter through, would find a reasonable apprehension of bias on the part of the Commissioner. [80]

• The comments made by the Commissioner, viewed cumulatively, not only indicate that he prejudged issues but also that the Commissioner was not impartial toward the applicant.

Why? [77–108]• the Commissioner formed conclusions about issues he was to investigate and report before having heard all the

evidence • “program was run in a catastrophically bad way”• “juicy stuff is yet to come”• “What’s Chretien got to hide?” (Commission staff, but endorsed by Gomery)• PM putting name on golf balls was “small-town cheap” and “vaudeville show”• This created a sense that the proceedings were perfunctory and G • G had duty not to reach conclusions until all evidence heard, including hearing from Chretien.

ANIMOSITY• Situations in which d/maker's conduct or comments during the proceedings (e.g. hostile questioning of witnesses,

rude behaviour, disparaging remarks) gives rise to an allegation that he or she holds, or has developed, a particular animosity or a discriminatory attitude towards a party or a counsel

• Animosity is sometimes referred to as “actual bias” because the bias becomes evidenced in the actual behaviour of the decision-maker during the hearing process

– Baker [comments & CAPITALS in Officer Lorenz’s memo]

INSTITUTIONAL / STRUCTURAL BIAS• Situations in which a perception of bias may arise because of the way in which the agency or its decision-making

processes have been structured or designed.  • Bias is institutionalized because it is to some degree "built in" to the decision-making process, either by the enabling

legislation itself or by policies and procedures established by the agency • Any of the kinds of bias referred to above could be institutionalized; e.g. pecuniary interests or predispositions could

be built into an administrative scheme if some members of a tribunal have a financial or attitudinal interests in the outcome of their decisions (egg marketing boards might have egg farmers on it)

• Another example is "overlapping functions", where the same person investigates and adjudicates or investigates, determines that a hearing should be held, and then appoints the decision-makers to hear the matter [prior involvement with the subject matter is institutionalized]

LEGAL EFFECT OF BIAS• Bias, where it is found to exist, disqualifies a d/maker from making a valid decision and causes a loss of jurisdiction• Hence, possible remedies for bias are:1. where a complaint arises before a decision is made, it can sometimes be the basis for an order of PROHIBITION

(although courts will often refuse to entertain the matter until after the tribunal has made a final decision on the merits of the case on the basis that the application is premature)

2. a complaint of bias that arises after a decision is made can be remedied by quashing the decision or setting it aside as invalid (an order in the nature of certiorari or a declaration of invalidity)

Process for dealing with bias:

53

• When a bias issue arises before or during a hearing process, the party affected should raise the matter with the d/maker and ask the d/maker to disqualify himself or herself (either “recuse” or “refuse to recuse”) 

• Decision-maker hears the parties on the matter and makes a ruling• If decision-maker does not disqualify self, party alleging bias:

(a) might try to seek JR immediately (but could then be met with the problem of prematurity and the court might refuse to rule on the bias issue until the d/maker has made a final decision on the merits of the case as a whole)Or(b) might decide (because of possibility of prematurity being found) to continue in the proceeding, while continuing to maintain the bias objection, --- after the final decision, if the party loses – can then seek JR and raise bias and any other grounds for JR at that point

DEFENCES TO BIAS There are 3 defences to bias:

1. Statutory authority2. Necessity3. Waiver

Always remember that what constitutes “bias” will be different in different contexts - what is a disqualifying bias in some contexts will not necessarily be a disqualifying bias in other contexts

STATUTORY AUTHORIZATION DEFENCE Where a statute expressly or by necessary implication authorizes a DM to decide a matter, despite what might

otherwise be seen as a disqualifying bias, the statute governs and statutory authorization is a complete defence: Brosseau v. Alberta (Securities Commission): Chair of SC panel who received investigative report concerning B: Was

he both “investigator” and “adjudicator” giving rise to RAOB? No. Overlap of functions is authorized by statute, so long as statute is constitutional P.274 of text, footnote 155.

To overcome this must resort to a “rights document” such as Charter s. 7 or the Canadian Bill of Rights (if the decision-maker was federal) to “trump” the statute and strike down provision that authorizes the allegedly biased DM to decide

CUPE V ONTARIO (2003 SCC) HELD: the legislature specifically conferred power of appointment on Minister. 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.

We’ve discussed this case previously as an unsuccessful attempt to apply the Legitimate Expectations Doctrine. CUPE also argued that: (1) retired judges appointed by Minister to a labour arbitration board were biased as a class, and (2) that Minister of Labour was biased in making the appointments because he had an interest in cost cutting, “public sector rationalization” and the outcome of this arbitration involving health workers.

NECESSITY If DM who labours under disqualifying bias would be the ONLY POSSIBLE decision-maker authorized to make the

decision in question, this will be accepted and the decision-maker can decide, despite the RAOB Otherwise there would be a failure of justice

WAIVER Parties who know about bias can waive it expressly or impliedly Implied waiver can occur only if the person alleged to have waived knew about the bias and knew also that they could

object to it, but nevertheless elected to proceed w/o making objection & thereby lose their right to complain about bias Waiver is a discretionary ground on which court can refuse relief to A found to have waived their right to object

54

LACK OF INDEPEDENCE Sometimes subsumed under bias, but is now usually treated as a separate issue & a separate basis for judicial intervention Can refer to either a specific DM (individual independence) or to the institutional status of the agency or tribunal as a

whole (institutional independence)

INDIVIDUAL INDEPENDENCE Whether the individual DM is inappropriately dependent on someone else in the decision-making process, given the

nature and context of the decision-making at issue Individual DMs who hold adjudicative hearings at the higher end of the PF spectrum are required to make up

their own minds as individuals, and must not be “in the thrall” of others, including others w/i agency (the chair, lawyers, Minister, other tribunal members who did not sit on the case and did not hear the evidence and arguments, etc.)

INSTITUTIONAL INDEPENDENCE Extent to which the administrative agency must be free (and must appear to be free) from interference or control

by others, particularly others within the executive or political branch of government e.g. Is National Energy Board independent if Prime Minister Harper says the Enbridge pipeline should be approved

because it is in national interest?

In this context, the issue becomes the extent to which ADMs in some contexts require something similar to judicial independence in terms of the Valente criteria

Valente criteria used to measure judicial independence:1. Security of tenure2. Security of remuneration3. Security (independence) in the administration of the cases that come before them

Developing area of the law and is still uncertainty re when independence is needed and what kind of independence should apply to administrative decision makers of different kinds

See also Ocean Port Hotel and CP v. Matsqui Indian Band

ABORIGINAL ADMINISTRATIVE LAW Aboriginal administrative law is an emergent area of administrative law Introduces further questions about legitimacy of decision-making and proper relationships among not just branches of

one state but between different nations

Developing Administrative Justice for Aboriginal Self-Government Recognition of 4 non-exclusive types of ASG:

1. Sovereignty and self-government2. Self-management and self-administration3. Co-management and joint management4. Participation in public governance (e.g. Nunavut)

Challenge: How to draw from indigenous legal traditions & Canadian law to strike best ASG structure & functioning?

Applying Administrative Law to Aboriginal DMs Note: Indian Act and Metis settlement councils are currently reviewed by Canadian courts Question: Does ASG demand a different system?

• Are fairness and deference doctrines equally applicable in the ASG context?• Does the answer to this hinge on how much the form of ASG is already tethered to the administrative state?

Note: Independence issues have arisen prominently here

Duty to Consult and Accommodate Important tool of state accountability and reconciliation Courts have drawn from administrative law to give life to the duty to consult (DTC) regarding the management of

land and resources, etc. 55

Question: Is this a good development? Can administrative law meet the aspirations of reconciliation? Question: Can administrative law merge with indigenous legal traditions? Note: this is the most developed issue of this emergent area in terms of case law.

PRELIMINARY POINTS Legal pluralism and porous boundaries Ongoing struggle between assimilation, integration, and transformation Why is it difficult for indigenous legal traditions to prevail?

5. Interaction between systems can alter the nature of the parties, values, traditions involved6. Decentralized and less hierarchical traditions run up against centralized and top-down ones

Participation in Public Government, Co-Management, Shared Management Recall nature of these entities: Public government – SG through representation

o Key example: Nunavut Land Claims Agreement (NLCA) Co/Shared Management – SG through involvement of Aboriginals in ADMS outside Aboriginal communities

o examples: Mackenzie Valley Environmental Impact Review Board, Haida Gwaii Management Council (HGMC)o HGMC deliberately created as separate from BC treaty process. HGMC consists of two members of the Haida

Nation, two members appointed by the LGIC and a Chair acceptable to both parties. Question: can meaningful implementation of indigenous values/aspirations occur in decision-making through these

routes? How can administrative principles be developed to facilitate respect for indigenous traditions in these forms of ASG?

Self-Management and Administration Recall: ASG through exercise of powers that are state-granted. Key examples: Indian Act band councils, Metis settlement councils (Alberta’s Metis Settlement Act) Band elections and band membership may be determined according to custom; otherwise default rules apply 243 to 341 First Nations have created own codes. Question: how should administrative law apply, if at all, to discretion and factors used by ASG decision-makers?

Self-Government and Sovereignty • Literature focuses on demonstrating need for ASG, not much focuses on details of how it will work.• Some examples though Nisga’a First Nation’s Nisga’a Lisims Government (NLG) as defined in the Nisga’a Final

Agreement: Chapter 11: powers of NLG and relationship to federal and provincial gov’ts laid out Nisga’a Administrative Decisions Review Act, 2000: establishes the Nisga’a Administrative Decisions review

Board; reviews administrative decisions of Nisga’a institutions; grounds of review very similar to administrative law principles (jurisdictional error, procedural fairness violation, factual error)

OVERARCHING QUESTIONS• Who should review ASG institutions? • Do s.96 and Crevier apply? • Can Canadian courts legitimately/properly review ASG institutions? • Should administrative law principles be used to judge ASG administrative processes involving disputes within aboriginal

communities?

FRAMEWORKS

ABORIGINAL RIGHTS: PROOF AND INFRINGEMENT Proof of rights: Applicable test re the nature of the right Extinguished pre-1982? Infringement & Justification:

Prima facie infringement? “Compelling and substantial” objective?

56

Infringement consistent with the honour of the Crown? Has the Crown consulted affected Aboriginal community regarding the infringement?

DUTY TO CONSULT1. Is there a duty? (threshold or trigger)2. What is the content of the duty? And has that duty been met?

RIO TINTO Breaks “trigger” down into 3 elements:

1. The Crown has real or constructive knowledge of the potential existence of an aboriginal right2. The Crown contemplates conduct3. With potential adverse affects

Trigger criteria defined broadly, but past infringements will not trigger current DTC Instead, past wrong may result in damages remedy. Modern treaties do not exclude DTC (Little Salmon).

CONTENT OF DUTY

HAIDA A spectrum: “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the

existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”(Haida, para 39)

Procedural Aspects: Providing affected communities with notice, holding meetings, sharing information, responding to community concerns. Can be fulfilled through existing public consultation processes (e.g., environmental assessment) in appropriate

circumstances (Taku River Tlingit (2004)) Aboriginal communities have an obligation to participate in good faith (para. 42)

Substantive Aspects : The idea of “accommodation,” where appropriate:

o May be an adjustment to the intended project (i.e., move where the road goes); a change of policy (i.e., change how many or how licenses to take water are issued); compensation; deciding not to go ahead with a project; etc.

o Required so that consultation is “meaningful” but consent to the project is generally not required. o Consent may be required in relation to strong rights claims/proven rights (esp. title) but otherwise rare.o Seems to contradict international law: UNDRIP refers to consultation obligations and require the “Free, Prior, and

Informed Consent” of indigenous peoples to developments in their traditional territories (FPIC)

DUTY TO CONSULT VS PROCEDURAL FAIRNESS Both duties are easily triggered. Both duties have spectrums. DTC has given rise to PF-type of procedures (Little Salmon)

Problem: It is a constitutional interest and should mandate more. Yet, recall s.7 and PFJ. Concern: DTC is animated by reconciliation and, arguably, a critique of Canadian state hegemony, a different

purpose than the accountability concerns animating PF that take the Canadian state structure as legitimate. Argument by LSCFN in Little Salmon. “Bright light” theory rejected by Court in paras. 45-47.

Both aim at legitimizing state decision-making but differ on satisfaction with current overall state structures. Question: Is admin law “flexible enough” to provide for a “meaningful” DTC?

Differences: Substantive and SOR DTC has a substantive component: accommodation

Jurisprudence on when it is required and what it entails is sparse, but clear that Crown’s decision on appropriate accommodation/outcome of consultation is seen as substantive 57

Courts’ reluctant to stipulate specific accommodation steps (West Moberly First Nations, 2011, BCCA) Although apparently no deference is due ADM determination regarding whether the DTC is triggered and whether it is

adequate (Little Salmon), deference has been consistently applied to ADM’s decisions after proper DTC conducted, including the accommodation assessment (Haida Nation, cited in Little Salmon, para. 48)

Showcases blurred line between process and substance. Inconsistent case law re SOR to apply to the adequacy of the “process” of consultation. Little Salmon affirms that SOR=C

but other decisions have affirmed and/or applied reasonableness (including Rio Tinto, citing Haida Nation). Critique that too much deference given constitutional nature. But cases after Little Salmon align with Doré regarding reasonableness as appropriate SOR even where constitutional

rights at issue. Familiar Question: What should SOR be? Correctness or Reasonableness?

CAN ADM CONSIDER DUTY TO CONSULT? Apply Paul/Martin/Conway test Note that referential incorporation of s. 44 of ATA will not rebut the presumption:

“Constitutional question” defined narrowly in s. 1 of the ATA, which referentially incorporates definition from s.8 of the Constitutional Question Act

o The DTC issue is not such a s. 8 question, which applies only to challenges to constitutional validity or claims for constitutional remedy require such notice

Legislation can also delegate actual DTC to the ADM (Rio Tinto, 56) but this is a distinct question.o “The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to

consult exists, cannot be inferred from the mere power to consider questions of law.o Consultation itself is not a question of law; it is a distinct and often complex constitutional process and, in

certain circumstances, a right involving facts, law, policy, and compromise. o The tribunal seeking to engage in consultation itself must therefore possess remedial powers necessary to

do what it is asked to do in connection with the consultation. The remedial powers of a tribunal will depend on that tribunal’s enabling statute, and will require discerning the legislative intent: Conway, at para. 82.” (60)

TYPES OF LEGISLATIVE DEICSIONS

1. As passed by legislative assemblies, in accordance with constitutional “manner & form” requirements• No duty of fairness • No duty to consult (but at least proven aboriginal rights constrain legislative decision-making and breaches can

invalidate legislation unless the infringement can be justified, which requires consultation….)

2. Legislative proposals by the executive, before they reach the legislative assembly• No duty of fairness (CAP) • Possibly a duty to consult? (In practice, has happened at least a couple of times )

3. Subordinate legislation (e.g., Orders-in-Council, Bylaws, Regulations)• Duty of fairness? Maybe – depends on characterization of the decision at hand (Homex Reality)• Duty to consult? Yes. Even if “legislative” in character, i.e., a policy decision rather than a judicial one (Tsuu T’ina)

o But will inadequate consultation invalidate subordinate legislation? i.e., Is quashing a legislative decision an appropriate remedy for a breach of the (procedural) duty to consult? Remains undecided….

o Should it be like fundamental justice? (a breach of which can invalidate legislation) or should it be like the common law procedural fairness (a breach of which cannot invalidate legislation)?

4. Legislative in character (i.e., policy/poly-centric/balancing, political…)• Duty of fairness? No (according to Inuit Tapirisat). • Duty to consult? Yes. It applies to strategic planning, policy-making exercises, including recommendations for

subordinate legislation such as regulations or Orders in Council (Tsuu T’ina, Rio Tinto, Haida Nation).o BUT adverse impact on rights/claimed rights likely to be seen as minimal, so low content (Tsuu T’ina, Rio Tinto)

58

LITTLE SALMON

59