STEP 1: General Introduction Principles

Need to consider the various principles informing administrative law... Constitutional supremacy: governmental jurisdiction, Charter Parliamentary sovereignty: democracy results in elected representatives who have the ability to legislate and delegate powers; legislation can supercede CL where there is express legislative intent; flexibility and efficiency are integral components to workings of government Rule of law: Courts have duty to prevent government from exercising powers in an arbitrary manner (Roncarelli); includes CL principles of natural justice Audi alterem partem (requires DM to hear the other side in a dispute); refers to the right to have a hearing and reasons Nemo judex in sua causa (a man cannot be a judge in his own cause); right to have an impartial, unbiased and independent adjudicator International instruments: Canadian government may have entered into certain international agreements which can inform judicial review

STEP 2: Review the Statute

Identify the purpose of statute (whether express or implied) o May be informed by Ministers statements, press releases, history of usage In context of procedural fairness, is this an AT whose procedures approach judicial or do they have more informal procedures? Look for limitations, descriptions of powers and duties (may/shall), statutory rights of appeal, privative clauses Privative clauses vary in wording but will generally include:
1) grant of exclusive jurisdiction over the subject matter 2) declaration of finality with respect to the outcome, and 3) a prohibition on any court proceedings to set the outcome aside Full PC = deference; Partial or equivocal PC = neutral; Absence of PC = neutral Perfect PC: exclusive jurisdiction, can determine own jurisdiction or questions of law Strong PC: may include words like binding, conclusive, unappealable, denial of judicial review (Pushpanathan), may limit JR remedies Partial PC: requires leave from Courts, statute unclear or silent on standard of review

o o o

STEP 3: Identify Relevant Facts/Factors

Do not write this down if not applicable at this point (just consider!!!)

Discretion (may be relevant, particularly at JR stage)

Fact based grounds: bad faith (Homex), dictation/influence (Roncarelli), unlawful delegation of powers, wrongful fettering (pre-judging, mechanical rule-application) (Thamotharem) Interpretive grounds: improper purpose (Shell Canada), unreasonableness (Baker), relevant and irrelevant factors: misinterpret statute or overlook evidence (Baker)

STEP 4: Availability of Judicial Review

Legislative decisions re: delegation which are not reviewable Some legislative decisions may be delegated to DMs and are still not reviewable (Thornes Hardware) Guidelines may not constitute fettering (Thamotharem) Regulations are reviewable but courts tend to stay away because grant of discretion is usually broad (Enbridge)

Where Judicial Review Available Is JR an option? Is the tribunal a public body? o If the body in question is fulfilling a public law function, it is subject to JR. Consider the statute.

Is the applicant a party to the action or do they have some collateral interest in the matter? Are there any other discretionary or statutory bases for refusing a remedy? o The applicant does not come with clean hands Homex: although the DoF was breached, the court refused Homex a rehearing with procedural fairness b/c they were not negotiating in good faith.

Have all other adequate means of recourse for challenging the tribunals actions been exhausted? Harelkin: access to JR was denied b/c internal appeal to the Senate was an option

Is there a privative clause that does not permit Court to review?

Courts can only look as issues of questions of law.

Is there a statutory right of appeal? (Is it available as of right or is leave required?)

Things to Consider: o Domtar: Conflicting interpretations b/n tribunals do not give rise to JR; a lack of unanimity is the price to pay for freedom and independence of AT

STEP 5: Procedural Fairness Judicial Review

In Knight, LHeureux-Dube noted that the duty of fairness is entrenched in the principles governing our legal system. The duty of fairness is based on the CL doctrine of natural justice, and absent legislative direction/override, it requires two things: (1) the right to be heard and (2) the right to an independent and impartial hearing. The concept of DoF is variable and its content must be decided in context (Baker). As such, a Court will ask the threshold question: is this the kind of decision that should attract some kind of procedural right?

In Nicholson, the Court held that a general duty of procedural fairness applies to administrative decisions that affect the rights, interests, or privileges of an individual. PF must yield to contrary legislation (Ocean Port) If the statute is silent on PF, the court will read PF in on the presumption that the legislature intended to protect the CL DoF ( Nicholson) PF does not apply to legislative or questions of a general nature b/c they are subject to political accountability (Tapirisat, Re CAP) UNLESS the policy decision has an immediate and specific target ( Homex) A right to PF can be postponed in the event of an emergency; overarching concerns of safety and security can diminish fairness rights ( Cardinal) PF does not require administrative bodies to act like courts; rather, they must work within a flexible system that is fair ( Baker) DoF doesnt apply in dismissal of public office holders where employment contracts address PF concerns (Dunsmuir)

***** Charter Considerations (NOTE: MAY NOT APPLY IF NO BREACH OF S. 7 OR OTHER CHARTER RIGHT) The Constitution and Canadian Charter of Rights and Freedoms represent the supreme law of Canada. All administrative/judicial decisions must necessarily take this into account. However, in order for the Charter to apply, the power must be one that is exercised by a government DM or involve the specific implementation of a government policy or program (does not apply to all admin DMs, such as those who deal with universities, clubs, societies, etc. As per Singh, the Charter overrules legislative intent and s. 7 applies to anyone physically present in Canada whether or not they are a citizen.

Section 7 S. 7 of Charter stipulates that 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. As such, this section may be employed when considering procedural fairness as long as applicant meets initial threshold of establishing that life, liberty, and security interests are impaired by administrative decision.

Is the right/interest impaired a POFJ contained in s. 7 of the Charter? Onus is on A to establish impairment of s. 7 rights
o Liberty can be engaged both by physical restraint and by state compulsions or prohibitions that affect important and fundamental life choices (Singh) o Liberty is not synonymous with unconstrained freedom.

Security of the person protects both physical and psychological integrity of the individual but does not protect generalized right of dignity and some amount of stress/stigma must be accepted (Blencoe)

Requires notice and an opportunity to respond to the facts upon which government/AT intends to rely (Suresh)
o o o Final decision cannot be based on any material outside the record ( Singh) An oral hearing is required where credibility is an issue ( Singh) Includes duty to give responsive written reasons (Suresh)

Requires disclosure, subject to privilege and the interest of national security (Suresh) Substitutions for full disclosure may be permitted if proved adequate (Charkaoui) PF is reduced in situations of national security or where safety is a concern (Charkaoui, Cardinal) If seeking convention refugee status, A must make out a prima facie case of a risk of torture
o If procedural requirements are met, applicant can be deported (Suresh)

Delay alone will not warrant a stay of proceedings as an abuse of process (Blencoe)
o To be deemed an abuse of process, the undue delay must be clearly unacceptable, have directly caused significant prejudice or been so oppressive as to taint the proceedings Determination of whether a delay is inordinate is not based on length of the delay alone but on contextual factors including the nature of the rights at stake, the complexity of the proceedings, allocation of responsibility for delay, similar cases etc

Where an Admin Decision Infringes Charter Right (focus of review is the admin decision itself) Orthodox Approach from Slaight/Multani (this is the standard approach): 1. Examine if administrative decision infringes a Charter right Admin law relevant to analysis of jurisdiction, determination of facts, application of law

2. Turn to s.1 Charter review for more critical justificatory analysis Charter infringement means administrative tribunal has exceeded its jurisdiction If complainant does NOT establish infringement of Charter right, no s.1 analysis occurs, and court can review via administrative law Note: with s. 7, seems rare that s. 1 argument will succeed

If establishment of infringement, Oakes test:

Pressing and substantial objective Rational connection Minimal impairment Deleterious effects

Two Other Approaches to Consider (not standard)

Mixed Approach (Slaight) 1. First use administrative law principles to review legality of the decision Jurisdiction, fact, application and interpretation Ask if discretion exercised unreasonably If yes, set aside order

2. If discretionary decision survives administrative law analysis, then turn to Charter s.1 analysis Admin Law Approach (Multani) Apply standard of review analysis

*****

Content of PF May include one or more of the following:

Right to notice of a potential decision (Homex) Right to disclosure of particulars (Charkaoui) Right to make written submissions (Nicholson, Baker) Right to a hearing within a reasonable time (Blencoe) Right to an oral hearing (Baker, Singh) where: serious import, reputation, livelihood, personal security Right to written reasons for a decision (Baker, Dunsmuir, Khosa) where: significant consequences to individual, statutory right of appeal, constitutional rights

The right to written reasons should not be underemphasized as reasons constitute the primary form of accountability of the decision made to the applicant, the public, and to the reviewing court (Khosa)

There are 5 non-exhaustive criteria to consider in determining the content in a particular context which were outlined in Baker: 1) The nature of the decision o More Judicial/quasi-judicial (resembling bi-polar adjudication of interests) = more PF
Decisions resolving disputes by finding facts and applying law are likely to demand more PF (Baker)

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Discretionary = less PF (Baker) Polycentric (affects many different interests simultaneously) = less PF (Baker) Legislative or general in nature = no PF ( Inuit Tapirisat)

2) The nature of the statutory scheme o o o Finality/de facto finality of decision = more PF ( Singh) No appeal procedure = more PF (Baker) Investigatory process (preliminary steps) = less PF ( Baker)

3) The importance of the decision the individual affected o o Greater impact = more PF (Cardinal, Baker) Note: DM may have deference wrt selecting appropriate procedures; existence of Charter rights may invalidate this ( Singh)

4) Whether the doctrine of legitimate expectation applies LE = where, based on

conduct of a public official, a party has been led to believe rights would not be affected w/o consultation or if led to expect a specific outcome

o o o o

Long-standing practice = LE of PF Promise = LE of PF (Mount Sinai) Legislative body or capacity = no LE of PF (e.g. Inuit Tapirisat) Commitment to International Conventions may apply ( Baker, Suresh)

5) The DMs choice of procedures o o o Greater discretion = less PF (Baker) Expertise in developing procedures = less PF ( Baker) Institutional constraints (need for efficiency, etc.) = less PF ( Baker)

Having determined general level of PF, court will then decide from a range of possibilities what specific procedures are required. Procedural fairness does not affect outcomes, substance of decisions ( Re CAP, Baker) o If the court decides PF was violated, the matter will be sent back to the tribunal for reconsideration and they will be ordered to afford the proper procedural fairness.

A failure to afford a fair hearing, the very essence of the DoF, always invalidates the decision (Cardinal)

STEP 6: Is there a breach of independence or impartiality?

** done in contemplation of PF Independence, impartiality and bias all centre on the notion of fairness in the administrative decision-making process and necessarily involve a consideration of the principles of natural justice. As such, it is important to evaluate these factors when determining whether a decision has been made fairly.

Impartiality connotes absence of bias, actual or perceived. Independence, the ability to decide matters free from inappropriate interference or influence, is a means of achieving impartiality.

Consideration of Independence ATs do not attract constitutional guarantees of independence as the judiciary does (Ocean Port)
o The judiciarys independence is meant to protect it from interference from the executive

The intention of the legislature dictates the degree of independence required of a particular board/tribunal To ascertain legislatures intention, must examine the statute as a whole in particular, the nature, purpose and practice of the AT in question at pleasure appointments may prove sufficient depending on the enabling statute

Full board meetings are practical means of calling on the cumulative experience of board members and encouraging coherence in decisions that have important policy implications (Consolidated-Bathurst). To ensure independence in FBMs:
o DMs cannot be forced or induced to adopt positions/consensus when they do not agree Discussions must be limited to law or policy and not factual issues Parties must be given reasonable opportunity to respond to any new ground arising from meeting Consultation processes must be voluntary (requested) and not made compulsory by the institution The ultimate decision must be that of the DM alone with no participation from others

o o

At pleasure appointments may be vulnerable to politics; this may affect independence for fear of being dismissed by government ( Keen)

Duty to Act Fairly (Impartiality) The duty to act fairly and in a manner that does not give rise to reasonable apprehension of bias applies to everyone who plays a significant role in the process. The standard for bias varies depending on context. The nature and context of the DMing process drives the content of procedural fairness, including what constitutes impartiality (Baker).

Test for Apprehension of Bias in Individual Cases A real likelihood or probability of bias should be demonstrated, mere suspicion of bias is insufficient. Baker sets out a test for the apprehension of bias in and individual case:

Would reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, conclude on a BOP that the decision was not impartial?

Test for Apprehension of Institutional/Systemic Bias Some procedures may appear to prejudice groups of individuals and as such, there may be systemic bias at play. The test for this is laid out in Geza: Having regard to a number of factors including but not limited to the potential for conflict b/n the interests of decision makers and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?
If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a caseby-case basis NOTE: you can still bring individual charges if no systemic bias found (see Baker test above). o

STEP 7: Review for Substantive Error Standard of Review

At its root, judicial review is about the inherent jurisdiction of courts to oversee and check administrative action in the interest of the rule of law. If the decision itself is in question, the Court will consider not just the procedures followed but also the decision itself. In doing so, the Court must first determine the standard of review by balancing the principle of Parliamentary sovereignty with the rule of law. In the past, courts tended to view administrative bodies as inferior. However, since CUPE, there has been a move by the Court towards deference as respect. Judicial review exists to ensure that administrative decisions are not carried out in a capricious or arbitrary manner, while according legislative intent certain respect. Deference is not owed only where a privative clause exists, but where administrative body exercises special function/expertise. Questions of fact, policy, and interpretation of home statute/related enactments may also inform deference.

Standards of Review Post-Dunsmuir Since Dunsmuir, there are now two standards of review: correctness and reasonableness.

Correctness (least deferent standard) was it at correct decision (same as what court would have reached)?

No deference to the reasoning process; Court will undertake de novo analysis and substitute Courts view of the correct answer (Dunsmuir) Usually only applies to questions of law, such as constitutional issues, common/civil law, jurisdictional issues (Pushpanathan, Dunsmuir)

Reasonableness (deferent standard) falls within a band of reasonable decisions even if court might not have reached the same Based on principles of justification, transparency and intelligibility ( Dunsmuir) In admin decision-making, there may be range of possible, defensible outcomes that might be recognized by the Courts and the Court will pay attention to reasoning process of DM (Dunsmuir) Questions of fact and mixed fact/law, policy, discretion will attract a reasonableness standard Respect will be accorded to DMs expertise (Dunsmuir) Court should not engage in de novo analysis (Ryan)

Patent Unreasonableness (most deferent) if superficially decision is not unreasonable, court should make no further inquiry ** NOTE: DOES NOT EXIST EXCEPT WHERE BC ATA APPLIES Court will not intervene unless it is immediately and obviously apparent that DMs reasoning cannot be supported by home statute (Southam) Recognizes the necessity of administrative discretion, that such discretion is not inherently unlawful, and that admin DMs may have expertise or that their statute may be interpreted in different ways (National Corngrowers)

If Dealing with a BC TRIBUNAL, may need to consider BC ATA In BC, the provincial govt has expressly provided a legislative solution to the problem of 3 standards of review at common law in ss. 58 and 59 of the BC ATA. In these sections, they have codified the various applicable standards of review that are different than those that exist in other jurisdictions.

The BC ATA sets out clearly which tribunals have constitutional jurisdiction:

Labour Relations Board and Securities Commission have full constitutional jurisdiction including Charter and division of powers Employment Standards Tribunal, Farm Industry Review Board, Human Rights Tribunal have limited jurisdiction over division of powers issues which are essential to determining their jurisdiction Most tribunals clearly do not have jurisdiction over constitutional questions

Section 58 If enabling statute has privative clause

(1) Signals expertise and entails exclusive jurisdiction (2)(a) PU for findings of fact, law or exercise of discretion and all matters within exclusive jurisdiction (2)(b) Fairness for common law natural justice and procedural fairness matters (2)(c)All other matters involve correctness (3)(a)-(d) For purposes of considering discretionary decision, PU requires: o o o o Arbitrary or in bad faith Improper purpose Based entirely or predominantly on irrelevant factors Fails to take statutory requirements into account

Section 59 If enabling statute lacks privative clause

(1) Correctness for all questions including questions of law (2) Facts cannot be set aside unless have no evidence or, in light of evidence, are unreasonable (3) Discretionary decisions set aside only if PU (with same grounds as in s.58 (4)) (5)Natural justice/procedural fairness on standard of fairness

[Check BC ATA Chart] for issues related to: public hearings, discretion to receive evidence in confidence, discretion to refer questions of law to court, lack of jurisdiction over constitutional/Charter issues, issues related to Human Rights Code

Standard of Review Analysis (Dunsmuir/Khosa) 1) Past jurisprudence How was this particular category of question addressed in past?

2) Assuming no past jurisprudence on this issue, need to contextually analyze factors under Standard of Review Analysis from Dunsmuir. It is not a check-list; you need an overall evaluation as per Binnies judgment in Khosa. Privative Clause o o Presumes reasonableness Statutory rights of appeal tend to accord no/less deference

Purpose of tribunal from interpretation of enabling legislation o Purpose may be indicated by specialized nature of legislative structure and the need for expertise (Pushpanathan) Purpose of the act may be better served by deference to the DMs decision More deference is warranted if the statute can be described as:
1) polycentric (engages a balancing of multiple interests, constituencies and factors), 2) containing a significant policy element (legislative), and 3) articulating the legal standards in vague or open-textured language (general in nature)

Nature of the question

o No deference: Charter or Constitution Questions of Jurisdiction Pure questions of law (can include tribunals weight of certain facts Southam)

Less Deference: Adversarial tribunals (disputes that more closely resemble bipolar model of opposition) Questions that do not require expertise (e.g. labour boards, human rights tribunals and commissions)

Deference: Question of law wrt home statute (within tribunals expertise, within jurisdiction) Questions of fact (the more particular a decision = question of fact Southam) How the tribunal weighs the facts is a matter of discretion (Southam) Questions of mixed fact and law

Expertise of the tribunal

o More expertise leads to deference

Considerations for Applications of Reasonableness Standard: Guidelines and other soft law are an important factor for determining what is reasonable; note: no compliance with regulations is actually required but ministries make them to promote consistency in decisionmaking and this can inform a courts decision ( Thamotharem)

STEP 8: Remedies
Remedies for judicial review of administrative decisions are considerably more limited than those available to other areas of law. They are descended from the historical prerogative writs and are only available to actions of public bodies (McDonald). The grant of these remedies is entirely discretionary in nature (Harelkin). It is important to note that the Courts cannot change substantive outcomes. They can, however, send the matter back to the original DM for reevaluation, along with [INSERT REMEDY FROM BELOW]

Four Remedies on Judicial Review: 1) Certiorari The most commonly used prerogative remedy

A special proceeding by which the superior court requires some inferior tribunal, board, or judicial officer to provide it with the records of its proceedings, for review for excess of jurisdiction A successful certiorari application results in the quashing (invalidating) of a tribunals order or decision A special proceeding issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising a power (a kind of common-law injunction) A writ issued by a superior court to compel a lower court/government agency to perform a duty it is mandated to perform under a statute In practice, often combined with an application for certiorari Four conditions for obtaining mandamus (407 ETR): o A shows they have a clear right to ask of performance o The duty is due and incumbent on the official at the time the relief is sought The duty must be purely ministerial in nature, not discretionary There must be a demand and a refusal to perform the act

2) Prohibition

3) Mandamus (we command)

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4) Declaration
A judgment of a court that determines the legal position of the parties, or the law that applies to them

Court may deny the above remedies for various reasons, including: delay and futility (Friends of Oldman River).

SIDE NOTE: Administrative Remedies Depending on their empowering statutes, admin bodies may grant remedies that are broader in scope from traditional CL remedies. They may devise novel remedies that can be highly interventionist and are often systemically oriented, such as specialized training programs (McKinnon). Unlike courts, administrative bodies can also remained seized of matters until there has been actual compliance (McKinnon).