Administrative Law Cond I. Subject Matter (look at word doc notes) PROCEDURAL FAIRNESS II.

SOURCES OF PROCEDURAL OBLIGATIONS A. S & F - CH. 5 - From natural justice to fairness: thresholds content, and the role of judicial review 1. From natural justice to fairness: a) Judicial or quasi-judicial decisions were required to be made in accordance with rules of natural justice, which requires decision - maker to hear the other side of the dispute before deciding and which precludes a man from being a judge in his own cause. b) Administrative decisions could be made without any procedural impediments (not judicial or quasi judicial). To obtain protection, would have to convince court that decision can be judicial or quasi judicial. c) Nicholson v. Haldimand-Norfold Police Commissioners: held that is a general duty of procedural fairness that applies to administrative decisions - cannot penalize cops without hearing, right of appeal, but can dispense services within 18 months of becoming a constable. d) Duty of fairness replaced natural justice, as organizing principle in admin law, so no reason to differentiate between the two. Duty of fairness concerned with ensuring public authorities act fairly in the course of making decisions, NOT with the fairness of the actual decisions they make. Has nothing to do with outcome of case, nor requires decisions of authorities be considered fair. (made with input from those affected by decisions, well-informed, promote rule of law values). Requires people to be treated w/ respect. (1) Requirements: (1) The right to be heard, (2) The right to an independent and impartial hearing (2) Court asks: (1) has the threshold for the application of the duty been met? (2) what does the duty of fairness require in the relevant circumstances. (if in (3) correct decision, quash and remit according to appropriate procedures). (4) If nothing written in statute, assume by common law principles that procedural protection applies (complies with Charter). (5) What the duty requires based on circumstances: whatever the courts think ought to be required (will not always require oral hearing). 2. The Threshold Test: When is fairness required? a) Applies to the decisions of public authorities when they affect the rights, privileges or interests of an individual. (executive actors, tribunals, officials acting by statute). b) Charter s. 7: life, liberty, and security of a person. This entails procedural fairness protection, but not duty of fairness per se. Higher threshold than demonstrating right, privilege, interest. (ie. taxi license denial not protected by Charter). Infringement of s. 7 justified in extraordinary circumstances. 3. Limitations on the application of the duty of fairness - where it doesnt apply a) Applies only in contexts where decisions are made, not advisory processes or investigations. b) Does not apply to legislative decisions b/c no impact on rights, privileges, interests. They affect whole, larger population generally. The separation of power between legislative and courts demands it. ( Authorson v. Canada: parliament passed legislation limiting amount of money owed to disabled war veterans, without notice. Argument that infringed right not to be deprived of property under Bill of Rights rejected. (1) Cabinet and ministerial decisions are not subject to legislation exemption per sue but because their decisions are legislative in nature, will be exempted from duty too. (a) Attorney general of Canada v. Inuit Tapirisat: Cabinet can over turn decision by Canadian Radio television and telecommunications commission on its own motion - actions are legislative in nature, so exempt from duty. (2) Subordinate legislation: courts have not imposed procedural requirements here, but there exceptions ( Homex Reality v. Wyoming - passage of municipal bylaw was subject to duty of fairness) (3) Policy decisions: are also exempt because are similar to legislative decisions. (administrative bodies decisions because assume legislative roles, ministerial decision). Imperial Oil Ltd. v. Quebec: environmetal ministers act of exercising discretionary power to require company to undertake decontamination measures, is exempt/not subject to fairness obligations.

c) Does not apply to public office holders employed under contracts. Only ordinary private law contractual remedies will apply. After Dunsmuir case, it will be assumed that contract addresses procedural fairness issues. If it doesnt, normal common or civil law principles will govern. In either event, protection from wrongful dismissal will be governed by private law. Two exceptions: (1) Employees not protected by employment contracts, or subject to employment at pleasure, will still be protected by the duty of fairness. (2) Duty of fairness may arise by necessary implications in some statutory contexts. d) Duty may be suspended or abridged in event of emergency. Normally, duty establishes duties that must be observed before making decision. Exceptions apply when duty of fairness is suspended until after the required decision is made b/c risking harm. (1) Cardinal v. Director of Kent Institution: no requirement of prior notice and opportunity to be heard before decision (inmates involved in hostage taking were transferred to another institution, placed in isolation & segregation). Prison administration is special in nature , emergencies should not be unduly burdened. Instead, duty of fairness requires prison director to inform of decision, provide reasons and afford opportunity to contest after recommendation to end segregation. (minimum amount of fairness) 4. The content of the duty of fairness - fairness is a minimum that must be met; in determining whether its been met, courts ask whether procedural protection provided was adequate, not ideal. Common law governs scope and content of the duty of fairness (unless criminal proceeding, human rights adjudication, or licensing regulation) a) Baker v. Canada (minister of citizenship and immigration): Visitor from Jamaica, order deportation after 11 years, has Canadian born children. Argued that minister failed to give duty of fairness: oral interview, notice to children and father, submissions from them, and attendance. Also argued, decision was result of reasonable apprehension of bias. Held- entitled to procedural fairness, but content of duty was minimal. Hearing not required, submission of written docs from her was enough, and was given reasons for ministers denial. (1) Purpose of duty of fairness: ensure administrative decisions are made using fair and open procedure, appropriate to decision being made and its statutory, institutional, and social context, with an opportunity for those affected by decision to put forward their views and evidence fully, considered by decision maker. (2) Criteria in determining content of duty of fairness: (a) The nature of the decision being made and the process followed in making it: judicial or quasi judicial decisions will demand extensive procedural protection vs. administrative decisions. (b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: play close attention to the legislation that authorizes particular decision to be made. (c) The importance of the decision to the individual or individuals affected: duty increases in proportion to the importance of the particular decision. (high standards when decision affects ones employment, career, livelihood). (d) The legitimate expectations of the person challenging the decision: will be afforded based on representations of public authority, promises, undertakings or past practice, or current policy of decision maker. (Canada v. Mavi: If official represents within scope of duty, about admin process, this rep will give rise to legitimate expectations, govt will be held to its word if reps are procedural and do not conflict with decision makers statutory duty.) i) Can also expect certain outcome, based on policies suggesting outcome or undertaking that particular outcome will be made (getting license). Person entitled to protection: notice of intention not to grant license, right to make submissions before decision to deny license. (e) The choices of procedure made by the agency itself: in analyzing what duty of fairness requires must take into account procedures made by agency, if statute leaves decision maker choice or agency has expertise in determining what procedures to use. Must give important weight to choice of agency. b)Components of duty of fairness (1) Notice: must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition. (Consider questions: who is proposing to make a decision, what is the nature of the decision to be made, when will it be made, where will it be made, why is it being made, how is it going to be made?) (2) Disclosure: the duty of procedural fairness generally requires that the decision maker discloses the information he relied upon. The requirement is that the individual must know the case he has to meet. Requirement satisfied if party has sufficient information to make informed submissions in regard to matter. The question is not whether to disclose, but how much to disclose.

(3) Oral Hearings: granting it depends on the circumstances. Singh v. Minister of Employment & Immigration: granted when person claiming refugee status, because depends on whether claimant has well founded fear of persecution in homeland, cannot be sorted out on paper, need opportunity to provide evidence, tell story, authorities can determining factually disputed evidence. (4) Right to counsel: does not exist in administrative proceedings. Although protected by s. 10 (b) Charter, its only in criminal proceedings, not required by rule of law. Can also be limited in some cases, due to additional cost, delay. However, where deprivation of life, liberty, or security of person is at stake, principles of fundamental justice may require provision of counsel in administrative cases. (5) Right to call evidence and cross examine witnesses: this is normally part of the right to an oral hearing. Not absolute right, administrators can control procedures and limit this right. Principle is that parties must be afforded a reasonable opportunity to present their case. (6) Timeliness and delay: no duty for administrators to hear or make decision in timely manner vs. Charter 11(b) that applies to criminal offenses. (usually take longer than some criminal cases b/c schedules of counsels, tribunal members (usually part time). (a) Blencoe v. British Columba: minister sought an order staying human rights complaint, took over 30 months career ended, depressed, expelled. Sometimes delay can rise to level of deprivation of liberty, security of person under s. 7 Charter, and could impair fairness of hearing that could result in abuse of process (this occurred, but no Charter violation here). i) Minority of courts 3 considerations: (1) Time taken compared to the inherent time requirements of the matter before admin body, which would encompass legal complexities, factual complexities (gather info data), reasonable periods of time for procedural safe guards to protect parties or public. (2) Causes of delay beyond inherent time requirements of matter - whether affected person contributed to or waived parts of the delay, whether admin body used resources efficiently. (3) The impact of the delay - evidentiary sense, and harm to lives of real people impacted. (7) The duty to give reasons: given in certain circumstances (not all), after decision in Baker: reasons are required if decision has important significance for an individual, b/c public actors demonstrate respect for those affected by their decisions by justifying actions they make, AND if a statutory right of appeal process exists to facilitate the workings of that process. Re (a) Reasons will vary in length, formality, etc, b/c no quality was spelled out in case. This could result in ineffective or inadequate reasons. (b) Failure to provide reasons will constitute breach of duty o fairness. After Newfoundland Nurses Union: Courts not concerned with adequacy or sufficiency of reasons, but instead, do the reasons allow reviewing court to understand why tribunal made its decision and permit it to determining whether the conclusion is within the range of acceptable outcomes. 5. Judicial review of the duty of fairness a) Cardinal: denial of right to fair hearing will always render decision invalid. Its an independent, unqualified right which finds its essential justification in procedural justice which any person is entitled to have. Cannot deny it on basis of what the result might have been in hearing. b) Mobil Oil Canada v. Canada-Newfoundland Offshore : distinction might be made based on nature of decision. Justified in regard to breach of natural justice where demerits of claim are hopeless in any case. (rare exception). c) Courts review: courts review substantive grounds based on correctness or reasonableness standard. Not the same with dusty of fairness. Historically, compliance with duty has been regarded as jurisdictional question and, must be answered correctly. If not, jdx lost, decision quashed, decision maker required to make fresh decision according to correct procedure. d) Role is to supervise decision making process, not make sure proper decision made. (Judicial review after decision made, after knowing duty of fairness breached, decision then quashed, new decision making based on correct procedures, could still result in same outcome though). e) Consequences: quashing could be inconvenient to those involved and public b/c proceedings take months, years, and are expensive, and would not have to be repeated. B. CH. 6 - Advocacy before administrative tribunals 1. Sources of administrative law a) Governing statutes and regulations: examine these to characterize the tribunal - is it adjudicative, regulatory, licensing, reviewing govt decisions? Cases are argued in context of a particular statute. Familiarize with sections that are relevant, read and re

read all statutes. Burden is on advocate to establish what statute requires. Think about purpose of statute, and provide a theme on which case will be argued. b) Tribunal rules, policies, and guidelines: govern circumstances where tribunal will grant adjournment, service of documents, motions, prerequisites for reconsideration of decisions. Advocate should familiarize with these, or else could cause delay/expense, understand policy behind tribunal and role intended to fulfill. c) Statutory procedural codes: these establish procedural requirements for tribunals (procedural requirements for adjudicative or administrative tribunals, empowering them to make their own rules, recognizing differences amongst tribunals). Specific procedural provisions are in tribunals enabling statute. (tribunal can be established under one statute, but proceedings governed under another). Procedural codes represent minimum rules, common law may operate to require greater procedural protections. d) Common-law principles of procedural fairness: protections available depend on context. Must exam type of interest at stake, regulatory context, impact of decision. (1) Baker: admin decision making is now on a spectrum between quasi-judicial and legislative decision making, with procedural entitlements varying according to placement on the spectrum. Onces individuals rights, privileges, interests, are at stake, duty of fairness applies, and question becomes one of degree. 5 Factors balance need to give effect to legislative intent in crafting administrative processes: (a) Accessibility (b) Efficiency (c) Informality (d) Cost (e) The need to ensure that those processes protect individual interests (2) Who can be a party: look at enabling statute, statutory procedural codes, common law. If statute express who can be a party, who is interested, affected, they may be parties. (3) Common law procedural fairness provides that person seeking party status demonstrate the subject matter of the inquiry may seriously affect him. If enabling statute disavows any right o hearing, CL does not over ride express statutory language. e) Charter of Rights and Freedoms and Constitutional law: determine if tribunal has jdx to hear charter or constitutional issues, or if not, must be brought into court. If both have jdx, tribunal must exercise its jdx, however, counsel must make sure that remedy sought is within tribunals jdx. 2. Pre-hearing issues a) Notice: fundamental question is, whether notice is sufficient. Must comply with tribunals enabling statute, procedural code (if any), common law requirement - provide sufficient detail to enable party to know what is at stake in the hearing. Proper parties must be identified and properly delivered. Failure of proper notice = pre hearing motion, challenge to jdx, judicial review or appeal. If client b) Disclosure: obligation of one party to provide particulars or produce documents, witness statements, mutual exchange of both, oral or written examination of a party prior to hearing. Could be provided for in statutes, or procedural code, or could simply say tribunal can create its own disclosure rules. Common law - disclosure varies depending on the nature of the tribunal and nature of the interest affected. (* look below) (1) R.v.Stinchcombe: disclosure of all evidence that may assist accused, even if prosecution did did not plan to adduce it, in cases of licensing or regulatory tribunals. This is b/c there amy be loss of livelihood, damage to reputaation. (2) Insufficient disclosure: bring pre-hearing motion. If client genuinely prejudiced, then motion is necessary and appropriate, and remedy is deferral of decision or adjourment of hearing pending proper disclosure (*this also applies to notice) c) Oral or written hearing: look at statutory, procedural rules, common law Baker factors. Consider if its necessary, or desirable in the circumstances. At common law, depends on seriousness of the interest at stake and whether there is a significant credibility issue. Balance fairness and efficiency, examine competing interests, strengths weaknesses or witnesses, public interest, expense and time. Tribunal can impose conditions when adding party, restricting its evidence and argument to other partys interest. d) Agreed statement of facts: parties must cooperate and come to this together. Will expediate process, think about issues that are contentious and deserve to be argued, good case planning. Cannot agree unless done factual and legal examination of case. If not agreed to, draft will be advocates own chronology of events. e) Witnesses: Issues - 1) which witness to call, 2) how to secure their attendance. Must determine what needs to be proved, before calling a witness. Expert witness - find best one, instruct properly, ethically. Tribunal can also summon witness. Often counsel is expected to obtain and execute summons from hearing officer in advance of hearing, and serve summons together with fees and allowances. f) General Conduct: observe tribunal before hand before appearing so you know their customs: slips required, whether to rise, opening statements allowed or not, where to sit.

3. Advocacy at the tribunal hearing a) Ethical advocacy: be civil, professional, have duties to the state/tribunal/court, duties to client, duty to other lawyers. (promote interests of state, serve cause of justice, maintain authority and dignity of court, be faithful to clients, candid and courteous in relations with other lawyers and demonstrate personal integrity - BC) b) Misleading the tribunal on the facts or the law: this is improper and bad = bad reputation. Duties to tribunal prevail over duties to client. c) Public statements about proceedings: before doing this, be mindful of ethical issues, and commenting improperly, do not infringe obligations to client, profession, courts, administration of justice. (1) Sub judice rule - it will be contempt of court, if published comments influence or prejudice fair hearing. Must satisfy beyond reasonable doubt that words were calculated to interfere with course of justice. Mens rea is knowingly and intentionally publishing material, irrespective of absence of intention or bad faith with respect to question of criminal contempt itself. Whether words published were calculated...will be question of fact. d) An advocates duty to opposing counsel: courteous, good faith, civil, respectful. e) Dealing with unrepresented parties: primary duty is to your own client, cannot assist unrepresented party in line of crossexamination. Should enhance access to such parties: write letters identifying issues, rules, consequences, before filing motions, or for disclosures. (advise of getting lawyer, and not representing him) f) Preliminary motion at the hearing: challenges to jdx of the tribunal, challenges based on bias or tribunal independence. (usually like to deal with disclosure motions before hearing to avoid adjournment). (1) Two aspects of bias:1) Impartiality: state of mind of the decision maker, 2) Independence: relationship of the decisionmaker to others. (2) Both may operate at either an individual or institutional level. (3) Test: whether there is a reasonable apprehension of bias. g) Opening statements: 1) set out the theory of the case, identify issues from clients perspective, offer simply solution, seize the moral ground of the case, 2) provide a road map to the tribunal as to how the case will unfold (identify witnesses, and their purposes). Briefer and less-detailed than at trial, unless tribunal has court like procedures. h) Evidence: tribunals are not bound to strict rules of evidence. For each piece, ask: 1) what facts will be stablished with this evidence, 2)how are the facts relevant to the issues in the hearing. Also look for exclusionary rules (privileges). If dealing with livelihood, criminal conduct (serious cases), some tribunals will not admit hearsay (some allow it in child welfare proceedings). Know the tribunal - if there are admissibility rules, notice requirements for experts. i) Relevance: relevant evidence is that which has any tendency to make the existence of a fact that is on consequence to the determination of the matter more probable or less probable than it would be without the evidence. Can only hear relevant evidence thats directly related to natural justice. j) Weight: how much weight to give to evidence. Argue issues of weight rom natural justice, procedural fairness, quality of administrative decision making, relevance given the purpose of the statute, and what is at stake for individual. The more reliable evidence is, the more weight given. k) Admissibility: Look at statute and procedural codes. Statute may contain provisions of how to deal with evidence. Statement may describe mandate of tribunal and scheme it administers in terms that suggest which considerations, priorities, should weigh heavily on the tribunal in making decisions. l) Standard of proof: balance of probabilities - evidence must be sufficiently clear, convincing and congent. m) Judicial notice: expert tribunals may take notice of generally recognized facts (scientific or technical) within their specialized knowledge. n) Examination-in-chief: (direct examination) assist witness in telling story, evidence comes out persuasively. Structure questions, bad to do leading questions. Have persuasive theme, and have head lines (next well talk about your health). Open-ended questions, elicit short bits of information in each question, prepare and introduce exhibits. Some tribunals may start with this line of questioning. o) Cross-examination: purpose is to test credibility of witness. Refusal of cross does not always amount to denial of fairness at common law. If credibility not in issue, no cross needed. Principles: control witness, one fact per question, impeach based on prior inconsistent statement, have a reason behind every area of questioning. p) Tribunal precedents: some established tribunals have precedents, but may occasionally require re-examine. (Acknowledge existence of and policy reasons for its authority and argue modification of jurisprudence is necessary to give continuing effect to policies identified by the tribunal. Will then consult colleagues who not on the panel for advice, input, expertise). q) Closing argument: persuade tribunal that client should win. summarize evidence persuasively, argue evidence challenging opposition, persuade to make findings of fact in clients favor, argue application of law to facts, persuade that laws and fact

establish clients case. (Argue: conclusion of inferences, circumstantial evidence, analogies, credibility, motive, weight of evidence, application of law, witness credibility, importance of documents, preference of exert) r) Reasons, reconsiderations, and reviews: enabling statute may require decision maker to provide reasons for decision. If not, common law may require reasons to be provided, even if no enabling legislation or procedure code does. Tribunals can reconsider or review decisions, under enabling statute or procedural code - not for clients remedy but to correct or explain deficiency in original decision that was ground for appeal or judicial review. s) General rule for everything: KNOW YOUR TRIBUNAL. C. Ch. 7 - Access to Administrative Justice and Other Worries 1. Access to administrative justice: the tribunal a) Standing: to access the tribunal, must be found in tribunals governing statute (or other statute) b/c have no inherent jdx. Fairness issues arise with standing. Standing given or its scope broaded to make the process fair. Issues with standing in the following: (1) Parties (a) Regulatory tribunals (energy board or competition tribunal): boards work out representative compromises whereby ratepayers association or citizens group is granted standing to represent the interests of those indirectly affected by board decisions (interveners). Could raise issues of accountability b/c tribunal rarely inquires into representative character of public interest groups. (b) Labor tribunals or municipal planning board (rights of employees have impact on a wider group of employees): standing issues involve third-party employees who are affected by another employees grievance. Ie. an incumbent employee potentially would be displaced following a successful grievance, should he be given the opportunity to participate in the grievance to protect his rights - no, except in limited circumstances (2) Parties standing to challenge administrative decision in court (a) Test for standing: whether applicant is a person aggrieved by the administrative decision. Person aggrieved is one who will suffer some peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public. (b) Limits on standing promote efficiency of administrative action by keeping the administration free from artificial or academic challenges to administrative action. Also respect third party rights. Policy of the court is not to decide issues in the absence of parties whose rights are most directly affected by the courts decision. (c) If those affected want to live with it, court will not allow other bodies to bring application for review. If those affected want to challenge, they can do so without interference. If party has no financial resources, test application or NGO can launch judicial review on their behalf. (3) Finlay v. Canada: Court granted public-interest standing to claimant challenging decision by fed govt not to penalize Manitoba for garnishing benefits of social welfare recipient in breach of Canada Assistance provisions. Held that this form of standing would be available to challenge admin action and not legislation. (a) Test: i) Is the matter serious and justicable ii) Is the party seeking standing genuinely interested in the matter iii) Is there any other reasonable and effective way for the matter to be adjudicated (b) Reasoning: as a recipient, was genuinely interested. No reasonable alternative by which challenge could reach the court (neither fed govt nor provinces were in interest to compel penalty from fed). i) Purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. Public interest standing is available in context of challenges that arise out of administrative tribunals. (scope may be limited to legislative provisions and public acts of a legislative character, which would exclude most tribunal decision making) (4) Childrens Lawyer for Ontario v. Goodis: tribunal sought standing cos its decision was judicially reviewed. Ontario Ct App considered case where info and privacy commissioner responded to judicial review application by the Office of Childrens Lawyer b/c successful requestor chose not to participate in the judicial review process. (a) Held: The judicial review procedures act entitles administrative tribunal to be party, but leaves to the courts discretion the scope of its standing. Context is central to exercise of this discretion, and settings where a party is unable or unwilling to participate in a judicial review, as in this case, emphasize the need for tribunal setting to ensure that the court has the legal and factual basis on which to make an impartial and reasoned decision. b) Hearings (oral [in person or through technology] or written: their proceedings and discretion available is set out in tribunals empowering statute. (1) Some may have ramps to hearing room, wheelchair accessible bathrooms, material for visually impaired, sign language interpretation for hearing impaired, digital materials and proceedings.

(2) Enhanced training and education for its members staff, accessibility to officers, plans for those who are mentally or cognitive disabilities. Some can bring support persons, others allow written, electronic, and in person hearings to accommodate different kinds of special needs. (3) Videoconferences to give access to parties in remote areas where physical presence in hearing room would be expensive (long distance travel) but disadvantage includes fairness of proceeding. 2. Access to administrative justice: information & knowledge (or other knowledge necessary to obtain services): the way tribunals communicate info and knowledge varies greatly and is rarely set out in the empowering statute. a) Guidelines: developed by many tribunals to ensure consistency and structure discretion. They set out standards. (1) Thamothearem v. Canada: IRB guideline 7 changes order of questioning by having the Refuge Protection Division leading inquiry in the hearing room, controls scope and conduct of hearing. Purpose was to allow Refugee protection Division make best use of its expertise by focusing on issues it finds determinative. (a) Challenged as breach of procedural fairness on grounds that it fettered the discretion of board members to decide other of questioning appropriate to particular claim. Raised in context by tamil student who would be prosecuted if sent back to Sri Lanka. (b) Federal court held: 7 does not violate boards duty of fairness, but is an unlawful fetter on the exercise of discretion b/c board members often operate as if they are bound by it. Denial of students refugee status was quashed (c) Fed Ct App affirmed finding about 7 and duty of fairness, but reversed decision dealing with administration discretion b/c 7 expressly directs members to consider facts of the case before them to determine whether there are circumstances warranting a deviation from the standard order of questioning. (d) Principles of admin law limit the effectiveness of that reliance (public guidelines) by requiring tribunals not treat its own guidelines as binding. (2) Tribunals have discretion with respect to access, limited only by the requirement that rules of practice be consistent with tribunals enabling statute, and where applicable, general procedural requirements. Rules of practice determine if tribunal is easy to access (set out time limits for filing materials, extent of materials and disclosures, whether hearings in writing, in person, or electronic). b) Simplification: using simple and use friendly forms, assistance to individuals to complete forms, and understand basic process requirements of tribunal. c) Language: services provided and adjudication in language spoken by those seeking the tribunal. (1) R.v.Tran: Could adopted s.14 Charter approach, that party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter. Closely linked to common law right to a fair hearing. The right to be hard, implies a right to understand the case to be met, which may be impossible unless interpretation and translation services are available. (a) not every error of interpretation/translation will be a violation of the Charter. Error must be one that goes to the vital interests of the accused. (this is not admin context) (2) Filgueira v. Garfield Container Transport Inc: Canadian human rights tribunal considered its own obligation to provide an interpreter to a claimant alleging discrimination in the work place. Tribunal notes that claimant had a bilingual agent assisting with the case. Although this mitigated the complainants needs and would have an impact on ruling, tribunal nonetheless ordered that fairness required that the complainant be provided with an interpreter. (a) Judicial review of this case dismissed this decision. Held that its within the discretion of the tribunal to determine whether objective can be fairly achieved in the absence of providing, in whole or during part of process, translation services, at tax payers expense, to one of the parties. d) Prior decisions: absent circumstances justifying confidentiality, all tribunal proceedings and the documents used in those proceedings, should be open to the public. (parties can learn about previous decisions). Some publish them in a form, some have anonymous versions, some charge fee (financial burden imposed and barrier). (1) Tribunals are not bound by their previous decisions. But in practice, they aim for consistency and will treat previous decisions as strongly influential over similar disputes. For this reason, making prior decisions available can be seen as an element of fairness, and as requirement that parties should know the case to meet. e) Administrative justice includes access to sufficient legal and institutional knowledge. 3. Access to resources needed to navigate the tribunal system : main barriers to accessing resources -a) Legal representation: many legal aid statutes fund legal representation before administrative tribunals. Can also get probono help by students, who provide limited legal services to unrepresented parties appearing before tribunals. Also use paralegals, but using these two can cause problems in protecting clients b/c paralegals are ungoverned. b) Fees and costs:

(1) Fees: Regulatory tribunals are sometimes self-funded whereby the tribunal levies an assessment on regulated individuals or organizations and funds its adjudicative operations from these levies. (some are funded partially by fed or provincial govts). Adjudicative tribunals are mostly free to parties, but are starting to charge fees associated with filing applications. Look at enabling statutes for fees. (a) Home Hardware Stores ltd: court recognized that constitutional principle of access to justice required that small claims courts be waived in the case of an individual who otherwise would not be able to bring a case to court. (not admin law) (b) Pearson v. Canada: Fed court held that provision of Federal Courts Act, allows court to disregard its rule, and exempt parties from having to pay filing fees. (civil rights, not admin law). (c) Access to justice requires waiver of fees, or no fees for poor applicants. (d) Christie v. British Columbia: tax on legal services (pickets on courthouse steps) prevents people from accessing courts and tribunals, thus, violates right to access. Trial judge held: access to justice is fundamental right, taxation on this right denies service to low income persons, violates s. 7 Charter. Appeal court affirmed and added b/c access to justice is held by all, tax should not be levied on any legal services that determine rights, whether before court or tribunal, should be struck down for all citizens. Supreme court reversed and held not every limit on access is unconstitutional. Constitutional does not mandate a general right to legal representation. Right to counsel is limited to where life, liberty, and security of person is affected, (ss. 7 and 10(b) Charter). (2) Costs: refers to paying costs of the other party, or costs of the tribunal. Tribunal develop their own costs regimes. BC Vegetable Greenhouse I, LP v. BC Vegetable Marketing Commission: application to the BC Farm Industry Review Board by the BC Vegetable Marketing Commission and BC Hot House Foods, for an order that BC Vegetable Greenhouse pay the costs incurred during BC Vegetables appeal of a commission order that required it to remit to the commission of $376,642 in outstanding levies. (a) Some of its grounds for appeal were unsuccessful, abandoned during proceeding and tribunal found its conduct to have rendered the proceeding most costly than it should have been. Panel ordered Vegetable to pay the costs of the other parties. (b) Decision suggests that if costs are available, unless circumscribed by enabling statute, applicable principles are similar to civil courts, with exception of the potential for liability on the part of losing parties to pay costs directly to the tribunal. c) Budget and staffing: issue is whether court can compel govt against its will to fund or organize a tribunal differently. Govt may not be under a legal obligation to create tribunals, once it has, it may be under a legal obligation to provide adequate funding to ensure fairness, the rule of law, and access to justice before these tribunals. (1) Khan v. University of Ottawa: Ont Ct App held that oral hearing was required in context of university student failing a class. Where a decision affects significant interests of individual turns on credibility, fairness requires individual to have an opportunity to put forward his case before decision-maker. (2) Singh v. Canada: duty of fairness was held to require that fed govt provide oral hearings for refugee claimants. This decision put significant expenditures for govt and the reorganization of the entire refugee determination process. (3) Fairness obligations impose resource obligations on govt. (4) Staff: low staff, independence compromised b/c certain number of cases are cleared per week. Decision makers do not get to interview, review, research properly b/c limited. Question of how decision makers are selected - merit principle, political appointment, hybrid? d)Conclusion: (1) Administrative tribunals established to: (a) Resolve disputes or reach decisions on basis of specialized expertise. (b) Resolve disputes or reach decisions in an informal and expeditious fashion, than its possible in the courts, thereby reducing costs to the parties. (c) To resolve disputes in a fashion at arms length from the govt while advancing the policy mandates set out in the applicable legislation. (2) Accessibility, whether in form of better or more facilities, information for parties, representation, or resources. Accessibility depends on how tribunal accommodates under unequal power and resource between parties, balance between fairness and efficiency (more facilities, or fewer and video conferences) (3) Duty of fairness does not include concern for simplicity of forms, transparency of guidelines, or adequacy of tribunals database of prior decisions. Logic of fairness is that it must be viewed from perspective of the person affected by the decision. (4) Access to justice - being able to understand, navigate, participate in the tribunals decision making; tribunal will deliver administrative justice of high quality. Extends to standing, guidelines, fees, representation; whether decisions are well reasoned

and delivered in time fashion. Extends to whether decision maker appointed under competitive merit based program or whether they are able to access appropriate training and education. D. Ch. 8 - Caught between Judicial paradigms and the administrative states pastiche: tribunal independence, impartiality, and bias 1. Introduction: decisions that are partial or bias will be over turned. Impartiality refers ideal state of the decision maker or institution. An impartial decision maker is one who is able to make judgments with an open mind; doesnt have his mind already made up. Independence is the means of achieving impartiality. (ensuring that they are not too dependent on govt for necessities of day to day functioning) 2. Sources of the guarantee of an independent and impartial tribunal: comes from common law, constitutional or quasiconstitutional principles. a) Common law: two principles of natural justice, form right to independent and impartial proceeding. (1) Rule against bias: A decision maker should neither judge his own cause nor have any interest in the outcome of a cse before him. Nemo judex in sua causa debet esse = no one is fit to be the judge in his own counsel. This avoids circumstances in which decision maker acts as prosecutor and judge in the same matter, OR decides for personal gain. (2) A decision maker should hear and listen to both sides of the case before making a decision. Audi alteram partem = hear the other side. Seeks to encourage decision maker to focus his decision on the facts of dispute, relevant law, and not extraneous or irrelevant considerations. 3. What is tribunal independence and why is it important: tribunals ability to decide matters without inappropriate interference or influence. a) Tribunals are linked with executive branch through minister of Cabinet. Enabling statutes and other statutes require them to file annual reports to minister, keep contract. Minister appoints and removes members of tribunal. Can be possible interference from regular interactions, about how to decide certain files. 4. The development of the law of tribunal independence in Canada a) Summary of this section: Tribal independence developed in three waves -(1) Independence of judiciary as the foundation on which the mould the concept of administrative tribunal independence (2) Decision in Ocean Port Hotel affirmed the hybrid nature of tribunals and maintained that there is no general constitutional guarantee of independence where tribunals are concerned (3) Retrenchment - litigants pushed judicial declarations that administrative tribunals independence is guaranteed by the Constitution b) *FIRST WAVE*The theory of judicial independence: purpose, to boost confidence in the justice system. (1) Three objective structural conditions have been identified as necessary to guarantee independence. These three serve to reassure the public that the possibility of interference in judicial decision making by the executive and legislative branches of govt has been reduced, if not eliminated. (a) Security of tenure: targets govts ability to remove a judge for rendering decisions that govt doesnt approve. Can only be removed for cause, can hold office until good behavior or age 75 (Constitution guarantee). Must have opportunity to respond to allegations. (b) Financial security: (1) govt will not alter their pay for arbitrary reasons when decisions are rendered that govt is discontent with (fixed salary under constitution, have compensation commissions to help negotiate their pensions, pay) (2)amount that judges are paid will be sufficient from keeping them find alternative means of income (c) Administrative (institutional) control: making sure judges are put in compromising situation where they might choose to make decisions to protect their employment/interests, rather than for the sake of rendering decisions solely on basis of legal judgment. i) Manner in which affairs of the court are administered - budgetary allocations for buildings, equipment, assignment of cases. How this should be divided between judiciary and other branches of govt. (getting own funding may make them resort to soliciting funds from govt or other). Here is where the problem of independence and administration arises (between court and govt) b/c they need provincial legislature or executive involvement. (2) Adjudicative independence: independence from inappropriate interference by other decision makers in deliberations (ie., pressure) Relates to internal process and relation matters between decision makers. c) From judicial independence to tribunal independence: (1) Argued that constitutional (ss 7 and 11(d) Charter), unwritten principle of judicial independence, and quasiconstitutional provisions (Quebec Charter and Bill of Rights) guarantee tribal independence.

(2) Test for adequate tribunal independence: whether a reasonable, well-informed person, having though the matter through would conclude that an admin decision maker is sufficiently free of factors that could interfere with his ability to make impartial judgments. (3) Standard of tribunal independence - Canadian Pacific Ltd. v. Matsqui Indian Band: test must be applied in light of functions being performed by specific tribunal, level of independence (security of tenure, financial security, admin control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths in office. (this is a QUEBEC case) (a) Facts: Case argued under s.23 Quebec Charter. Held that directors of liquor licensing board had security of tenure although the terms of office were limited. (b) Holding 1: Court held that requirements of tribunal independence does not necessity that actors, like judges, hold office for life. (c) Reasoning: must avoid the possibility of being dismissed at pleasure of executive. Fixed term was acceptable b/c provided expressly that decision makers could be dismissed only for specific reasons. They could also contest dismissals in court. Sanctions were available for interference by executive in directors term in office (d) Holding 2: admin control was sufficient, b/c (reasoning) it was not unusual for minister to have many points of contact with tribunal under its responsibility. Theres no evidence showing minister could affect decision-making. (4) Objective guarantees of independence: most tribunal chairs are responsible for distributing their own caseloads, management, has authority to allocate budgetary resources. Pay set be legislation, if part time, pay is disproportionate to skill (done for honor not riches). Can be appointed for variety of terms. some statutes provide fixed term appointments, some statutes dont mention renewal, in some appointments are non-renewable. (a) At pleasure appointment: allows govt to appoint member for as long as the govt deems fit. Can theoretically remove if decisions are not in line with expectations. This opens the door to govt interference with tribunal decision making. (5) *2ND WAVE* Ocean Port Hotel: (a) Issue: whether at pleasure appointments fail to provide adequate guarantees of independence from arbitrary interference from the executive branch (b) Arguments: Ocean Port Argued that Liquor Appeal Board lacked sufficient independence to render a fair dealing. Under the Act it said the members and chair were to serve at the pleasure of the Lieutenant Governor in Council. Argued that Board required the same degree of independence guaranteed to the courts (c) Court: tribunal independence is a common law principal of natural justice; degree of independence could be ousted by express statutory language, so long as its constitutionally valid. General rule: admin tribunals do not attract Charter or quasi-constitutional requirements of independence. But by nature of work, some may be subject to these protections, or by provincial or federal quasi-constitutional statutes. (d) Holding: there is no constitutional guarantee of admin tribunal independence. The constitutional judicial independence could not be translated to this b/c that is there to prevent interference from executive. Here, admin tribunal is not separate from the executive govt, it is a part of it. Tribunals are made to implement policies of executive branch, and are thus required to make quasi-judicial decisions. Their question of independence is a question for parliament or legislature (6) Keen v. Canada: President Keen shut down a plant that was primary source of medical isotopes used in health care b/c it did not meet health and safety standards (no jdx over health). Minister Lunn was concerned, had meetings, spoke to her, other members, then passed legislation that forced reactor to remain open for period of time. Minister wrote to President b/c she did not comply, she questioned his judgment. He thought her decision demonstrated her inability to manage risk to health of Canadians, and told her he was considering telling the governor in council to have her removed. She was supposed to get to parliamentary committee explaining her position, but the night before, her position was terminated. Was demoted to regular member of the commission, she resigned months later. (a) Issue: did she receive adequate procedural fairness in the manner of her dismissal (federal court) (b) Held: circumstances of her termination were sufficient to satisfy the requirements of fairness for an at pleasure appointment. It was enough of a procedure that minister wrote to her, stated his concerns, reasons for concerns, that he might recommend her removal, she had opportunity to respond. (7) Dunsmuir: federal court - lower level of procedural fairness is required on termination of an at pleasure appointee than by the dismissal of an appointee instated on terms of good behavior. For at pleasure jobs, procedural fairness is needed to ensure that public power is not exercised capriciously d) Reasserting push for independence: Unwritten constitutional principles, tribunal independence, rule of law

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(1) McKenzie: petitioner (appointed rescinded mid term) argued that unwritten constitutional guarantees of independence should be expanded to residential tenancy arbitrators b/c they have court like powers, procedures need more strict procedural fairness. Violation of rule of law if not given. (a)Reasoning/Analysis: i) Principles of PEI Reference, held that judicial independence not only stemmed from charter (7 and 11d) but also derived from unwritten constitutional principles dating back to UK Act of Settlement 1701. ii) In Alberta v. Ell, Court determined that unwritten constitutional principles serve to protect the judicial independence of justices of the peace. Has extended to others, so should extend to tenancy arbitrators too. iii) Rule of law will keep the legislature from inappropriately vesting tribunals with diminished forms of natural justice of budgetary or other pressures make it convenient to do so. e) The appointment & removal process: institutions, ideologies, & institutional culture (1) Tribunals are distinct from courts, they are institutions in which members of staff work together with broad frame work aimed at managing a particular sector or industry through their experience. Designed through statute to reflect interests within sector. Industrial culture plays important role in its goals, having work place in which all members are comfortable with diverse opinions. Should a member be removed who is disruptive to the work place culture? (2) Appointments, adjudicative independence, and managing necessary interactions with executive branch are central independence-related concerns for tribunals. 5. Reasonable apprehension of bias: decision maker has an interest in the outcome, nature of admin state (actors, govt ministers). Perceived attitude bias in decision maker, concern with practices used by admin bodies. a) The rule against bias: nemo judex rule maintains confidence in the admin of justice, preserve appearance of impartiality in decision making process. Ensures that decision makers are not reasonably perceived to be deciding matters that will benefit them or others they are in relationships with. Avoids decision making partiality that will result in negative treatment of a party, as a result of the decision makers interests/relations. Prevents decision makers from making decisions based on factors that are irrelevant to the decision-making process. (1) Allegations of reasonable apprehension of bias exist in two forms: (a) Perceptions of individual bias: deals with impartiality of individual decision makers (b) Perceptions of institutional bias: deals with whether reasonable perceptions of partiality regarding the decision making body as a whole can be raised in a substantial number of cases. (2) Rule applies to all actors, ministers, public officials. If proved, decision quashed, reheard by new panel. b)The reasonable apprehension of bias test (1) Held in Committee for Justice and Liberty v. National Energy Board - panel for board was responsible for receiving applications and issuing certificates for pipeline. Chair had also previously been involved in a study group that had put in an application. (a) Dissents test in court appeals words: what would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude? (grounds for apprehension must be substantial. A real probability of bias should be demonstrated). (b) Standard for bias varies by context. The nature and context of decision making process drives the content of procedural fairness including what constitutes impartiality. (c) Held: The Chairs involvement in decisions leading up to one partys application suggested he might be biased in his capacity. (d) Must balance factors - decision being made, nature of statutory scheme, agencys choice of procedures to determine which procedural safeguards are needed (independence & impartiality) (2) Perceptions of individual bias: four situations when a reasonable apprehension of bias may arise -(a) Pecuniary or material interest in the outcome of matter decide d a i) Pecuniary interest: direct financial interest. Receiving monetary gain from decision. nemo judex maxim is designed to prohibit actor from making bias. (1) Energy Probe v. Canada: Board renewed license of Ontario Hydro. Part time member of panel was president of a company that supplied cables to plants. Was a shareholder of company, had supplied to Hydro in past. Probe contested license to be quashed. Held: no reasonable apprehension of bias b/c at the date of hearing, had no contract with Hydro, not a shareholder, no certainty he would even sell to them. Only direct and certain financial interest can constitute pecuniary bias. (indirect gain has prevailed).

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ii) Non-pecuniary material interest: interests that are other than money - Services Employees International Union Local 204 v. Johnson: Board had potential interest in case before them that dealt with circumstances in which govt could terminate their appointments. (b) Personal relationships with those involved in dispute: whether relation presents significant enough interest to affect impartiality of decision maker and amount of time has passed - whether the relationship is current enough to reasonably pose a significant threat to impartiality. i) Brar v. College of Veterinarians of BC: adjudicators term came to an end, in the middle of a hearing. Tried extending it through application and asked for re-appointment cos would not be renewed. Complainants send letter to tribunal chair & ministry asking for her appointment extended so decision can be made. Respondents sent reply letter to each w/ application for reasonable apprehension of bias before tribunal - she would be indebted to complainants and would rule in their favor. Held: no reasonable apprehension of bias b/c no evidence to support assertion. ii) Marques v. Dylex: labor board member was previously lawyer in the firm acting for earlier iteration of the union appearing before his panel - was not disqualified for appearance of bias b/c over a year had passed since member was involved in firm and had nothing to do with the predecessor of the inion. iii) Diminishes appearance of bias: Amount of time that has passed between members active association with the person involved in the dispute and the members appointment to tribunal (c)Prior knowledge or information about matter in dispute: i) Wewaykum Indian Band v. Canada: sets standard for admin tribunals and judiciary. property dispute between two First Nations bands. Mr. Justice Bennie was previous associate deputy minister of justice 19821986, was in a meeting where he got information about one of the bands claims. Challenged for reasonable apprehension of bias. Parties argued that he was involved in developing Crowns litigation strategy against them. Held: although he was connected with file, he was never counsel of record, and played no active role in dispute after claim was filed. File transferred to Vancouver office, lawyer here handled it. No reasonable apprehension of bias. ii) Mediation privilege: common law concept precludes tribunal member from adjudicating a case that he has mediated in the past - an attempt to avoid reasonable apprehension of bias that may come with prior knowledge. This can be directed by statute (d) An attitudinal predisposition toward an outcome: decision makers comments during both the course of the hearing, and outside the proceedings. Antagonism towards litigants, ex parte communications, and irrelevant comments, as well as member of the tribunal taking unauthorized role as advocate to the proceeding before it..all give rise to reasonable apprehension of bias. i) Individual bias cases apply: reasonable apprehension of bias test (1) Law Society of Upper Canada v. Cengarle: the original hearing panel had been interventionalist. Sheer volume of interventions was not marker whether process had been tainted by reasonable apprehension of bias. But 16 of 55 appeared reasonable apprehension of bias - the panel assumed role of prosecuting advocate, and found chair of original hearing intervened excessively during examination in chief of certain witnesses and had done so that made it seem like he was cross-examining them. (2) Ex parte communication: decision maker spoke privately to one of the parties. Also bias when comments show predisposition towards certain outcome in the case, (3) Comments outside the hearing room about ongoing case. Standard for determining bias: whether the adjudicator has a closed mind, whether decision maker is amenable to persuasion or his comments indicate his mind is so closed that any submission by parties would be futile. ii) Policy making and investigatory functions apply: closed minded test (1) The degree to which prior fixed view will be accepted is determined by nature and function of decision making process - Old St. Boniface Residents Assn Inc. v. Winnipeg: b/c of nature of municipal governance, its expected that councillors will have a position during election time prior to sitting in the final decision on same issue. Held - Test, by keeping in light the nature and function of this council, should be: disqualified for bias if it can be established in fact that a councillor has such a closed mind on a matter that any representations made would be futile. (2) Newfoundland Telephone: where multifunctional administrative body performs investigations, policy making, and adjudication, they may be afforded more freedom to hold fixed view

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(3)

during investigative or policy makings stage, than at adjudicative stage, so long as no constitutional contraventions. (3) Specific view on area of law through academics - Great Atlantic & Pacific Co of Canada v. Ontario (Human rights commission): professor wrote extensively against gender discrimination, then appointed board of inquiry to adjudicate human rights applications. Held: issue of professors advocacy did not need to be determined. In expert tribunals, its common that members will be chosen from where expertise has been shown (academia). Perceptions of institutional bias (a) Bias, adjudicative independence, and policy making (and whose policies are they anyway). i) Three modes of policy making by admin tribunals: (1)decision making; (2)informal rule making through the use of such soft law as guidelines, bulletins and manuals, (3)formal rule making through delegated legislation. ii) Policy making relates to the expertise of the tribunal. Serve to further law under statute that tribunal has been mandated to administer, promote consistency in the decisions rendered by tribunals members, and to render tribunal more efficient in its decision making process. iii) Tensions when policy making activities infringe adjudicative independence of tribunal decision maker decide free of inappropriate interference with by other decision makers, or pressurized to decide a certain way or substitute anothers decision for your own. (b) Full-board meetings: Court has set out guidelines that tribunals should follow so that members can collaborate within their institution to promote consistency of outcome without compromising the adjudicate independence of any one decision maker (or fairness to the parties) i) Consolidated-Bathurst: Ontario Labor Relations Board held meeting of the full board to discuss draft reasons of one of its three member panels. (purpose of meeting is to evaluate consequences of proposed policy) Decision dealt with whether particular test should be replaced by another. (1) Issue: whether full board meetings constitute breach of the natural justice principle, he who hears must decide, by replacing the decision makers in a situation where they can be influenced by others who have not heard the evidence or arguments. (2) Argued: meetings unacceptable b/c parties do not opportunity to respond or answer issues that may be voiced by board members. Cast matter of Improper encroachment on adjudicative independence of decision makers and lack of opportunity to know the full case to be met. (3) Reasoning: Must have full board meetings, allowed boards with heavy case load benefit from acquired expertise of collective, outcome of disputes did not depend on identity of decision maker. No outside interference can pressure decision maker. Discussions with colleagues does not constitute infringements on the panels capacity to decide issues, nor does it prevent them from adjudicating in accordance with their own conscience and opinion. Decision maker will be responsible for the decision. (a) Conditions for holding meeting so natural justice is not breached: discussions be limited to law or policy, not factual issues; parties be given reasonable opportunity to respond to any new ground arising from meetings. Checks and balances - not keep meeting minutes, no attendance, no holding votes at end of discussions. (4) Holding: full board meetings do not constitute breach of natural justice. ii) Tremblay: practice at CAS made consultations compulsory when proposed decision was contrary to previous decisions. Factors showing lack of decisional independence - president could refer matter before another member for plenary discussion. (1) Reasoning: Decision maker may not be free to refuse to submit a question to consultation process b/c statute expresses that they must decide matters through group consultation to acts that goes against legislative intent. (2) Holding: imposition of consultation meetings by member of the board who was not on panel could amount to inappropriate constraint. Even in situations where consultation process is voluntary, must see if practice of tribunal shows systematic pressure, (c) Lead cases: Geza v. Canada (Minister of Citizenship and Immigration) i) Facts: selected one case initiative to enable full board hearing regarding several similar refugee claims, to have informed findings of fact, analysis of legal issues. Case chosen was to be representative of issues that recurred when the Roma were seeking refugee status. ii) Arguments: case chosen was designed to reduce number of successful Roma refugee applications, therefore, showed bias.

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iii) Holding: reasonable person would conclude that lead case initiative was designed not only to generate consistency, but to reduce number of positive decisions that might be rendered in favor of the 15,000 Roma claimants and to deter future claims. Reasonable apprehension of bias arose from totality of evidence several factors, not just one determinative fact. (d) Adjudicative independence and the legislative process i) Communications, Energy, and Paper Workers Union of Canada local 707 v. Alberta Labor Relations Board: Board was consulted for its knowledge in field by executive branch to help govt implement new legislative policy. As a result, faced legal battle - lacked indepenence and impartiality with respect to any matter it had to deal with in touching labor law, and a loss of confidence by unions affected by the policy. ii) How should feedback on the industry be transferred to the executive dept that has responsibility of the tribunal? How a tribunal can communicate such information while preserving its appearance of impartiality and independence from the executive branch of govt. (e)Multifunctionality i) Plurality of functions a tribunal serves, through experts and other staff. Some have it stated in enabling statute. Some (CITT) develop policy, adjudicate, conduct inquiries, hear appeals based on decisions, advice on matters. ii) This has been called into question by litigants on judicial review cases where staff research was not revealed to parties, raising issues of procedural fairness. iii) Many tribunals make available to public their staff reports, research, training manuals, adjudicator decisions, making guidelines - on websites. iv) Common complaint of multiplicity of functions: tribunal acts as prosecutor and judge in same manner. v) Generally held: overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with Constitution or applicable quasi-constitutional enactment. vi) Lippe: test for impartiality- whether the system is structured in a way that creates reasonable apprehension of bias on an institutional level. Several factors can be used to see if bias exists: look at the tribunal in question, the way it operates in practice, safeguards that may exist to prevent incidents of bias in practice. vii) Currie v. Edmonton Remand Centre: illustrates how operational practice may have negative effect on the outcome (1) Issue: whether disciplinary hearings used in a provincial prison exhibited signs of institutional bias in a substantial number of cases. (2) Facts: disciplinary hearings used to determine whether prisoners had committed breaches of acceptable standards of conduct within prison and appropriate punishment for contraventions of the rules/regulations of the correction institution. Those responsible for maintaining order were also placed in the disciplinary panels - this appeared conflicting. Institutions primary decision would be maintained at the expense of prisoner having fair opportunity to contest it. (3) Holding: institutional bias found in overlapping functions of prison guards and disciplinary board members. Although 11(d) did not apply in this case, there was a breach of s.7 Charter E. Ch. 12 - Part II Procedural Fairness and the Principles of Fundamental Justice 1. Duty of procedural fairness requires decision makers to provide fair hearing to individuals subject to their authority (not oral hearing, but full and fair opportunity to respond). 2. Implicit in duty to hear other side, is duty to disclose all facts and contentions 3. Duty of fairness might also be owed under the Charter: s. 7 - life, liberty, security - has procedural safe guards a) To access procedural safeguards, must first establish a threshold that their life, liberty, or security interests are impaired by the relevant decision. (1) Life: right to live and be free of state conduct that increases risk of dying (2) Liberty: implies at least two elements - freedom of physical restraint and freedom to make fundamental life choices. (3) Security: has a physical (threat of harm) and psychological component (state imposes severe psychological harm). (4) If you cannot show this, might still get procedural fairness through common law or Bill of rights. 4. Relationship of procedural fairness to legislation: legislation can determining content of available procedures. a) Bill of Rights provides procedural safe guards that cannot be overridden unless expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights. (do not have to show life, liberty, security is at stake). 5. Content of the principles of fundamental justice in statutory contexts: common law procedural fairness informs specific content of principles (hearings, disclosures, reasons, time decisions) and reasons for interpreting them. Determined flexibly, but in standard of correctness. 6. Oral hearings and the scope of section 7

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a) Singh v. Minister of Employment and Immigration: 7 refugee claimants had no opportunity to present their cases in oral hearings before either decision maker or Immigration Appeal Board , who hears them based on reasonable grounds that person can make successful claim at oral hearing. (1) Three judges found infringement of s. 7Charter, other three found s. 2(e) Bill of Rights. Even though no right to remain in Canada, Singh had constitutional right to have his claim determines in accordance with principles fundamental justice. Generally, oral hearing required for interests under 7, discovery of ministers case. Statute barred such hearings. (2) Example of how Charter can overcome clear legislation. Foundational case for s. 7 applying to non-citizens and impact on Canadas statutory and institutional framework. (3) Common law determines content that procedures must have to pass constitutional muster, even though Charter can take you to procedures 7. Incorporation of the common law framework under section 7 a) Baker: Determined she had right to make written submissions, have them fully considered, no oral hearing. Children denied independent standing b/c their interest could be communicated to minister and defned by Bakers legal counsel. 5 factors: (1) Nature of decision: if judicial vs. quasi, adjudicative vs. admin, heavier procedural safeguards. (2) Role and place of decision within statutory scheme : if decision is exception, fewer procedure due. If procedural guards elsewhere and decision final, this would mitigate in favor of more stringent procedures. (3) Importance of the decision to the individual affected (4) Legitimate expectations (5) Measure of deference to the ministers or agencys choice of procedure. b) Suresh v. Canada: was detained on security certificate, and member of Liberation Tigers of Tamil Eelam, adjudicator found him inadmissible as refugee b/c membership with terrorist organization, should be deported. Challenged on constitutional and administrative grounds - would be subject to torture in Sri Lanka, violates principles of fundamental justice s. 7 Charter. Minister failed to provide procedural safeguards and reasons for decision under s. 7 - Suresh had no opportunity to respond to memorandum by officer to minister that he is danger to canada. 8. The duty to disclose and the right to reply a) Suresh v. Canada: Held: no right to oral hearing, but had right to disclosure of materials on which Minister based her decision (memorandum of officer who reviewed case), right to reply to the claims relevant to the threat he posed to Canada and risk torture if deported. Minister had obligation to consider his submissions. b) Pritchard v. Ontario (human rights commission): common law doctrine of solicitor-client privilege barred complainant before Ontario HRC from obtaining disclosure of legal opinion drafted by commissions in house counsel. (meeting requirement of procedure does not require disclosure of privilege) (was it a legal opinion in Suresh. Distinguish CL from s.7). 9. The duty to give reasons a) Baker: decision makers have a duty to give reasons whenever important interests are at stake. b) Suresh: must provide responsive reasons that demonstrate both that the person danger to Canada and there are no substantial grounds to believe he would be subject to torture. (duty is heavier if interests are significant) c) This is part of duty of procedural fairness. d) Two standards of review (1) Standard of correctness: a decision will be quashed on this standard if it does not prescribe the same outcome as the reviewing court would have prescribed. (2) Dunsmuir v. New Brunswick: standard of review - Reasonableness (3) Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador: doubt that inadequate reasons will equal a violation of procedural fairness. If theres reasons, duty has been met, adequacy of those reasons will be assessed together in the substantive review, on reasonableness not correctness standard. 10. The right to state-funded legal counsel a) Court held: neither procedural fairness nor rule of law in admin setting requires the state to fund legal representation. b) Where decision impairs s. 7 interest, state must provide legal counsel in order to satisfy requirements of fundamental justice c) New Brunswick v. G.(J.). minister of health and community extended by 6 months previous custody over indigent complainants three young children. Held that forced separation would have serious and profound effect on parents psychological integrity and stigmatize her, thereby engaging her right to security of the person. Such hearings are adversarial, held in court. Given seriousness of interest, complexity of proceedings, limited capacities of individual, held that principles of fundamental justice require fair hearing and that would require Crown to provide legal aid to parent. (1) s. 7 infringements are rarely justified under s. 1 b/c rights protected under 7 are very significant and b/c rarely will a violation of the principles of fundamental justice (fair hearing) be upheld as a reasonable limit justified under s.1 in a free and democratic society.

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Undue delay a) Element of procedural fairness - concerns timeliness with which administrative proceedings are conducted. b) Blencoe v. British Columbia: undue delay in the resolution of a human rights complaint could infringe the security interest protected under s. 7. Delay could result in stigmatization, impairment of psychological integrity. (1) Facts: minister removed by premier b/c assistant accused him of sexual harassment. Then 2 women filed sexual harassment complaints against him in Human Rights Commission. 30 months later investigation complete, media attention intense. Career over, clinical depression, financial resources depleted, family moved twice to flee stigmatizing effect of complaints (2) Held: even though delay was cause of his grief, the state has not interfered with him and his familys ability to make essential life choices. State did not infringe his s.7 security interest. c) Wareham v. Ontario: W brought class action on behalf of persons with disabilities. Claimed that her and class represented maladministration under Ont Dis Supp Program. On appeal, amended s. 7 aspect of claim to include attach on process used to determine eligibility of ODSP benefits - procedure designed to cause delay, hardship for applicants, the entire procedure constitutes an infringement of the principles of justice. 12. Ex parte, in Camera hearings a) Charkaoui v. Canada: IRPA permits detention of foreign nationals, permanent residents suspected of terrorism, not charged criminally, no presumption of innocence or other due process presumptions. 5 allegedly involved, one was permanent resident, others were foreign nationals. 78-84 detention and reasonableness are subject to federal court. Ex parte and in camera hearings (closed door which neither person named on certificate nor his lawyer is present). Judges provides summary on which certificate , not its sources. Judge could rely on inadmissible hearsay by foreign security agencies that commit torture. If judge finds certificate reasonable, no appeal. (1) Court founds proceedings engage s. 7 b/c person could face detention pending deportation (liberty), and removal may be to place where life/freedom threatened (security). Held: review procedure violated principles of fundamental justice b/c denied person a fair hearing (judge decide based on relevant laws and facts) Judge is relying on crowns investigation and decides without full fair appraisal. (2) Court suggested special advocate (independent security cleared lawyer). But Crowns failure lead to violation of s.7 not being saved under s. 1 because infringement did not minimally impair the right at stake. (a) Special advocate can save it under s. 1, and this in non constitutional context would not be consistent with the common law duty of fairness b/c content of the common-law duty informs and so is similar to the procedural content of s.7. Can be upheld if statutory language explicitly limits reach of the common law of procedural fairness (3) Held that Crown has an obligation to keep and not destroy all documents reviewed to allow assessment by reviewing judge. Because s.7 in play, must disclose all information by CSIS to ministers and judge, to protect fundamental rights affected by security certificate procedure. b) Issue - whether reviewing judges may balance interests of the individual against those of society at the s. 7 stage of determining the content of the principles of fundamental justice (1) Thompson Newspapers Ltd v. Canada: determining their content requires just accommodation between interests of the individual and those of the state. c) Deprivations of liberty arising from detention are so serious that s. 7 and 14 Charter reflects those principles. Apply to everyone regardless of civil or political status. For citizens, but others who do not have citizenship and are subject to security certificates rather than criminal law, Charter safeguards against arbitrary prosecution are silenced b/c in security certificates, there is no prosecution. F. CB Ch. 3 - Fairness: Sources and Thresholds 1. Baker decision determined scope and content of common law duty of procedural fairness. Addresses circumstances in which judge will require public authorities to observe fair procedures (heard by independent and impartial decision maker) AND specific procedures necessary to achieve this end. 2. Enabling statute: detailed list of procedural requirement. In Singh v, Canada: described procedures for determining whether person was Convention refugee. Described complete procedural code governing refugee determinations and thus superseded common law duty of procedural fairness. 3. Subordinate legislation: administrative policy and practice: Rules made pursuant to statutory authority (are binding) Enabling statute may delegate to executive, minister, or board to enact regulations establishing procedural requirements. Delegated b/c of expertise and efficiency (familiar with decision making process) better placed to do this. Legislatures do not have info to tailor to specific tribunals. a) Accountability 11.

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(1) Principal-Agent problem - Risk that those who make the rules are not following the wishes of those who delegated the power. to minimize risk, delegated legislation subjected to various mechanisms of accountability and scrutiny. Jdx enact law providing for legislative scrutiny of subordinate legislation. (2) Public consultation: requiring bodies by policy/statute to provide public notice of regulatory initiatives, including draft negotiations, and an opportunity by affected parties of the public to comment. Some have incorporated notice and common obligations in specific regulatory regimes. (3) Judicial review of subordinate legislation: validity may be challenged where steps for effective enactment not followed. Challenge on substantive grounds. Must comply with Charter and other constitutional and quasi constitutional instruments. Subject to judicial review ultra vires (must fall within scope of and respect the limits prescribed by the regulation making or rule making authority conferred in the delegating statute). Implied requirement in delegating statute, that subordinate legislator will comply with principles of procedural fairness. 4. Policies and guidelines: power to make these may be in enabling statute. Soft law that is non binding but is relied upon in procedural domain. 5. General procedural statutes: this is an additional source of procedural requirements. Prescribe common procedural standards for decision makers. Scope and application of these codes may be modified or limited by public authoritys enabling statute and delegated legislation. 6. Common law procedural fairness: if particular procedure not required in enabling statute, delegated legislation, or general procedural statute, may be obliged under principles of common law. Entitled to be heard by authority, in an impartial and independent hearing. 7. The traditional common law doctrine a) Cooper v. Board of Works for Wandsworth District (1) Facts: Board required 7 days notice before building house to give directions about drains, if not, house torn and will recover expenses. Cooper gives notice, Board denies, starts making house within 5 days, Board tears down without notice to Cooper. Action for damages and trespass. (2) Rule: no man is to be deprived of his property without having an opportunity to be heard (3) Reasoning: no harm to hear from the party before giving him a huge loss. (4) Held: board was not justified under statute b/c not qualified themselves for the exercise of their power by hearing the party to be affected by their decision. 8. The modern common law doctrine: Dimensions and limitations of procedural fairness: decision makers exercising judicial or quasi judicial functions required to comply with natural justice, but not ministers, public servants, or tribunals exercising admin functions. G.CB Ch. 4 - The level and choice of procedures pp (278-285) 1. Relevant statutes 2. The case for general statutes: an appraisal III. PROCEDURAL OBLIGATION TRIGGERS (Knight Three-prong and the Concept of Legitimate Expectations) : if these met, then procedural fairness is due (which of the procedural obligation applies A. CB pgs. 85-105 1. Nicholson v. Haldimand-Norfolk (Regional Police Commissioners: Nicholson a constable for 15 months, discharged without given opportunity to make submissions. (Police Act only protects cops over 18 months) a) Reasoning: necessary to examine position of constable at common law. Not held at pleasures, so there must be cause for dismissing him. Words probationary and at pleasure reduce status of officer because less than 18 months service (1) Although he cannot claim procedural protections afforded to a constable with more than 18 months service, he cannot be denied protection, he should be treated fairly not arbitrarily. (2) Procedural required: Should have been given opportunity (writing or oral) to respond, incase Board made mistake of fact or circumstance, then decide final decision. b) Rule: Rules of natural justice run in sphere of quasi judicial, and in admin field there is a general duty of fairness. c) Disposition: appeal of Nicholson allowed. (quashed decision not the Boards proceedings) 2. Modern Doctrine: after this case, gradual expansion of duty of fairness to areas of admin decision making, including decisions of correctional authorities affecting the rights, privileges, and interests of inmates that had previously escaped judicial scrutiny for compliance with the rules of natural justice. a) Knight: recognized that in dismissing at pleasure director, board bound by the duty of fairness. Court extended fairness beyond domain of office holder, dismissible only for cause (rejected rigid categories before Nicholson) Set down dividing lines of new threshold for duty of fairness based on distinction between decisions of legislative and general nature, and acts of administrative

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and specific nature. Found conception of procedural fairness as free standing common law right (did not care to find it in decision makers enabling statute) 3. Knight v. Indian Head School Division No. 19: board of education dismissed director when he refused to accept renewal of his contract for shorter term than original. Brought action for wrongful dismissal. Court held board did not need to show cause for dismissal either under contract of employment or under The Education Act. Director argued he was entitled to procedural fairness before being dismissed and had not been treated fairly. a) Issue: Whether procedural fairness was due to an office-holder at pleasure b) Held: Procedural fairness was due but the requirements have been satisfied. c) Reasoning/Analysis (1) Procedural fairness: if factors of fairness found then contract of employment must be considered to determine whether entitlement is limited or excluded entirely. Duty to act fair stems from fact that employer is public body whose powers are derived from statute, must be exercised according to rules of admin law. (examine employer/employee relation) (2) General duty of fairness: depends on three factors (not all admins are subject to this duty) - ( Held: all 3 met, did have a general duty) (a) Nature of decision to be made by admin body: decisions of legislative and general nature (no duty) distinguished from administrative and specific nature (yes duty) Finality of decision must be considered. Preliminary nature will not trigger duty to act fairly, more final nature will. (*here, final and specific = there was a duty) i) Before this case, duty to act judicially applied to tribunals rendering judicial or quasi judicial nature. After Nicholson distinction is less important, little utility since duty to act fairly and duty to act judicially have roots in same principles of natural justice. (b) Relationship between body and individual: i) Types of Relationships: (can also be altered by contract, legislation, more than one category) (1) Master and servant = no duty to act fairly when terminating relationship (no public employment service, no statute, no office) (2) Office held at pleasure = no duty to act fairly b/c employer can decide to terminate for no other reason than his displeasure (*here, duty) (3) Office from which one cannot be removed except for cause = duty to act fairly. ii) In this case, its the second category. Should give duty to act fairly, require admin body to give office holder reasons for dismissal and opportunity to be heard. 2 and 3 no different, purpose for duty is the same (change employers mind) since both use statutes. For 2, even giving of reasons and granting hearing, employers displeasure is still justification enough to validly terminate employment. (c) Effect of decision on individuals rights: right to procedural fairness only if decision is significant one and has an important impact on individual (Legitimate expectation). Right to continue employment or profession is at stake, requires high standard of justice. (3) The Act does not excuse Board from acting fairly when terminating an employment contract. But says, look to the contract. Rule: Presumed that parties intended procedural fairness would apply and would need explicit and clear language provision contract to override the presumption. (4) Content of duty to act fairly: based on circumstance of case, statutory provision, nature to be decided. (At pleasure requires minimum: notice of reasons for dissatisfaction, opportunity to be heard, sufficient fairness) (5) Compliance with duty to act fairly: His attorney and him kept negotiating with Board, they were hearing him. Court-he had knowledge of reasons for dismissal, and had opportunity to be heard, requirements of procedural fairness satisfied even if no structured hearing. Informed of reasons through meetings either personally or through solicitor. Could have said something at board meeting where decision made, attorney even met twice after to negotiate again d) Held: allow Boards appeal. Respondent was properly dismissed, his action should fail. 4. Dunsmuir v. New Brunswick (2008): Court changed application of procedural fairness to dismissal of public office holders. Held: where employment is governed by employment contract, disputes relating to dismissal should be resolved according to express or implied terms of contract and any applicable statues, regulations, just like any contractual employee. Not subject to public law duty of fairness, and employee can only use contract remedies in his challenge. a) Justified change: public law remedy for violation of proce fairness (quashing decision, reinstatement, salary and benefits from time of dismissal - less principled than private law remedy (adquate notice or pay in leu o notice) b/c amount of relief depended not on situation but length of time taken for resolution for judicial review application. b) Employee no longer can be restored to position, remedy not available for breach of contract, and no longer entitled to opportunity to meet allegations of dismissal, they have common law entitlements to: reasonable notice or salary in lieu and

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the opportunity to sue for wrongful dismissal, including enhanced notice rights or damages and punitive damages, - which adequately protect employees. c) Public law duty of fairness may still apply: (1) Where public employee is not protected by contract (judges, ministers, officials who fulfill constitutionally defined state roles) (2) Where an office-holder is expressly subject to summary dismissal (3) Where a duty of fairness flows by necessary implication from the statutory power governing the employment relationship (eg: statute that provides notice to employees of a motion to dismiss). 5. Legitimate expectation - procedural vs. substantive promises B. CB pgs. 109-113 Thresholds: whether general procedural codes, common law procedural fairness, and constitutional and quasiconstitutional sources are available to supplement these procedures, will depend on whether the threshold for their application has been met. 1. The Common Law Threshold a) Decisions that could be characterized as preliminary and not final, bearing on mere privileges, rather than rights, or issued from the exercise of an administrative or ministerial rather than judicial power fell below the threshold for application of rules of natural justice. b) After Nicholson: was there a threshold and is it to be defined. (were there 2 levels of procedural protection) c) Martineau v. Matsqui Inmate Disciplinary Board: two important features - 1) involved prison disciple, 2) primary concern was preliminary issue, allocation of original judicial review jdx between trial & appellate. (1) Procedural history: two people disciplined, without hearing. Application for review to Fed Ct Appeal, denied b/c no jdx. Application for certiorari in trial division which had jdx to grant usual remedies for review. Application for fairness requirement. The court argued certiorari can be used to review only judicial or quasi judicial functions. Supreme Court rejected argument and expanded certiorari limits to include enforcement of procedural requirements. (2) Reasoning: Courts should not distinguish, for drawing distinction between duty to act fairly and duty to act in accordance with rules of natural justice yields unwisely framework. (a) Inmate disciplinary board is a tribunal, subject to duty of fairness and if breached, person is entitled to seek relief from Federal Court, Trial Division on application for certiorari. (b) Wrong to regard natural justice and fairness as distinct and separate standards \ (c) Underlying question: did tribunal on facts of case, act fairly toward person claiming to be aggrieved? (3) Rule held: review by ceriorari availabe when public body has power to decide any matter affecting rights, interests, property, privilege or liberties of any person. d) Kent: Legislative functions and general in nature = no duty to act. As opposed to more administrative and specific nature = yes there is a duty. C.CB pp. 132-156 Decisions affecting rights, privileges, or interests 1. Re Webb and Ontario Housing Corporation: Housing Corp owed apartments, managed by Meridian, leased to Webb and her children. Meridian recommended termination b/c problem with children. OSH approved, application for termination brought before Landlord tenant act. Webb made application for reviewing OHC decision, application under act stayed. Webbs application dismissed. a) Issue: what is appropriate to require authority in the way of procedure, given nature of authority, the nature of its power and the consequences of the exercise of that power to the individuals affected, and nature of relationship between authority and individual affected. (procedural fairness) b) Rule: OHC in exercising termination, depriving appellant of lease, required to treat appellant fairly by telling her of the complaints, case against her, and giving her opportunity to answer to those complaints (not formally) c) Reasoning: There is no quasi judicial or judicial quality in regard to admin action. Board of directors are not a tribunal exercising statutory power by Act. (1) Deprivation of benefit of subsidized housing, she wont secure anywhere else (on welfare), adverse effects on her and her family because deprived of real benefit. (2) OHC did treat her fairly: was given notices in feb, aug, and again in aug. (3 total). community relations worker also knew of complaints, and advised her. appellant cant read but children can. 2. Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98: applied to join medical staff of hospital. Hospital Act gave board general responsibility for affairs and power to make bylaws - applications sent to College of Physicians for recommendation and to chief of its medical staff, and appointments committee. Denied. Applied again, application not sent to college, committee gave adverse recommendation without asking Hut to appear. Asked to appear,, but refused. Rejected again, refused to give reasons. Sought certiorari to quash. a) Rules: Body exercising public duty, if its decision will modify, extinguish or affect right/interest of affected person, must adhere to procedural standards, which will depend on nature and extent of right/interest. This applies when body vested with statutory power

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is accountable to power used to govt or appellate body, and if there is something that dictates particular procedural standard. Failure to provide standard will quash decision by remedy of certiorari, or through mandamus. Even if procedural standard breached, courts may refuse granting remedy in its discretion. b) Reasoning: Board has no duty to grant hospital privileges to Hut, had no legitimate expectation of being granted them, just a hope of benefiting from decision, had built up entitlement to hearing. But personal interests are affected. It staff recommends rejection, must be based on adverse finding. (1) He is a practicing doctor, ability to diagnose is limited to long as refused hospital privileges. Interests directly affected than those of doc no practicing in Alberta. (2) Interests are affected sufficiently directly and substantially. If appropriate standards of procedure not complied with by medical committee in first place, or board, certiorari available to quash decision. c) Held: should have given reasons for decision, and decision invalid because 2nd application not been sent to college, and because appointments committee had not given written report with reasons. 3. Notes: when a license is being taken away for case, there will be an obligation of procedural fairness, more often than not requiring hearing obligations at the high end of the range. a) Legitimate expectation: McInnes: boxer denied even though had been given such licenses in the past. b) License renewals: the greater the interest in renewal, and the stronger the entitlement to procedural fairness. 4. Inspections and Recommendations a) Guay v. Lafleur: L was authorized under Act to investigate financial affairs of taxpayers including G. L examined witnesses, G requested to present and be represented during examinations. L refused. G sought injunction. Court held G had no right to hearing because function was purely administrative, L was not deciding or adjudicating. b) Re Training School advisory: board gives minister advice about terminating wardships. Held, not entitled to disclosure of reports because board does not decide anything. c) In Re Pergamon Press: Rule - when theres no decision but only investigation or inquiry, rules of natural justice did not apply. investigatory work and discretion may lead to harsh consequences, so inspectors must act fairly. Duty rests on them and as many other bodies, although not judicial or quasi judicial but only admin. d) Re Abel and Advisory Review Board: reviewed patients in institutions who were not guilty by reason of insanity, make report and recommendations to Lieutenant Governor for release. Lawyers requested disclosure of files and reports when preparing for review but denied. At hearing, asked Chair, denied saying no jdx to give them. Application for review. Failed because disclosure prohibited by Act. (1) Rule: a party must have an adequate opportunity of knowing the case he has to meet, of answering it and putting his own case. (doesnt necessarily mean that reports should be disclosed) (2) Rules coming from Re Nicholson, Haldimand, Webb, Ontario: duty of fairness required of all persons or bodies exercising power even though the exercise of that power might be classed as admin rather than judicial or quasi judc (3) Reasoning: patients only hope for release is by favorable recommendation by Board. In purely administrative functions (not judicial or quasi), rules of natural justice apply.2nd de Smith test met when consider the effect of recommendation and its acceptance, has on freedom of applicants. (a) Chairman didnt need jdx /c reports which Board received were pursuant to Mental health act. Chairman didnt answer question by proper principles, this lead to failure of natural justice. (4) Holding: application granted, quash Chairmans decision, remit to Board for reconsideration e) Notes: Abel, in awake of Nicholson, not all recommendatory and investigatory functions will attract obligation of procedural fairness. Affirmed in Knight, decision of a preliminary nature will not in general trigger the duty to act fairly. Abel provides us with functional test for discerning exceptional cases in which that duty will be triggered, but not a bright line rule. f) Dairy Producers Co-operative Ltd. v. Saskatchewan (Human Rights Commission) : sexual harassment complain in work place. Commission appointed officer to investigate and provide a report on whether there was sufficient basis for recommending appointment of board of inquiry to adjudicate the complaints. Company knew, sought to secure further and better particulars of the complaint. Office found probable cause for infringement of Act. Commission tried settling, company provided with full details and evidence. When settlement failed, board of inquiry established. Company applied to quash board of inquiry, based on rules of procedural fairness during process leading to board. (1) Rule: commission is not obliged to comply with formal rules of natural justice, but is to comply with rules of procedural fairness. Procedural fairness requires complainant be provided with opportunity to make submissions, at least in writing, before action taken on basis of report. Hearing not necessary. Disclose substance of case against party before decision. (2) This assumes that report/recommendation will result in decision affecting anothers rights, otherwise, no duty of procedural fairness may arise. (3) Reasoning/analysis:

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(a) Investigator could report probable cause only, so did not affect rights of applicant (b) After that, settlement, that failed, then made board of inquiry - which give commission duty to provide applicant with the substance of the evidence against it before any hearing. (c) Applicant chose to proceed with negotiations as if it knew Commissions case, this decision amounted to a waiver of its right to object it had one. No suggestion that didnt know complaints, negotiations lasted for 6 months. (4) Holding: investigator and commission acted appropriately throughout. Application dismissed (5) Notes: at least one domain where procedural fairness obligations do not arise in an investigative area. g) Masters v. Ontario: investigators owed M a duty of procedural fairness in conduct of inquiry though not one that amounted to full trial/ Duty was fulfilled even though masters was not given access to questions that were asked of those interviewed, names, notes, transcripts, tapes. Sufficient that Masters was provided with summary of allegations and opportunity to interview witness es. relied on Knight - non-final nature. h) Irvine v. Canada: officer appointed by commission chair conducted a fact-finding investigation into possible anti-competitive practices, produced statement of evidence and provided it to commission and to parties under investigation. Could found that investigation was completely private, findings and recommendations can be made public only after full hearing by commission. i) Notes: sometimes, procedural entitlements of those participating or implicated in investigations/inquiries will be dealt with statutory provisions. D. Doctrine of Legitimate Expectation pp. 157-176: procedures will be required by reason of expectations generated in an affected person and not be entirely contingent on a detached analysis of the statutory power in question. Admin body may give to affected person by their decision an opportunity of making representations. Depends on if they have a right/interest, or legitimate expectation of which it would not be fair to deprive him w/o hearing what he has to say. 1. Used in cases where someone was seeking a license or permission, and those of who were renewing license. 2. Applies today - an expectation of hearing arising out of express representations, practice of holding such hearings, or combo. 3. Old St. Boniface Residents Assn Inc v. Winnipeg: claim of expectation would not prevail because other procedural protections provided for in relevant legislation. 4. Reference re Canada Assistance Plan: federal statute authorizes govt of can to enter agreements with provinces to provide costs of social and welfare programs, continue in force as long prov law valid or termination with consent, or unilaterally with one years notice. Fed govt passed bill that limited increase in financial contribution to BC, Alberta, Ontario. No notice given. a) Issue: whether govt was precluded from introducing bill by virtue of legitimate expectation that amendments would only be made to the agreements by consent. b) Rule: doctrine of legitimate expectations is an extension of the rules of natural justice and procedural fairness which may afford a party affected by the decision of an official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. c) Reasoning: doctrine does not create substantive rights (veto legislation). Part of procedural fairness which can govern admin body. When applicable, it can create right to make representations or to be consulted. Does no fetter the decision following the representations or consultation. (1) Two limitations: (a) Rules of procedure do not apply to body exercising purely legislative functions. (b) Purely ministerial decision, on broad grounds of public policy will afford no procedural protection. Attack upon decision must be based on abuse of discretion. Public bodies exercising legislative functions may not be amendable to judicial supervision. (2) Formulating and introducing bills is legislative function, courts will not inter mingle. (3) Parliament would be paralyzed if doctrine of legitimate expectation could be applied from preventing govt from introducing legislation. (expectations from statements made during campaign) Business of govt would be stalled. If cabinet is restrained, then so is Parliament. Will impugn legislative process. d) Disposition: appeal allowed. 5. Notes: Baker makes clear that substantive expectations ca generate an entitlement not to substantive outcomes but procedural protections if the decision maker is of a mind to defeat those substantive expectations. a) Rule for legitimate expectation: Council of civil service unions v. minister for the civil service : legitimate expectation may arise from express promise given on behalf of public authority or from existence of a regular practice which claimant can reasonably continue. For the latter - test if whether the practice of prior consultation of the staff on changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good admin for the govt to depart from the practice in this case. 6. Furey v. Roman catholic school board for conception bay center: board closed elementary school. Decided to keep this one open after meeting and negotiating, other 2 would close. Had discussion paper, negotiations in which public not involved. Dept of

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education issued guidelines to be followed - consultation, time frames, not followed. Residents argue decision taken without opportunity for public input, breach of procedural fairness duty. a) Reasoning: Here it was an admin decision, not legislative. Did this without procedural fairness. 2 years before they had, so parents had reasonable expectation that they would follow procedure again in the same fashion. b) Held: application granted, decision quashed, matter remitted back to board for reconsideration. 7. Attaran v. UBC: no reasonable expectation in UBC case because increase fees with consultation was new procedure, barely any students knew about it. Need knowledge of past practices OR beliefs they would be followed. 8. Estoppel: with knowledge of the promise or assurance in question, the applicants acted to their detriment in such a way as to make it inequitable for the other party to now assert the strict letter of the law. 9. Mount Sinai hospital v. Quebec (minister of health and social services): hospital was functioning in violation of its license. Minister said that if hospital relocated license would be regularized. Hospital engaged in fund raising and relocated. New minister in new govt refused b/c to issue license would be to commit govt to additional funds to support hospital and that was not govts priority. a) Procedural history: H sought mandamus to compel minister to issue revised license, but court refused b/c doctrine of legitimate expectations could not be used to achieve substantive outcomes. App court accepted this but ruled that H was entitled to revised license on basis of doctrine of public law estoppel. Minister appealed. Court held that not necessary to deal with issues of estoppel and legitimate expectation. Minister had already made decision conditional on hospital relocating and current minister had no basis for overturning. H had entitlement to license. Ministers refusal not supported by the facts, no evidence that granting it would involve commitment to additional funds. b) Doctrine of legitimate expectation: argued that imposes substantive rather than procedural result on decision makers. (1) Rule: looks at conduct of public authority in exercise of power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified. Expectations must not conflict with public authoritys statutory remit. (2) Reasoning: (a) Treated as form of estoppel but weight of authority shows that applicant who relies on doctrine of legitimate expectations may show that she was aware of conduct, or that it was relied on with detrimental results. (b) Ministers decision will be set aside through normal rules of procedural fairness. No need to expand availability or content of procedural fairness b/c conduct of successive ministers which amounts, only to aggravating circumstance. NO need to resort to doctrine of legitimate expectations to achieve procedural relief; substantive relief not available under this doctrine. c) Promissory estoppel: party relying on doctrine must establish that other party has 1) by words or conduct made a promise or assurance 2) which was intended to affect legal relationship and acted on. 3) reliance on the representation, and 4) he acted on it or in some way changed his position. (1) Reasoning: (a) Available against public authority in narrow circumstances. Requirements go beyond legitimate expectations, includes personal knowledge by applicant of the conduct of public authority, and reliance and detriment. (b) Test in public law is fairness, not adaptation of the law of contract or estoppel (private law). If this was private law, all requirements of rule are met. Public law estoppel requires appreciation of legislative intent in power whose exercise sought to be estopped. Legislation is paramount (c) Circumstances that would create an estoppel may have to yield to an overriding public interest expressed in legislative text. (d) Minister is mandated to act in public interest and if that defines opposing the award then he can do it and should not be estopped. Issue is the individuals caught in the transition from old law to new law, must be protected. Legislature intended for minister to decide on arrange of old and new policy, not the courts. d) Holding: dismissed ministers appeal. e) Notes: from Canada Assistance Plan, fairness might involve certain guarantees of formal justice such as equality of treatment, consistency in decision making, proportionality, protection of legitimate expectations and recognition of estoppel based on reliance. Woolworth Canada Inc v. Newfoundland (Human Rights Commission): board of inquiry for complaint of discrimination, allowed participatory opportunities to complainant and not respondent (right to comment on report). Caused appointment of board set aside. Although inequality not treated as independent ground of judicial review, but as the foundation for a successful allegation of a reasonable apprehension of bias. IV. PROCEDURAL OBLIGATION TRIGGERS (LEGISLATIVE DECISIONS & EMERGENCIES)

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A. Decisions of a Legislative and General Nature: Martineau: 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 the abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. Knight: no procedural duty for legislative functions in a procedural sense, and also for decisions of a general nature. There are exceptions. B. Cabinet and Cabinet Appeals: Canada (Attorney General) v. Inuit Tapirisat of Canada 1. Facts: Canadian radio-television and telecommunications commission (CRTC) had power to regulate utilities including Bell. Bell made application for rate increase, Inuit intervened to oppose, wanted it increased on condition for better service in Northern communities. Unfavorable decision, appealed to Governor in council - Cabinet. CRTC and Bell made submissions to Cabinet through dept of communication. Inuit inly give material for Bells submission. Cabinet recommended dismissal of appeal, followed. Unit made motion to Federal court that hearing should have been given, or that if it was, did not comply with natural justice. Govt applied for dismissal, granted by trial division. Appeal by Inuit succeeded. Govt appealed to Court. (Statute s. 664(1) National Transportation Act) 2. Issue: is there a duty to observe natural justice or at lease lesser duty of fairness, on Governor in council in dealing with parties such as respondents upon their submission of petition under s. 64(1) 3. Rule: After Nicholson & Martineau, duty doesnt depend on power involved as administrative or quasi-judicial, it is still necessary to examine closely the statutory provision in question in order to discern whether it makes the decision maker subject to any rules of procedural fairness. Duty to observe procedural fairness may not be express, but not implied in every case either; look at statute. 4. Reasoning: a) Parliament has not burdened executive in s.64(1) w/ any standards or guidelines in the exercise of its rate review function. b) In the past there were hearings before the Cabinet, for railway act, but the population of country was then a fraction of what it is today. To hold one today would be unwise and impractical. c) Under s. 64 Cabinet exercising power delegated by Parliament to determine tariffs, free to consult all sources of Parliament. No indication of a different interpretation. Governor in council can rescind order in his direction. Function applies to broad, quasilegislative orders of commission as well as inter party decisions - His discretion is complete, as long as w/n boundaries s. 64(1) d) Reasoning in Bates: general duty of fairness in quasi-judicial, admin, exec actions. But these considerations do not affect process of legislation, primary or delegated. Many affected by delegated legislation are never consulted in process of enacting legislation. No implied right to be consulted or make objections, or any principle on which courts can enjoin legislative process for those who werent consulted or considered. e) Nothing in s. 64(1) to justify principle of fairness. 5. Holding: Govt appeal allowed 6. Notes: Telecommunications Act now has procedural protections: time limits , requirements for written petitions, responses must be publicly filed, Cabinet now required to give reasons for its decisions. Australia case: FAI Insurance v. Winneke: FAI had legitimate expectation of renewal based on succession of prior applications (Governor in council rejected renewal w/o giving FAI opportunity to be heard, upon Ministers recommendation). GIC is under no obligation to comply with natural justice, but in this case, there is duty to comply b/c it would have been so if it was a statutory officer making the decision (renewal based on individual circumstances, not general policy;). Parliament probably did not intend full judicial hearing to be given, but written submissions. Governor in council can give adequate opportunity of presenting case to committee of members or Minister in function, who will make recommendation. 7. Exception to legislative functions/duty of fairness rule: Where decision is directed at specific individual and based on factors peculiar to individual, function in issue will not be classified as legislative despite the political nature of the decision maker. (duty of fairness is owed). C. By laws and rule-making: Homex Realty and Development Co. Ltd. v. Wyoming (Village): 1. Facts: Municipality of Homex quarrelled about obligation to instal services in subdivision by Homex. Without giving notice, M made bylaws designating plan deemed not to be registered plan of subdivision. Effect: lots would not be conveyed unless new plan registered or consents obtained from committee of adjustments of M, either way, M can impose new conditions. H application for review to quash bylaw, succeeded. M appealed, succeeded. H appealed to Court. (one law affected only H, other affected others and H) 2. Dissent a) Rules: Martineau rule - procedure required if rights interests, liberties affected. Determine procedural standard met by statutory body. Purely ministerial decision, on broad public policy grounds, affords individual no or little procedural protection. If function is judicial, will entail substantial procedural safeguards (personal, property rights). DO not look at whether actions legislative or quasi judicial, look at nature of the function and the facts of each case. b) Reasoning: before public body can limit or abrogate property rights of citizens, it must give individuals concerns an opportunity to be heard. Where statutory bodies seek to limit property rights, courts imply right to be heard unless express declaration to contrary. Where bylaws in question directly affect land/property of specified individuals, Courts imply common law right to be heard.

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(1) Right to procedural fairness no longer demands a priori classification of a process as judicial or quasi judicial. (2) 1) right to hearing springs from fact that it interferes with private property rights of this one owner. 2) presence of compelling public interest doesnt abrogate or diminish citizens right to procedural protection. Public interest best served by affording private interest full disclosure and fair opportunity to be heard. No reason why private interest should yield to public. (3) By law was not general application, limited rights of one individual, although protecting public from purchasing unserviced land and protecting rate payers from paying cost of servicing. c) Held: H entitled to some procedural safeguards, at a minimum, notice and opportunity to be heard. 3. Majority a a) Rule: in determining interpretation of s. 29(3) Planning Act, statute, nature of action, general circumstances, must be taken into account. b) Reasoning: statute does not require notice to affected landowners. Action taken by council not legislative, but quasi-judicial in character, so as to attract principle of notice and doctrine of audi alteram partem. ( Wandsworth). Statute requires filing of copy of by law with minister, registered with office, mailed to registered owner of lands affected. No inference that prior notice required. (1) Agreed with dissent that hearing requirement not met but considered argument about conduct and held that it succeeded. Depends on discretion of court administering remedies. c) Held: H not entitled to relief b/c inconsistent and evasive conduct of its principles. 4. Notes: where bylaw or subordinate legislation is general in character, passed by governor in council/minister/municipality/professional body regulatory agency/tribunal, procedural entitlements either diminished or eliminated. D.Policy making: 1. Vamderkloet c. Leeds & Grenville (County Board of Education) - case shows dilemma in which decisions are so general as not to pass the threshold as well as the variations in status among those claiming participatory rights in relation to policy decisions. a) Facts: declining enrollment, re-organize three elementary schools, up to grade two attend one school, older kids attend the others. WIth stat authority, minister issued guidelines governing closing of schools that required public consultation and participation. Board prepared policies for school closings, policy statement that required board to make alternatives known to community members before making decisions. group of ratepayers challenged decision to relocate students arguing board didnt comply with ministerial guidelines or its own policies, resolutions relocating students void. b) Reasoning: Court of Appeal decided, reallocation did not amount to closing, guidelines and policies did not apply. In response to ratepayers not having procedural fairness, held: principles of procedural fairness are not applicable to board of education who in good faith and w/n jdx assigned to it by legislature, resolves to reallocate student body within its school district. 2. Bezaire v. Windsor Roman Catholic Separate School Board: board had financial crisis, decided to close 9 schools, contrary to ministerial guidelines and its own policy of school closings, affects parents and students given no opportunity for input before decision (some after decision made). Division court decided that ministerial guidelines are not subordinate legislation, and considered parents argument that owed duty of fairness, court distinguished Vanderkloet, b/c no reallocation, but a closing which needs consultation of community. May seem like permissive or directory, rather than mandatory, but force of provisions supports that public consultation is a condition of a valid closing. a) Notes: Elliott v. Burin Peninsula School District: duty of procedural fairness, in school closing, although no ministerial policy or rules. Sunshine Coast Parents for French v. Sunshine Coast: in limiting french emersion program, school exercising legislative function (rejected legitimate expectations doctrine). 3. Canadian Association of Regulated Importers v. Canada (Attorney General): broad regulatory functions as ministerial or policy based has precluded industries and producers from claiming an entitlement to consultation before govt makes decisions w/ significant economic impacts. a) Reed J (1) Facts: Ministerial decision changing quota distribution system for important of hatching eggs and chicks, change significantly affected historic importers who claimed they had not been consulted. (2) Rule: Traditionally decision has been classified as being of a legislative nature if it sets out general rules which apply to a large number of people (3) Rule: minister exercising stat authority, decision general, but only for small segment, economic harm to others. Implied principle that parliament intended that stat powers be exercised in this case in accordance to admin law rules of fairness. Rules include notice to applicants and opportunity to comment on the. (4) Reasoning: dont have to find a right exists or application for judicial review, just demonstrate an interest, or legitimate expectation. (a) Rule in Schmidt v. Home Secretary: right to be heard before admin body depends on whether he has some rights/interests, or some legitimate expectation of which it would not be fair to deprive him w/o hearing what he has to say.

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(b) Here, had imported, established position in market, so had sufficient base for claim for review. (c) Not impractical to give notice opportunity to comment, all hatcheries and chick importers were known (39 and 45), small segment. Give general notice - newspaper ad, not individual. (d) Not useful to classify decision as policy in nature or legislative, will not necessarily immunize decisions from judicial review. Decision was not according ministerial residual discretionary authority. Decision was treated as setting down rules, not admin guidelines for internal admin use, applied as binding. No discretion left to official acting in ministers behalf to depart from quota. Effect was economic loss to applicants. (5) Held: importers had not been given sufficient procedural protections before changes madd. Entitled to old scheme until matter re-evaluated in light of submissions b) Linden JA (1) Rule: rules of natural justice not applicable to legislative or policy decisions. Also held that principles of natural justice are not applicable to setting of a quota policy although they may be to individual decisions respecting grants of quotas. (2) Reasoning: minister rather than board establishes quota, some benefited, some will lose out. But exercise is legislative or policy matter, in which courts do not interfere. Minister can but not required to give notice and opportunity to be heard. No public consultation procedures appears in legislative provision. Parliament could have put it if wanted it or intended it. c) Disposition: appeal allowed, application dismissed. E. Individualized decision making based on Exercise of Board Discretionary Powers: Idziak v. Canada (Minister of Justice): claim that minister had obligation of procedural fairness in deciding whether to surrender person to foreign power after deportation order. Function described as extreme legislative end of continuum of admin decision making, Cory J asserts not a clear dichotomy in courts mind between legislative decisions and decisions that have individuals as their target. 1. Accepted that minister had duty to act fairly, majority of course accepted relevant confidential memorandum from in house lawyer contained no new prejudicial info. (not enough for govt agency to assert broader policy considerations in defense to a particular procedural fairness argument) 2. Notes: Should individual interest be subservient to broader public and political interests? Courts must evaluate legitimacy and weight of claims against individual interest that is at stake, in determining whether there are any reasons of principle or utility for allowing interest to be trumped at procedural fairness level. F. Emergencies 1. R v. Randolph: court held that interim order withdrawing provision of mail services to an individual could be made without hearing when statutory basis for making decision was based on a belief that mails going to be used for criminal purposes. (court influenced by provision allowing after-the-event hearing) a) In most emergency cases, action in question is interim only and is open to reassessment in the context of a subsequent hearing. 2. R v. Randolph: entitlement to procedural protection based on reassessment of whether inmates should be continued in admin segregation. No question raised about entitlement of director to immediately place them in segregation upon their arrival from another penitentiary where they had been criminally charged with taking guard as hostage at knifepoint: held that because of emergency, decision to impose segregation in particular circumstances of the case, there should be no requirement of prior notice and opportunity to be heard before the decision. V. PROCEDURAL OBLIGATIONS TRIGGERS (CHARTER & BILL OF RIGHTS) A. The Charter and the Bill of Rights: Issues of General Applicability 1. Charter applies to laws of canada. Charter applies to govt of Can and prov legislatures. McKinney v University of Guelph: universities are not govt, and thus not charter doesnt apply to decisions. Does not apply to hospital boards. It does apply to provincial community colleges. Does not apply to corporations. Eldridge v BC: hospital board decision on whether to provide translation facility for hearing impaired patients subject to Charter since, they were implementing specific govt policy. Statutory authority that is not in general govt becomes subject to Charter when taking resp for govt prgrams. 2. Bill of rights corresponds generally to judicial review under federal courts act. B. The Bill of Rights: Specific Procedural Thresholds 1. Bill confined to areas where Bill provides guarantees and Charter does not. 2. Three dimensions that promise more extensive procedural protections than s. 7 Charter does. (Charter: Everyone right to life, liberty, security, not to be deprived thereof). a) Bill uses term individual or person, not everyone like Charter. b) Bill includes enjoyment of property in s. 1(a) c) Bill attaches procedural guarantees to the determination of rights and obligations in s.2(e). Also, nothing equivalent to s.1 Charter. 3. Effects of three dimensions:

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a) Court held that life liberty, security if person does not include corporations, not sure whether same applies to 2(e) Bill of rights, but no reason not to. But also held that in context of defense to criminal charge or in answer to civil claim can argue legislative provision is invalid b/c would violate s.7 in its application to an individual. b) Biggest difference is property rights in Bill s.1(a), not in Charter. Ontario Inc. v. Canada: car confiscated after rental vehicle smuggled alcohol. Under legislation, no guarantee that owner of vehicle (company that leased car) would receive notice of situation before vehicle forfeited to crown. Legislation contrary to Bill of rights 1(a). Forefeiture affected ownership rights, deniel of principles of fundamental justice b/c done without notice. c) Although Bill has no equivalent of Charter s.1, in Air Canada c. Canada held that in determining demands of principles of fundamental justice for purposes of 2(e) Bills, court should engage in s.1 style balancing d) Terms rights and obligations in s. 2(e) Bill no longer read narrowly after Singh v, Canada: three members held immigration members came within 2(e) when deciding upon convention refugee claim. (if he had statutory right to remain in Canada). Also, term embraces investigation and hearing of a complaint of discrimination under fed human rights legislation on basis that those proceedings involve determination whether respondent had breached his legal obligation not to discriminate against employees MacBain v. Lederman. 4. Whether ss. 1(a) and 2(e) of Bill could apply to legislative proceedings, or whether subject to threshold similar to common law procedural fairness, discussed in following case: 5. Authorson v. Canada (Attorney General): class of disabled veterans were to receive pensions and other state benefits from Crown, administered by department of veterans affairs. DVA failed to invest or pay interest until 1990. Parliament passed s. 5.1(4) Department of Veterans Affairs Act, not allowing anyone to sue for interest on money held or administered by Minister before1990 after Act in force. Veterans sued the crown for breach of fiduciary duty, argued that stat bar on right to sue was inoperative b/c breached rights under s.1(a) and 2(e) Bill of Rights. a) Issue: what process is guaranteed by Bill of rights when property rights are extinguished? b) Rule: Section 1(a) Bill of rights: recognizes right o individual to life, liberty, security of person enjoyment of property, right not to be deprived thereof except under due process of law c) Reasoning: Three types of due process argued - (1) Procedural rights in legislative enactment: no right to notice and hearing. Only procedure due is proposed legislation receive three readings in Senate, House, royal assent. Bill of rights guides interpretation of every law in Canada. Court interference with process is not interpretation of already enacted law. Due process protections cannot interfere with legislative branch (2) Procedural rights before application of statute to his individual circumstances: Bill of rights guarantees procedural due process - notice and some opportunity to contest govt deprivation of property rights only in the context of adjudication of persons rights and obligations before court or tribunal. No such application took place here, so no further procedure due. No adjudicative procedure needed for non discretionary application of a law to incontestable facts. (3) Substantive protections against govt expropriation of his property: Bill does protect against expropriation of property by passage of unambiguous legislation. Bill only protects rights that existed at the time of its passage in 1960. At that time, it was undisputed, and today, Parliament had right to expropriate property if it made its intention clear, like it did in the Act in question. No claim for interest, since he would have had no substantive right against a clear and ambiguous expropriation in 1960, Bill can offer no such protection today. d) Rule: Section 2(e) Bill of rights: guarantees that no law shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with principles of fundamental justice for determination of his rights and obligations. e) Reasoning: 2(e) only applies to proceedings before court or administrative body that determines individual rights and obligations (arbitrary detention & cruel unusual punishment, arrest & right to council and right to habeas corpus, rights against self incrimination, presumption of innocence, impartial tribunal, reasonable bali, interpreter. Legal rights applicable in context of or prior to a hearing before court or tribunal. 2e does not impose on Parliament duty to provide hearing before enactment of legislation. f) Held: appeal allowed. g) Notes: Bill is of no assistance in decision-making contexts that fall on legislative end of legislative/administrative threshold for application of common law procedural fairness. (what about below common law threshold - investigative procedures? C. Section 7 of the Charter: Specific Procedural Thresholds : impact of this section on admin process was first considered in case below. 1. Singh v. Canada: appellants were convention refugee claimants. Minister, advice from Committee determined not convention refugees. Applied to board for redetermination. Not referred to oral hearing b/c board determined on strength of applications that no reasonable grounds for believing they could establish their claims at a hearing. Appellants applied to Fed Ct App alleging stat scheme infringed s. 7 charter. Application failed.

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a) Courts analysis (1) Rights of Convention Refugees under Immigration Act 1976 (a) Rule in Act: convention refugee has right to determination from minister base on principles as to whether a permit should issue entitling him to enter and remain in Canada (4(2) and 37); right not to be returned to a country where his life or freedom would be threatened (55) and the right to appeal a removal order or a deportation order made against him (72(2)(a), 72(2)(b), 72(3)) (b) Conclusion: Person who is convention refugee who does not have a safe haven else where is entitled to rely on country willingness to live up to obligations by signing UN Convention relating to status of refugees. (2) Procedures for determination of convention refugee status: (a) Convention refugee: person who has fear of persecution for reasons of race, religion, nationality, membership of social or political opinion, outside of country, or has no nationality and outside of formal residence, unable to return to country. (b) Rules for procedures: Procedures for determination of convention refugee and for redetermination by Board is set out in ss. 45-48, and 70-71. Difficult to characterize procedure as hearing; it is non adversarial since only entitled to be represented by counsel. i) Sect 45(4) Act does not give opportunity to be heard other than through claim and transcript of examination under oath. No opportunity to comment on advice by committee to minister. Both obligated to act fairly in carrying out duties and cannot make arbitrary decisions, treat cases equally. Courts cannot import duty of fairness procedural constraints on committees operation which are incompatible with decision making scheme set up by parliament. ii) Can apply for a redetermination if rejected within 15 days to appeal Board under s. 70(1), can also under 70(2) submit copy of transcript of exam under oath done before, and all other facts and evidence. 70(d) set out other declarations relevant. If application proceeds, must be quasi judicial, which full natural justice applies. Can only allow redeterminations if its the opinion of the board that there are reasonable grounds for success. (c) Reasoning: No basis for stating that procedures set out above were not followed. If appellants are to succeed, must be on basis that Charter requires Court to override Parliaments decision to exclude the kind of procedural fairness sought by appellants. (3) Entitlement to s.7 Charter protection: everyone in sect 7 applies to every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law. (a) Issue: whether deprivation of Rights of Convention Refugees under Immigration Act 1976 constitute deprivation of the right to life, liberty, and security of the person w/n meaning of s. 7 Charter. (b) Single right theory: deprivation of one element (life, liberty, security) will constitute deprivation of right under s.7 (dont need all three elements). (c) Courts reasoning: depriving convention refugee of save avenues when he has fear of persecution will deny him of his life, liberty, and security if returned to home land. Security of the person, even if defined narrowly, includes right not to be removed to a county where his life or freedom would be threatened. (d) Conclusion: rights which appellants are seeking to assert are within protection of s.7 Charter. Must determine if procedures for determination of refugee status in Act are in accordance with principles of fundamental justice. (4) Is fundamental justice denied by procedures for determination of convention refugee status set out in act? (a) Rule of procedural fairness: tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give him the opportunity to adequately state his case. (b) Reasoning: If life, liberty, and security relates to matters such as death, physical liberty, punishment, procedural fairness would require oral hearing, but written submissions are adequate substitute in some circumstances. If serious issue of credibility, would need oral hearing. i) Issue here is; opportunity to state his case and know the case he has to meet. ii) Proceedings before Board are quasi-judicial and board not entitled to rely on world knowledge for determination. iii) Refugee claimant should be entitled to discovery of Ministers case prior to hearing. If board only allows cases which shows probability of success, it is difficult to see how refugee can make successful claim if he has no access to minister case that he has to meet? (c) Conclusion: procedures in Act do not accord refugee claimants fundamental justice and thus incompatible with s.7 Charter. (next must see if shortcomings are saved under s. 1 reasonable limits justified under free/democratic society) (5) Can procedures be saved under s.1 of Charter (a) Issue: whether it is reasonable to deprive appellants of the right to life, liberty, and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.

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(b) Reasoning: basis of justification for limiting rights under s.1 must be more compelling than those advanced. Limitations on rights are not reasonable. Have not shown that cost of compliance would be prohibitive as to construe justification under s. 1 b)Concurrence (1) Issue: whether procedures followed in these cases are in conflict with Canadian Bill of rights s. 2(e) (2) Rules: Charter sect 26 - guarantee in this charter of certain rights and freedoms shall not be construed as denying existence of any other rights or freedoms that exist in Canada. (3) Reasoning: Bill of rights retains in force and effect. 2(e) is more broad than 1. 2(e) protects fair hearing of ones rights and obligations. (a) Process of determining claims involves determination of rights and obligations under 2(e) of Bill of Rights - right to fair hearing in accordance with principles of fundamental justice. (b) Whether case at bar, appellants were afforded fair hearing in accordance with fundamental justice i) They were denied oral haring at every stage - were not heard by committee, minister, or board. (c) Rule: Important factors in determining procedural content is nature of legal rights at issue and severity of the consequences to the individuals concerned. c) Held: appeals allowed, decisions of appeal board set aside, applications for determination of refugee status remanded to board. d) Notes: effect is that mandating oral hearing at some point in process by someone empowered to actually render decision, made system of claims expensive and unworkable. Decision extended to extradition proceedings, including fugitive criminals who arrived illegally, any time there is deprivation of life, liberty, security of person at hands of foreign govt. e) Two qualifications from Singh: 1) s/ 7 does not always require an oral hearing, 2) in addition to balancing interests that must occur in making determinations as to precise procedures that principles of fundamental justice mandate, there is room for s.1 to be invoked in justification of s. 7 violations. 2. Chiarelli v. Canada: permanent resident may be deported b/c committed a serious criminal offense which renders him inadmissible under Immigration Act. Solicitor general and Minister made joint report to Security Intelligence Review Committee, that if he stays will be involved in organized crim. SIRC would investigate report. If upheld, Governor in council would direct Minister to issue certificate precluding from C from appealing his deportation order. C challenged constitutionality of deportation: Issue: rules of procedure adopted by SIRC which allowed committee to exclude him and counsel when govt witneses giving evidence and to limit ability to cross examine witnesses, violated s. 7 rights a) Reasoning: in assessing whether procedure complied with fundamental justice, necessary to balance competing interests of state and individual. He had been provided with documents summarizing info received, and in camera evidence, this gave sufficient info to know substance of allegations against him and was able to respond. Committee had indicated he can cross examine RCMP witnesses who testified in camera. He had procedural opportunities available to him. b) Held: If there was deprivation of liberty or security, it was in accordance with principles of fundamental justice (competing interests) c) Notes: whether appropriate in s. 7 claims for courts to engage in balancing of state and individual interests at stage of determining fundamental justice content, or should that be done in justification of s.1 analysis? -- dealt with in next case: 3. Charkaoui v. Canada (Citizenship and Immigration): 3 individuals detained because of security certificates, C was permanent resident. IRPA allowed review by fed ct judge, at ministers request done in ex parte, cannot show person or counsel material, especially sensitive material b/c could compromise national security. Court decision final and cannot be appealed. Next procedure could subject them to being removed from Can and face risk of torture in other country. Challenged security certificates procedure as reasonable violated s.7 Charter b/c life, liberty threatened. Court defined content of fundamental justice in national security contexts. a) Issue: whether states interference with life, liberty, security conformed w/ principles of fundamental justice. b)Security considerations affect s. 7 analysis (1) Rules: sect 7 life, liberty and security of person must conform to principles of fundamental just, this includes procedural fairness. This section does not permit free standing inquiry into whether legislative measures strikes balance between individual and state. The next inquiry shifts to s. 1. when govt has chance to establish flawed process justified, having regard of public interest. (2) Precedent rules: the greater the effect on the life of person by decision, the greater the need for procedural protections to meet common law duty of fairness and s. 7. Factual situations that are closer to criminal proceedings will merit greater vigilance by courts (3) Reasoning: security concerns cannot be used to excuse procedures that do not conform to fundamental justice at s. 7 analysis. adequate substitutes can be found. Cannot reduce principles where they cease to provide due process. Must have meaningful and substantial protection. c) Relevant principles of fundamental justice

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Rule: before state can detain people for significant periods of time, it must accord them a fair judicial process. (a) Right to hearing (b) Hearing be before independent and impartial magistrate (c) Decision by magistrate on facts and the law (d) Right to know the case put against one (e) Right to answer that case (2) Reasoning/analysis to test above: two levels -1) executive level has no hearing where they decide on certificate. 2) judicial level has a hearing. But fails to meet the other 4 requirements. (a)Case to meet: i) Affected person be informed of case against him and be permitted to respond to that case. Question- whether procedure provide adequate opportunity for affected person to state his case and know the case he has to meet. Rule in Suresh person facing deportation must not only be informed of case to meet but also be given an opportunity to challenge the information of the Minister where issues to validity arise. ii) Right to know is not absolute, may be ex parte or in camera. National security considerations can limit extent of disclosure of information to affected individual. Can also have substitutes for full disclosures. iii) In cases where the above occurred, intrusion on liberty was less serious than here (detention) Must have substantial compliance with principle - opportunity to know case to meet, and opportunity to meet the case. Either give the info needed or have a substantial substitute. In this case, there was neither. iv) Issue here is not whether govt struck a balance between need for security and individual liberty - that is s.1 here must have basic requirement of appropriate context. Judge review by it self is not enough: doesnt know anything but what ministers put in front, cannot identify errors, has to decide based on unreliable information. v) Cannot meet the case you dont know. Principle is gutted. (b) Conclusion: IRPA uses judicial review as a mechanism to meet procedural fairness. IRPA procedure deprives life, liberty, security of person under s.7 d)Limit justified under s.1 of Charter? (1) Rule: state can limit rights if justified under free and democratic society (under exceptional circumstances, such as, natural disasters, war, epidemics) Difficult to justify violation of s. 7 under this/ (2) Oakes test: requires a pressing and substantial objective and proportional means. Finding of proportionality requires: (a) Means rationally connected to objective (b) Minimum impairment of rights, and (c) Proportionality between effects of infringement and importance of objective (3) Analysis: protection of national security is a pressing and substantial objective. 1) Provisions regarding non disclosure at certificate hearings are rationally connected to objective. 2) but question remains does it minimally impair rights of non citizens (detention and deportation) e) Conclusion: provisions unconstitutional, suspended for one year. ( Parliament appointed special advocate who could challenge govt claims to confidentiality of evidence, reliability, sufficiency, weight, make submissions, cross examine, etc) D.Section 7 of the Charter: life, liberty, and security of the person 1. Wilson v. British Columbia (medical services commission): Commissions scheme challenged in Mia, found that violated ss. 6 and 7 of Charter. - rights to work or practice are fundamental so must be protected even if they include economic component. 2 years another challenge after legislation passed with regulations of previous scheme. a) Issue: whether liberty in s. 7 is broad enough to encompass the opportunity of doctor to practice medicine medicine in Bc w/o restraint as to place time, or purpose, even though there is incidental economic component to the right being asserted. b) Rule: liberty w/n s. 7 is not confined to mere freedom from bodily restraint. Does not extent to protect property or pure economic rights. It may embrace individual freedom of movement, including right to choose occupation where to pursue it, subject to right of state to impose, in accordance w/ principles of fundamental justice, legitimate and reasonable restrictions on activities of individual. c) Analysis/reasoning (1) Pure economic rights: economic component of freedom which doctors seek is right to be paid by or on behalf of patient for services rendered. Problem is opportunity to pursue profession, and freedom of mobility in practice, can be denied by refusing to allow patients right to have doc reimbursed under plan. Rights being asserted are personal rights affecting freedom and quality of life of docs. Effect is personal, and has far reaching implications. (2) Economic rights cases: (business, professional occupational activity - hold that s.7 does not guarantee free standing right to work): cannot describe right of corporation or purely economic rights of individual. Still, does not detract from Mia holding. (1)

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(3) Regulatory cases: standards of admission, mandatory insurance for protection of public, standards of practice and of behavior will NOT constitute infringement of s.7. These do not detract from conclusion in Mia. (4) Right to work cases: liberty is right to transact in business. Right to work has little to do w/ important personal right of otherwise qualified professional people who have opportunity to attempt to build practice in their province and in chosen community. Can be deprived of this in accordance with fundamental justice. Right can be overriden by societal concerns under s. 1 But govt hasnt asserted any. (a) Appellants are not pursuing mere economic interest. Enactments go beyond mere economic concerns or regulation. Are deprived of practicing their profession for which they are qualified. (5) Mobility: component of liberty: confined to s.6, but it is a fundamental right and right to liberty bears directly on right of free movement. Mobility affects life and liberty and security of person, liberty must touch right of free movement. Thus, geographic restrictions imposed on right to practice in BC constitutes violation of right to liberty under s. 7 unless right has been removed in accordance with principles of fundamental justice or unless deprivation can be demonstrably justified under s.1 Charter (6) Principles of fundamental justice: procedural - lack of duty to make decisions about applications, lack of hearing, lac k of obligation to give reasons, lack of any way of knowing what current state of need for docs. Scheme is procedurally flawed. Based on application of vague and uncertain criteria, uncontrolled discretion, substantial scope for arbitrary conduct. Substantively - discriminations against docs both new and established in and out of prov denied fundamental justice on substantive grounds d) Held: Appeal allowed. e) Notes: (1) Reference re Ss. 193 and 195(1)(c) Criminal Code (Prostitution Reference): Charter does not concern itself with economic rights, except s.6 (2)(b) (right to earn livelihood in any province). s 7 is implicated when state restricts individuals physical liberty in any circumstance, security of person by interfering with or removing them control over their physical or mental integrity; state directly or through agents restricts certain privileges or liberties by using the threat of punishment in cases of non compliance. (this influenced cases involving s.7 that did not apply s to general accounts or right to practice not protected) (2) New Brunswick (minister of health and community service) v. G(J)(J.G.): Facts: minister sought judicial order granting minister custody of appellants 3 children for additional 6 months. Issue whether involuntary subjection to admin process in general generates life liberty and security of the person claim. -- Did relieving parent of custody restrict parents right to security? (a) Rule: security of person protects physical and psychological integrity of person - this extends to child custody too not just criminal law. For psychological integrity - state action must be serious and effect psychological integrity. Assess it objectively, view impact of a person with reasonable sensibility. Does not have to rise to level or nervous shock or illness, but greater than ordinary stress or anxiety. (b) Reasoning: removing child has serious interference with psychological integrity. Stigma and distress. State inference into private and intimate sphere (c) Held: some drastic admin proceedings may affect individuals life, liberty, security. (d) Minority: also found custody triggered s. 7 liberty interest b/c cannot make decisions on childs behalf and guide upbringing. 2. Blencoe v. British Columbia (human rights commission): minister in govt of BC accused of sexual harassment, removed by cabinet and dismissed. 2 complaints lodged against him. Hearing 30 months later. Media attention, didnt stand to be re-elected following year in 1996. Judicial proceedings to have complaints stayed, claimed that commission lost jdx b/c of unreasonable delay in processing the complaints, caused prejudice to him and family that amounted to abuse of process and denial of natural justice. Four issues/analysis: a) Does charter apply to actions of BC human rights commission? (1) Being independent of govt (not controlled by it or part of it) does not mean charter does not apply. Bodies exercising statutory authority are bound by Charter, if w/n scope of authority. Commission created by statute and actions pursuant to authority. Abides by human rights code. Govt program of redress. Admin proceedings before it comply with Charter. Charter applies. b)Have respondents s.7 rights to liberty and security of person been violated by state caused delay in proceedings? (1) Applicability of s. 7 outside criminal context: must look at meaning of liberty and security of the person. (2) Liberty Interest: state has not prevented him in making fundamental personal choices, interests protected do not fall under s. 7 liberty interests

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(3) Security of the person: rule for criminal context - state interference with bodily integrity and serious state imposed psychological stress, constitutes breach of individuals security of the person. Security protects physical and psychological integrity of individual. Psychological integrity engages s 7 when serious state imposed psychological stress. 2 components: (a) Psychological harm must be state imposed (harm results from actions of state: [ministers harm result of state]: Must be casual connection between state caused delay and prejudice suffered by the respondent for s. 7: there is a nexus, sigma attached to complaints, public profile lost, vulnerable to media attention, family hardship. (b) Psychological prejudice must be serious [quality of interference]: no right to be free from stigma associated with human rights complaint under s. 7 i) Dignity: has never been recognized under s.7 but rather viewed as finding expression in rights of equality, privacy, protection from state compulsion, vs. independent right. Not underlying right, but underlying value. His dignity stigma connected to reputation, but reputation is also not an independent Charter right. Respect for right is also underlying value. Dignity and stigma are not self standing rights, neither is freedom from stigma. ii) State interference with psychological integrity: must be serious and profound. Would include right to make decisions free from state interference, or prospect of losing guardianship of children, would not easily include stress, anxiety, stigma rom admin or civil proceedings. State has not interfered w/ respondents and his familys ability to make essential life choices. iii) Importing the notion of stigma from criminal law context: ss. 11(b) charter allows person charged with crime to be tried w/n reasonable time, this cannot be imported into s. 7. no analogous provision for admin or civil proceedings, nor constitutional right outside criminal context to be tried w/n reasonable time. Human rights commission duty not to punish but investigate if allegations are true. Some stigma attached but do not rise to level above. Thus, no right to protected against sigma under s. 7 iv) Conclusion on Liberty and Security of the Person: stigma, stress and anxiety did not deprive him of life, liberty, and security of person. Dignity and reputation underline charter rights and are not stand alone rights that trigger s.7 c) If s. 7 rights were not engaged, or if states actions were in accordance with principles of fundamental justice, was respondent entitled to remedy pursuant to administrative law principles where the delay did not interfere with right to fair hearing? (1) Issue: whether delay could amount to denial of natural justice even where the respondents ability to have a fair hearing has not ben compromised. (2) Prejudice to the fairness of the hearing: duty of fairness includes right to fair hearing and undue delay in processing of an administrative proceeding that impairs the fairness of the hearing can be remedied. Delay was not such that it would necessary result in a hearing that lacks the essential elements of fairness. Right to fair hearing has not been jeopardized. (3) Other forms of justice: whether denial of natural justice or abuse of process when respondent has not been prejudiced in an evidentiary sense. Unacceptable delay may amount to abuse of process even when fairness of hearing not compromised. Where delay directly caused significant harm or attached stigma to reputation, such prejudice may constitute abuse of process. Where there is no prejudice to hearing, delay must be clearly unacceptable and have directly caused significant prejudice to amount to an abuse of process. (4) Abuse of process: common law principle invoked to stay proceedings where to allow them to continue would be oppressive. To have this must find damage to public interest in fairness of admin process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. (5) Delay unreasonable: to have abuse of process delay must be unreasonable to point as to taint proceedings. For delay to be inordinate depends on nature of case, facts and issues, purpose and nature of proceedings, whether respondent contributed to delay or waived delay and other circumstances. Here, minister contributed to delay, didnt respond for months to allegations. Commission followed same procedure it does for all complaints, to protect respondent make sure claims are not fake, investigate, and go forward. Avg 27 months to solve a complaint. Nothing more than time required. Delay of 5 months was not so inordinate to cause abuse of process, did not offend communitys sense of decency and fairness. And must be more than delay, must be delay causing prejudice to magnitude that public sense of decency and fairness is offended. Prejudice to him was not result of delay d) If entitled to Charter or admin law remedy, was stay of proceedings an appropriate remedy in circumstances of case? e) Conclusion: Appeal allowed, tribunal should proceed with hearing. But because of commissionss lack of diligence, costs to minister, and other two females who complained against him.

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VI.

CONTENT OF PROCEDURAL OBLIGATIONS (RIGHT TO BE HEARD) A. Baker v. Canada: (ch.2 The Role of Judicial Review) 1. Statutory provisions: judicial review to ft ct nonly commenced with leave w/ judge of fed ct trial. a) On application for judicial review, for appeal to fed ct app can me made if at trial there was a serious question of general importance involved and stated that question. b) Governor in council can authorize minister to exempt for compassionate and humanitarian grounds. Minister is also authorized. 2. Issues: a) What is legal effect of state question under s. 83(1) Immigration Act on scope of appellate review b) Where principles of procedural fairness violated (1) Were the participatory rights accorded consistent with duty of procedural fairness (2) Did failure of officer to provide his own reasons violate principles of procedural fairness (3) Was there a reasonable apprehension of bias in making of decision c) Was discretion improperly exercised b/c of apporach taken to the interests of Bakers children? (general importance issue in trial) 3. Rules and Analysis: a) Stated Questions under s. 83(1) Immigration Act: If question of general importance has been certified this allows an appeal which would not otherwise be permitted, but it does not confine court of app or this court to answering the state question or issues directly related to it. All issues raised by the appeal may therefore be considered. b) Statutory scheme and nature of decision: general rule is that applications for permanent residence are made outside Canada, exception is admission for existence of compassionate and humanitarian grounds. made by minister, but really in his name through immigration officers. Applies to cases like this where person already in canada and established, required to leave and has kids. Usually two criteria that may lead positive decisions under 114(2) - 1) public policy, 2) compassionate and humanitarian grounds. c) Procedural Fairness: Rule: the fact that decision is administrative and affects rights privileges or interests of an individual is sufficient to trigger the application of the duty of fairness. Underlying principle is that should have opportunity to present case fully and fairly, in fair impartial open process, appropriate to statutory, institutional, and social context of decision. (1) Factors affecting content of duty of fairness: Rule: concept of procedural fairness is eminently variable and its content is to be considered in order to determine the content of the duty of procedural fairness. Factors relevant in determining procedural fairness: (these factors are not exhaustive) (a) Nature of the decision being made and the process followed in making it. (the more process provided for, function of tribunal, nature of decision making body, and the determinations must be made to reach decision that resembles judicial decision, the more likely procedural protections closer to trial model will be required by duty of fairness. (b) Nature of statutory scheme and the terms of the statute pursuant to which body operates (greater protection if appeal procedure not provided in statute). (c) Importance of the decision to the individual(s) affected. (the more important to the lives of those affected, the greater impact, the more stringent the procedural protections will be). (d) Legitimate expectations of person alleging decisions may determine what procedures duty of fairness requires in given circumstances. Legitimate expectation do not create substantive rights. If LE that certain procedure will be followed, this procedure will be required by duty of fairness, as promised. If expected certain result reached, fairness requires more procedural rights than would be otherwise accorded. Based on circumstances, take into account promise or regular practices of admin decision makers, and that it would be unfair to back track without proc rights. (e) Account and respect for choices of procedures made by agency itself, particularly when statute leave ability to choose procedures or when agency has expertise in determining what procedures are appropriate. (2) Legitimate Expectations: The convention for childrens rights is not equivalent to govt representation about how H and C applications will be decided, nor doe sit suggest rights beyond participatory rights. No legitimate expectation affecting content of duty of fairness, 4th factor does not affect analysis. (3) Participatory rights: Rule: Underlying principle is that should have opportunity to present case fully and fairly, in fair impartial open process, appropriate to statutory, institutional, and social context of decision. (a) Issue - whether failure to accord an oral hearing and give notice to Baker or kids was inconsistent with participatory rights required by duty of fairness in these circumstances. (analyze all 5 factors above - decision different than judicial b/c discretion, no appeal but judicial review allowed, affects all their lives, statute gives flexibility do not conduct interviews) (b) Held: duty of fairness owed required full and fair consideration of issues and those whose interests were at stake, in a way that must have a meaningful opportunity to present the various types of evidence relevant to case, and have it fully

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and fairly considered. Oral hearing not required, written is good, lack of oral did NOTconstitute violation of procedural fairness. (4) The Provision of Reasons: Rule: duty of procedural fairness will require written explanation in some circumstances where decision has important significance for individual, when there is statutory right of appeal, or in other circumstances, some form of reasons should be required. Common law is headed that way. (such as H & C cases, where persons affected). Held: Here, note by subordinate officer written, requirement met for reasons for decision. (flexible and easy to meet) (5) Reasonable Apprehension of Bias: Rule: decisions be made free from reasonable apprehension of bias. Test: what an informed person viewing the matter realistically and practically, having thought the matter through - conclude? Would he think that more likely than not the decision maker, consciously or unconsciously ,decide fairly? Rule: standards for reasonable apprehension of bias vary depending on context and type of function performed by admin decision maker involved. (a) Reasoning: duty to act fairly that does give give rise to bias applies to all immigration officers, even subordinate, b/c play role in decision making. Central role, if made not impartially, then decision not impartial either. Should be sensitive to cultures, races, continents, b/c of canadian histories, families migrating here. (b) Held: well informed member of community would perceive bias in comments, show no open mind and stereotype and links between illness and welfare. Conclusions drawn not base don evidence but her single mother status, lots of kids, illness. Conclude, there was a reasonable apprehension of bias. d) Review of the Exercise of the Ministers Discretion: must consider issue in serious question of general importance certified by fed trial judge. Court will consider whether as a substantive matter, H and C decision was improperly made in this case. (1) The Approach to Review of Discretionary Decision Making: statute gives discretion to minister, language indicates intention to leave considerable choice to minister on question whether to grant a H and C application B. The Level and Choice of Procedures: ch.4 1. Nicholson: Court expanded reach of common law procedural rules from decision makers that exercised judicial or quasi judicial functions to administrative decisions too. Level or content of procedural fairness required depends on context of specific decision made. Procedural obligations between trial type (in person hearing, full disclosure rights) appropriate for decision makers that exercise judicial functions. Informal procedures (written notice, opportunity to comment). 2. Baker: lays out the content of procedural fairness. 5 factors: a) Nature of the decision being made and the process followed in making it: decisions that involve adjudication between parties, directly or indirectly, affect their rights and obligations, or require decision maker to apply substantive rules to individual cases will require more extensive procedural protections than regulatory decisions bearing on implementation of social or economic policy. b) Nature of statutory scheme and the terms of the statute pursuant to which body operates: where no appeal procedure is provided within statute, or when decision is determinative of issue and further requests may not be be submitted, greater procedural protections will be owed c) Importance of the decision to the individual(s) affected: the more important the decision is to the lives of it affects, the higher the level of procedural protections mandated by common law procedural fairness. d) Legitimate expectations of person challenging decision: these may be raised by decision makers representations about available procedures or substantive results. If there is LE that certain procedure will be followed, procedure will be required by procedural fairness. If LE a certain result in his case, fairness may require more extensive procedural rights than would be accorded. e) Choices of procedure made by the agency itself: this is situation-sensitive. Must respect procedure choices, when statute gives ability to chose own procedures, or when agency has expertise in determining what procedures are appropriate in circumstances. Some factors suggest strict requirements, some suggest relaxed requirements of procedure. Circumstances require full and fair consideration of issues, important interests affected, meaningful opportunity to present evidence, have it fully and fairly considered. f) Baker factors have become analysis for standard of impartiality (reasonable apprehension of bias), and for content of fundamental justice in decisions that engage in life, liberty, security of persons., cit. 3. Suresh v. Canada (Minister of Citizenship and Immigration): a) Issue: determine the procedural protections to which individual is entitled to under s.7 of the Charter b)Reasoning: (1) Court used Bakers 5 factors b/c fundamental justice demanded compliance with common law procedural fairness. Principles of fundamental justice in s.7 have the same underlying principles of duty of fairness. (2) Section 7 protects both procedural and substantive rights, as far as procedural goes, test in Baker is sufficient. Use Baker to determine whether common law duty of fairness met and whether safeguards provided satisfy demands of s.7

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(a) Nature of decision neither favors strong or weak procedural safeguards (b) No provision of hearing, written or oral reasons, no right to appeal (c) Great affect on life, so heightened procedural requirements to meet common law duty of fairness and s.7 (d) Ministers deference must be reconciled with elevated level of procedural protection mandated by serious situation of refugees who will face human rights violations if deported, which Canada can neither constitutionally nor under international treaty obligations by complicit. (3) Content of procedures: Procedural requirements under s.7 do not extend to requiring full oral hearing. Must be informed of case to meet, material ministers decision is based on must be provided (memoranda, recommendations), opportunity to challenge or respond to the case (provide evidence of showing presence not detrimental, torture in country if goes). Written submissions be accepted, considered (a) Evaluate assurances of foreign state of not giving death penalty, look at human rights records of it, record of complying with assurances esp if doubt. Individual must establish fear of persecution. (b) Written reasons for ministers decision: rationally provide why he will not be subject torture, emanate person making decision (c) Refugee must show risk of torture prima facie, so these factors will not apply in every case. (4) Not justified under s. 1 - no clear link either between lack of safeguards, country. C.Specific Content Issues 1. Pre-hearing issues a) Notice: (1) Four types of problems: 1) problems about form, 2) problems about the manner of service, 3) problems about time, and 4) problems about the content (2) Two types of notice: 1) written, 2) oral. Others include: personal service (notice handed to or told to the party), public notice (decisions affecting large numbers - school district residents), (3) Re Central Ontario Coalition and Ontario Hydro: notice requirements about location of electrical transmission lines. Proposed, and give to board. Gave notice through public notice and personal service in some municipality, lines described merely as southwestern Ontario, no maps included. People living along one path sought review that phrase southwestern Ontario did not denote alternative route,and succeeded. Notice was defective b/c no reasonable person would understand what southwestern Ontario meant and cannot be said to include area where undertaking to be located. Those that were affected would not know or who had interests in that area. Although it tried made effort to publicize, it seems like notice was mere formality b/c inadequate notice. (4) Notice by mail creates possibility that it will not be received in time or not received at all. ( Re City of Winnipeg, and Torchinsky) (5) Notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate and to prepare. Length of time needed will depend on nature of interests and issues. Notice must also give enough information about issues to enable party to prepare to respond (should advice of having counsel, evidence, consequences of adverse findings) (Rv. Ontario Racing Commission, ex parte Taylor) (6) Notice must also not be misleading or inadequate. (R.v.Chester) (7) Canada (Attorney general) v. Canada (Commission of inquiry on the Blood System in Canada Krever Commission:) When should notice be given, what are the limits on its contents and wording. (a) Facts: govt of canada appointed commissioner to review and report blood system in canada (b/c a lot of hiv and hepatitis spread). Nov 3/92 announcement of his appointment and description of mandate published in newspapers across country, provided interested parties to apply for standing before inquiry and for funding. Commissioner adopted rules of procedure. Held public hearings for 2 years, purpose was to find what contaminated blood system in 1980s. Oct 95 delivered memo to all parties inviting them to inform Commission of findings of misconduct., and that Commissioner will give notice to any person whom he intends to make a finding of misconduct. Dec 21 45 confidential notices naming 95, each containing 1-100 allegations delivered. Recipients had right to respond as to whether commissioner ought to reach conclusions until Jan 10/96. (b) Commissioners Report: can make findings of fact, and not define specific offenses, cannot make evaluations, public inquiries are not done to find criminal or civil liability. Findings of fact and conclusions cannot find criminal/civil liability. (c) Procedural fairness: there must be proc fairness in hearings of commission b/c findings may damage reputation, and for some that is a highly prized attribute. (d) Fairness in notices: commission is required to give notice to parties of potential findings of misconduct. Issued in confidence, to allow parties prepare or respond to possible findings against them. Should as detailed as possible, so

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assistance is greater. No harm to reputation unless party itself makes the notice public, then its his own doing. Even if notice appears to exceed jdx of commissioner, that does not mean final findings will. Assume jdx met. (e) Summary of Commission Rules on on pg. 291. (f) Issue: whether commissioner exceeded his jdx in the notices delivered to the appellants. (g) Applications of above principles i) All areas were w/n commissioners jdx to investigate, mandate of inquiry was broad which requires to review conduct and practices of all persons and institutions responsible for blood system. Application for this was premature b/c findings were not released yet. ii) Even if not premature, notices were not objectionable, merely said that there was a possibility of findings of fact that might amount to misconduct. Just wanted to find out what happened so can prevent it in future, not to make legal determinations. iii) Notices were not out of jdx, and did not imply legal liability, civil liability. Words used as failure does not mean breach of civil or criminal conduct. (h) Issue: if commissioner had jdx, did he lose it by failing to provide adequate procedural protections or by timing of the release of the notices (i) Analysis: i) Procedural protections: offered to parties in the inquiry and to individual witnesses were extensive and exemplary. Commissioner with full consent of parties, offered commendably wide range of protections (made assurances that he had no intent of making findings suggested in notices as well). Procedures were adopted on consensual basis after meeting with all parties to determine what protections would be required. All were fair. ii) Timing of notices: (argued that given on last day, no time to cross examine and present evidence). There is no statutory requirement that commissioner give notice as soon as h foresees possibility of allegation of misconduct. No need to present individuals with case to meet notice, or charges against them like in criminal settings. Although notice should be given asap, its unreasonable to insist that notice of misconduct must always be given early. So long as adequate time is given to recipients of notice to allow them to call evidence and make submissions, late delivery of notices will not constitute unfair procedures. (1) Timing will depend on circumstances. If evidence is extensive, complex, impossible to give notices before end of hearings. if straight forward, possible to give notices of misconduct early in process. (2) Were given adequate opportunity to respond to notices and adduce additional evidence. (j) Held: appeal dismissed. 2. Discovery: Issue: whether notice entitlements in the admin process involve a claim to pre-hearing discovery of all relevant information in the possession of the other side or the prosecution. a) Argued that principle of R.v.Stinchchombe did not add anything new to admin law. Full disclosure already part of duty of fairness as set out in Nicholson, Stinchchombe emphasizes degree of disclosure - one must know the case one must meet. b) Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Associations: involved order for production of documents and other info made by Canada labor relations board at investigative, pre hearing stage, of an application made by Canadian air line pilots association for a single employer declaration. When Canadian failed to produce info voluntarily, the board attempted to secure it relying on ss. 118(a) and 121 of Canada Labor Code. (1) Reasoning: board had no inherent or incidental powers, only those conferred by statute. Provisions relied on did not authorize discovery orders outside context of formal hearings. 118 limited to order for production of documents in context of witness being summoned to give evidence on oath (not investigative or administrative stage). Claim to exercise such power will have to be rooted firmly in statute and that there is not likely to be any presumption drawn as to the existence of such authority in the absence of express authority to make such orders. c) CIBA-Geigy Ltd v. Canada (Patented Medicine Prices Review Board (1) Issue: extent of disclosure required by patented medical review board. (2) Facts: board scheduled hearing to determine what drug habitrol (marketed by appellant) is sold at excessive price. Consequence can be s. 83 order for price reduction, payment to her majesty, and offset of up to twice amount of est excess revenues. (3) Reasoning: entitled to know case against him but not permitted to obtain all evidence which comes into possession of board in carrying out its functions in public interest on sole ground that it may be relevant to matter at hand. (a) Board is balancing duty to applicant against limiting its ability to discharge its responsibilities in the public interest on an ongoing basis. Board exercised duty properly in case. (b) Law and policy require some leeway be given an administrative tribunal w/ economic regulatory functions (4) Held: appeal dismissed

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d) May v. Ferndale institution: May serving life sentence, transferred to low to medium security based on computer software that generates score. Argued that Stinchcombe disclosure requirements apply b/c transfer was loss of liberty. Court held Stinchcombe was criminal proceeding when innocence at risk, here no criminal trial, these principles do not apply to administrative context. But was entitled to scoring matrix b/c Corrections Act requires to give offenders all info relied up in making decision. W/o knowing May unable to respond to case against him. e) Cases D7B Companies of Canada, CIBA-Geigy Northwestern General Hospital, and Dofasco: evaluation of pre-hearing discovery claims may not be based solely on considerations of admin convenience and what is procedurally fair to those affected. Confidentiality and privacy claims will be advanced as justification for not providing any or full discovery: public interest privilege (D&B Companies of Canada), litigation privilege (Northwestern General Hospital), solicitor client privilege (Pritchard), personal info and relevance (Dofasco), and protection of commercially sensitive info acquired in confidence (CIBA-Geigy). D.Delay 1. Undue delay may result in breach of rules of natural justice or procedural fairness achieved a measure of acceptance: 1) many admin agencies are strapped for resources and cannot handle caseload in timely fashion. 2) hearings are delayed b/c pending outcome of criminal proceedings against member accused of professional misconduct arising out of same circumstances. 3) increasing tendency on agencies to accept complaints even though they occurred years ago. All result in person being prejudiced by delay in proceedings. 2. Kodellas v. Saskatchewan (HR Commission): a) Determining unreasonable delay factors to consider: 1) whether delay is prima facie unreasonable, have time regard 2) reason for delay, have regard for complainants, commissions and discriminators conduct 3) prejudice caused by delay b) Nothing indicates how many of missing witnesses are essential to his defense, how many have something to add and nothing to have (located 12 out of 50 witnesses) c) But there has been some real prejudice caused to him by the delay. E. Oral hearings: oral hearing not aways required by rules of natural justice. If charter or Bill of rights violated, may need an oral hearing. Oral hearing cases are sensitive and depend on matters in issue (Baker) Sexual harassment cases not given oral hearings b/c trauma associated with confronting ones harasser and to be cross examined is an obstacle to formal complaints being lodged. Things that come in issue are open hearings, cross examination rights, access to and opportunity to meet adverse evidence. 1. Masters v. Ontario: ontario agent genera, allegedly sexually harassed 7 women. Report done. Argues breach of natural justice - 45 witnesses interviewed w/o him, refused access to list of questions, notes, transcripts, names of investigators, did not provide his counsel w/ equal access to same witnesses interviewed and this lead to reasonable apprehension of bias. Wants right to cross examine. (1) Reasoning: he was employed by premier, relationship involves ministerial discretion, different from Knight and Nicholson in that this is towards discretionary or legislative, not statutory. Duty of fairness does not require govt to direct witnesses to subject themselves to masters questioning/confront. He had opportunity to interview those who wanted to be questioned. (a) Witnesses responses to masers denials and counter accusations did not amount to material changes in allegations against him. Disclosure of substance of accusations was sufficient, did not need all statements. Had fully reply opportunity in legal argument format. Knew allegations, stated care before premier, and was given final reply. Procedures were tailored to nature of allegations. (b) Fairness doctrine does not require trial or trial like procedures prior to discretion being exercised. And also was not entitled to confront witnesses directly or indirectly. He was aware, had change to be heard, neither was investigation unfair or bias. Duty to act fairly w/n scope of employer-employee reln were met. (2) Held: application dismissed 2. Khan v. University of Ottawa: failed evidence class, had to complete extra semester of classes b/c failing it made gpa fall below passing gpa. Says she wrote 4th answer booklet that was not answered. Committee met w/o notice to Khan, or asking her to appear. Dismissed her appeal. Sought judicial review after unsuccessful appeal to Uni Senate Committee. a) Concurrence reasoning: entitled to high standard of justice. should have 1) given her oral hearing where she had opportunity to appear before they spoke 2) committee should have considered procedures followed during and after exam and made reasonable inquiries to determine whether these procedures were proper, 3) should have given her opportunity to correct or contradict their 3 factors for denying decisions. (1) Oral hearing: her credibility was in issue b/c they only have her word that she wrote the 4th booklet and handed it in. She had an explanation for their 3rd factor (indicated she wrote 3 books and had little written in 3rd book), and should have heard it. This is different than other cases b/c her credibility was in issue so should have had oral hearing according to fairness. Did not believe her w/o hearing her this amounts to denial of procedural fairness. (2) Need not show that she has suffered actual prejudice. Only show that breach of duty of fairness may reasonably have prejudiced her. b) Dissent: oral hearing is not required to satisfy demands of natural justice. No allegations of misconduct or dishonesty made against her so her credibility was not in issue. Only that there is insufficient evidence of 4th booklet and could find no error or

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injustice in grading of examination. Charter rights are not in issue. Not been denied entry into legal profession, only has to go to school for one more semester as a result of her cumulative grades in 2nd year. c) Held: appeal allowed F. Open hearings: held at specific place and time. Held that infringe the freedom of press and expression was overinclusive, which was aimed at (protection of refugee claimants) and could not be justified in reference to s.1 Onus placed on public seeking open hearing. Law amended to allow open to public with exception that if life, liberty, security of person endangered by inquiry, adjudicator should take measures to ensure confidentiality of inquiry. 1. Professional disciplines: due to argument of s.2(b) charter for express, changes in practice of professions keeping proceedings private, to protect reputations. (health care asking for consent of health professional to have hearing open) 2. Ottawa Police Force v. Lalande: senior cop charged with have sexual relations with prostitutes while on duty. Request to have hearing in camera was opposed by newspapers, CBCm police force, and rejected. Hogg: press is part of courtroom, neutral link between court and hearing and vast public beyond its doors. Unless compelling reason, trial that affects the public must be open to all citizens. Circumstances do not here do not outweigh desirability of adhering to the principle that the hearing be open to the public. 3. Factors that countervail: protection of privacy of victims, ensuring witnesses are willing to testify. In non professional contexts there are concerns about need to protect form public glare info w/ not only national security but also commercial competitiveness dimensions. G. Right to counsel: representation by counsel is not a universal right, there are limitations on extent of counsels participatory entitlements and on concept of counsel of ones choice. 1. Re Mens Clothing Manufacturers Association of Ontario and Toronto JOint Board, Amalgamated Clothing and Textile Workers Union: a) Issue: whether theres an absolute right to legal representation, and if not whether discretion exercised in instant proceeding so as to permit representation b) Arbitrator: (1) Common law position: 1) neither courts nor in other forums is an absolute right to counsel regarded as an indispensable feature of natural justice, 2) legal representation is desirable, and the exercise of discretion by the tribunal should favor it, 3) there may be some circumstances where the participation of counsel is inimical to the functioning of the tribunal. (2) Arbitration agreement shows devotion to process which differed radically not only from that of courts but from that of other, less venerable, labor arbitration systems. (3) For 60 years parties have been arbitrating with lay representatives only. Have lawyers will put many things at risk: arranging dates for arbitration, delays, long hours, etc. They are free to change the rules but must do so w/ mutual consent. (4) Counsel can be there for limited extent of making legal argument. The rest lay persons can do c) Rule: (after association filed for review) party entitled to be represented by an agent before a domestic tribunal cannot be restricted by their tribunal in choices of its agents, in absence of an applicable rule or agreement containing such restriction d) Reasoning: arbitrator cannot limit their right to retain lawyers, for such they are retained in such matters. By looking at intention of parties from words of agreement and surrounding circumstances, clear that parties intended that representation by counsel be permitted. (1) Normally these parties are corporations vs unions, both represented by unions. Implied term of collective agreement that individual party should also be entitled to right of representation by counsel, assuming no provision in collective agreement.No absolute right to counsel for same reasons as arbitrator (2) Material and factual issues involved are complex. Because controversy and complexity, both in fact and law, natural justice requires applicants to be represented by legal counsel at the hearing w/o any limitations. even though theres no absolute right to counsel. e) Held: learned arbitrator in error. Application granted, leave to appeal to the court of appeal refused. 2. Irvine v. Canada: counsel allowed to be present but not the parties they represent - eg. inappropriate for business competitors to be present. Counsel safeguards their interest and not reveal commercially valuable information. This approach also taken in cases where knowledge of info at stake may be potentially damaging to the person affected (medical diagnosis of ps state of mental health) 3. Canada v. Canada: counsel and client present together. Tribunal cannot extend order excluding witnesses from the hearing room to the person designated by the respondent to instruct counsel in the course of hearing. Person must be present to effectuate right of CRTC to be represented by counsel. 4. Re Parrish: captains ship collided with another, summoned by investigator to appear before board, he appeared with 2 lawyers, but investigator refused to allow this although investigator previously allowed counsel to be present when crew members interviewed. Captain refused to testify. Board questioned ft ct whether under s. 18(3) fed courts act whether it could require captain to attend and give evidence under oath w/o presence of counsel. Held that he needs full opportunity to be heard in person or by counsel, would affect his rights if he cannot present case w/o assistance of counsel. Statute compels attendance of witness implies that legislature assumed counsel would be available

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a) Rule: duty to act fairly implies presence of counsel when combination of some or all elements are found in enabling statute or implied from practical application of statute governing tribunal: where an individual or witness is subpoenaed, required to attend and testify under oath w/ threat of penalty; where absolute privacy is not assured and the attendance of others is not prohibited; where reports are made public; where person can be deprived of his rights or his livelihood; or where some other irreparable harm can ensue. b) Reasoning: Board is free to prohibit attendance of more than one counsel, captain had 2. Need for administrative expediency in proceeding does not outweigh the necessity for protection of a witness through presence of counsel. (could affect his reputation, career, if reports are leaked, might be questioned before police or other authority). c) Held: procedural fairness requires that witness be permitted to be accompanied by counsel when at the inquiry. 5. Dehghani v. Canada: procedure employed at ports of entry in canada when initial immigration officer has concerns about admissibility of person. Person seeking entry referred to secondary examination at which there was no entitlement to representation by counsel. D referred, arrived w/ no documents and asserting convention refugee claim. Notes taken during 2nd exam entered into credible basis stage of convention refugee process, then D was represented by counsel. Found to have no credible basis for claim and ordered removal. D claimed denial of access to counsel during course of 2nd examination infringed both his ss. 10(b) and 7 Charter. a) Held: 10b didn ot apply b//c reference to person seeking entry into Can to secondary examination was not a detention.Principles of fundamental justice do not include right to counsel in routine information gathering. Would complex and result in unnecessary duplication. 6. R.v. Secretary of State for the Home Dept: 5 prisoners charged, requests to be represented by counsel denied. Sought certiorari to quasj decisions. Some charges raised difficult issue of interpretation and others involved severe penalties. Representation could not have reasonably been refused. a) Reasoning: following is list (not exhaustive) board should take into regards when deciding to allow legal rep or assistance of friend or advisor: (1) Seriousness of charge and of potential penalty (2) Whether any points of law are likely to rise (must understand charge) (3) Capacity of particular prisoner to present his own case (4) Procedural difficulties: prisoner awaiting adjudication is kept apart from prisoners, this amy inhibit preparation of defense. W/o capacity to interview witnesses, lack of ability to cross some witnesses that are experts. (5) Need for reasonable speed in making their adjudication (6) The need for fairness as btn prisoners and as btn prisoners and prison officers b) Conclusion: factors bear that prisoner should be given full opportunity of hearing what is alleged against him and of presenting his own case. 7. Howard v. Stony Mountain Institution a) Issue: whether appellant has undeniable right to counsel, whether s. 7 of Charter guarantees that right b) Facts: inmate in institution. 5 charges laid: possessing contraband, indecent or disrespectful language to another, act calculated to prejudice discipline or good order of institution, disobeying law order of officer, and threatening to assault another person. Plead guilty to possessing contraband and disobeying lawful order, other three not guilty pleas. Application at disciplinary court for having counsel present denied. (1) By the time the date arrived of court proceeding, appellant had 267 days of earned remission and was due for release on mandatory supervision. Earned remission was subject to forfeiture or solitary confinement. On that day, found guilty of 6 from 7 counts and sentenced to forfeiture of 70 days earned remission. Counsel urged court to consider right of inmates to counsel in such proceedings and effect of s.7 of Charter. c) Reasoning: what is required varies with situation and nature of particular case. Unbiased tribunal, knowledge of person whose life, liberty, security is in jeopardy, fair opportunity to answer and a decision reached on the basis of the material in support of the case and the answer made to it are features of such procedure (1) Sec 7 has not created absolute right to counsel in such proceedings. (2) Required opportunity to present the case adequately (3) The fact that his 267 days of remission were subject to being forfeited, alone suggests need of counsel. Also, conviction of 2 charges might result in losing 30 days, and charges of discipline good order are vague and difficult for anyone to defend. This suggests that counsel required. d) Rule: whether person has right to counsel depends on circumstances of case, its nature, its gravity, its complexity, capacity of the inmate himself to understand the case and present his defense. Whether or not an inmates request for representation by counsel can lawfully be refused is not matter of discretion but matter where circumstances are such that the opportunity to present the case adequately calls for representation by counsel.

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e) Held: refusal of request for counsel was a refusal of the opportunity to which entitled to adequately present his defense and that prohibition should have been issued, 8. Notes: no absolute right to ones choice of counsel. Right will mean little if cannot afford counsel. Unless there are constitutional guarantees, the right depends on legal aid, clinics, pro bono, volunteer, non paying services. Assistance offices w/n structure of admin tribunals will also help this. 9. New Brunswick (minister of health and community services) v. G(J)(JG): issue whether s. 7 and/or 15 of Charter will ever create an entitlement to state provided counsel. a) Issue: whether s. 7 of charter required that mother be provided w/ counsel for purpose of resisting an application of Child Welfare authorities for renewal of an order placing her three children in custody of the state. b) Rule: Appellants right to fair hearing depends on 1)seriousness of interests at stake, 2) complexity of the proceedings, and 3) the capacities of the appellant. c) Reasoning: Not every case affecting life, liberty security will require counsel. Seriousness, complexity, and capacity vary case to case, and where its necessary for parent to be represented, it will be proportional to seriousness, complexity, and capacity. (1) Factors (a) Seriousness of interests at stake: lives of both parent and child effected, parents legal right to security of person at stake and childs welfare. Also, order would extend custody by 6 months, parent will be separated for longer. Rule: Seriousness depends on depends on length of proposed separation (permanent guardian more important than temporary custody). (b) Complexity of proceedings: child custody hearings are adversarial proceedings that occur in court, difficult evidentiary issues raised, parent must plan, present, adduce evidence,cross examine, object, make legal defenses. Minister had planned to present 15 affidavits and 2 expert reports. Rule: varies from case to case. Some will have short simple questions of fact others will take days and have points of law, experts, evidentiary questions. (c) Capacities of appellant: No evidence that mother has superior intelligence, communication skills, composure and familiarity w/ legal system to effectively represent herself. Rule: varies. Some educated and know about legal system, others have difficulty communicating. Most parents are from least advantaged group of society. (2) Domestic Legal Aid Program: does not provide representation for people in custody applications. This violates constitution in this case. (3) Section 1 charter: the program minimally impairs s. 7. Objective of limiting legal aid expenditures - additional cost of providing state funded counsel for custody order is insufficient to constitute a justification w/n meaning of s.1 Govt not under a legal obligation to provide legal aid to every parent who cannot afford a lawyer, rather only if its essential tto fair hearing wheres parents life, liberty, security is at stake. Parents right to fair hearing when state seeks to suspend each parents custody or his child outweighs relatively modest sums, when considered in light of govts entire budget. d) Held: appellants right to fair hearing required that she be represented by counsel. If no counsel, threatening to violate her and childs s. 7 right to security of the person. Appeal allowed. 10. TEST for child custody cases: a) First inquire if parent has applied for legal aid. Should first exhaust resources for state funded legal assistance. If not, give reasonable time to apply. b) Then look into whether parent can receive fair hearing if unrepresented, applying factors above: (1) Seriousness of interests at stake (2) Complexity of proceedings (3) Capacity of parent c) Judge should bear his own ability to assist parent w/n limits of judicial role d) If after considering all this judge finds there is no other way to provide parent w/ lawyer, judge should order govt to provide parent w/ state-funded counsel under s. 24 Charter H. Disclosure and Official Notice: general principle is that a party is entitled to know what evidence and representations have been give and is entitled to an adequate opportunity to respond. 1. Kane v. Board of governors of UBC: professor suspended by president, appealed to board which president was member of. Had hearing w/ kane and president, then had dinner and discussed w/o kane, saying that president only gave facts, no participation. Court: board had obligation to postpone further consideration until kane was present and could hear facts. Should have been made aware of facts and afforded him a real opportunity to correct or meet adverse statement made. 2. Disclosure: of info that agency has about decision to be made (element of common law natural justice. Justification for requirement is to enable party to know and respond to info that agency has and that may influence decision) 3. Notice: extent and manner in which agency may (in making its decisions) use material that is not introduced in evidence.

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4. Access to information statutes: many jdx have freedom of information and privacy laws. Exempted from disclosure. but this does not mean it will be denied in proceedings to which rules of natural justice or procedural fairness apply. Access to Information Act- stated that act is w/o prejudice to other laws governing access to info, complements not replaces existing entitlements to access, not entitled to limit existing right of access to govt info. This includes common law of natural justice and procedural fairness, and the determination of whether that common law requires disclosure is certainly not preclued by the fact that the Act provides exemption from disclosure in content of freedom of info request. 5. Crown or executive privilege: provisions under Canada Evidence Act apply to proceedings before administrative agencies. a) Babcock v. Canada: Court held that s. 39 (confidences of the queens privy council for canada) infringed neither unwritten principles of can constitution nor the guaranteed core jdx of the superior courts. However, court accepted broader jdx for inquiry into process by which s/ 39 would trump rights under s. 7 b) Toronto Start Newspapers Ltd. Canada: argued that s. 38.04(4), 38.11, 38.12(2) denied star access to s. 38 application and to the courts records associated w/ it even if all parties were present at the proceedings and no secret info was disclosed, violated 2(b) Charter right to freedom of expression and not justified under s. 1. Sections read down to only apply to ex parte representations. c) Abou-Elmaati v. Attorney Genera: plaintiff sued govt in tort and for breach of Charter rights for its role in causing imprisonment and torture by foreign govt. Held that to the extent that s. 38 ousted superior courts jd to review claim of fed crown privilege on national security grounds, impaired courts jdx and was unconstitutional. d) There is no room for absolute privilege, and the last word on any claim for privilege rests with the courts, not the executive. 6. Other common law evidential privileges: solicitor-client privilege, and adjudicative privilege a) Four groups of situations where difficulties and choices arise in deciding about existence and extent of right to disclosure. (1) Agency collects info about individual, and ind may wish to disclose this info (2) Agency collects info aboutt ind from other persons and the ind ma wish to know their identity (3) Agency collects info about business, usually as required part of application, and other parties (competitors) want disclosure (4) Agency has material it created itself (staff reports about corp, economic conditions, guidelines, policies). Any party (competitors of corp) may wish disclosure of material 7. Access to agency information: (1) a) Three major arguments for disclosure: (1) Individuals should have the right to know what govt knows about them (2) Disclosure would increase substantially the effectiveness of the participation of workers in the decision making process b/c would enable them to respond to info to be used by the board and would increase acceptability and accountability (3) Disclosure would improve quality of the reports by exposing carelessness and vagueness b) Reasons for refusing disclosure: reports are confidential, disclosure may cause harm to worker (cancer in back, causing depression); attitude of doctor (fear of litigation liability, or disclosure would cause lack of frankness and detail in the medical reports they right about patients b/c could be read out loud in court of law) (or unwillingness to be bothered, questioned, challenged). c) Re Napoli and Workers Compensation Board: (1) Issue: was judge right in finding that boards of review and commission breached rules of natural justice in failing to give worker full opportunity to peruse his file when he appealed from original decision of a disability awards officer or commission? (a) Do rules of natural justice in cases of this require disclosure? (Yes) (b) If disclosure required, what is its extent? (2) Procedures given: apply for compensation, heard by officer, who can compel attendance, examine under oath, produce documents. WCB acts on officers report. If compensation awarded, can appeal to board (independent), if board does not uphold officers finding decision goes to WCB for reconsideration. Final decision made by WCB majority of commissioners. If work dissatisfied w/ boards decision can appeal to commissioners of WCB. (3) Facts: Napoli injured, got 5% of disability, 33.56 per month, increased to $50, appealed to board, WCB. Before hearing, WCB consultant gave him 4 page summary of info on his life. Board declined to disclose medical reports on his life. Board recommended to WCB to deny his appeal. Applied for leave to appeal decision of board to commissioners of WCB, granted. (4) Rules: rules of natural justice apply in hearings before boards of review and commissioners sitting on appeal, thus, contents of file must be disclosed. (5) Reasoning: Extent of disclosure (2nd issue): (a) 4 pgs given, 2nd summary was 16 pgs, disclosed 30 medical and expert reports which counsel would like to have cross examined, to do so, need original documents. High standard of justice is required. Summaries do not conform to rules of natural justice. Persons preparing reports that they know will be subject to scrutiny will prepare them w/ greater care

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and diligence, and more important, fairness requires that original docs be disclosed in order for claimant to be able to effectively answer case against him. (6) Held: summaries was not sufficient compliance w/ rules of natural justice. Appeal dismissed. d) Re Egglestone & Mousseau and Advisory Review Board: Mental health act allowed patient to call witnesses w/ permission of chair, cross examine, members or board may interview patient or any person in private. E requested disclosure of his hospital file, chairman made order that permitted only his counsel to read it and only in presence of member of the board and only on condition that it not be disclosed to E. Review sought and failed. (1) Held: there is only reasonable order that could have been made by the chairman to achieve a balance btn the right of the patient to disclosure of the relevant facts. as against the right, indeed duty, of the board to preserve confidentiality of info in sensitive areas. Counsel should obtain consent of client to accept documentary review on limited basis, better than nothing. 8. Identity of Sources of Information (2): disclosure of sources of info have no general rule, except reasonableness. Cases deal with informants and raise issue of the impact of the Charter on traditional common law justifications for withholding information. a) Charkaoui v. Canada (citizenship and immigration): permanent resident, detained b/c security certificate issued that he was threat to canada. C asked for complete notes of his 2 interviews w/ CSIS, but ministers informed judge that these had been destroyed pursuant to CSIS policy. Alleging procedural fairness violated by ministers refusal to disclose notes, C sought order staying proceedings, quashing the certificate, and releasing him from custody. (1) Reasoning: CSIS act required officers investigating to retain operational notes, which may be necessary to ensure that a complete and objective version of facts available to those responsible for issuing and reviewing the security certificates. (app ct stated basis of disclosure is only in criminal proceedings, not administrative) (a) Criminal law principles governing disclosure: held Rule in R.v. Stinchcombe file must be complete as possible so that all evidence might be relevant to defense can be disclosed to counsel. (b) Distinguishing context of security certificate: serious consequences of liberty and security under s. 7 Charter come into play here. Form of disclosure of all info that goes beyond summaries is required to protect fundamental rights by the security certificate procedure. Whether s. 7 Charter applies depends on severity of consequences of states actions to persons fundamental interests of liberty and security. To protect interests, disclosure becomes necessary. Investigations by CSIS play central role in decision of issuance of certificate. Consequences of security certificate are more severe than criminal charges. (c) Duty to disclose based on s. 7 and related severity of the consequences of the procedure for the named person: Rule: duty to disclose is included in rights protected under s. 7. Issuance of certificate and consequences (detention) demand great respect for right to procedural fairness - which includes procedure for verifying evidence adduced against him. Also includes disclosure of the evidence to named person in a manner w/n limits that are consistent w/ legitimate public safety interests. i) Suresh v. Canada: these factors confirm rule above. (being sensitive to each situation, use 5 factors analysis) ii) Must decide how to duty to disclose is to be discharged in this context of security certificate and review of reasonableness, and to the detention review. (d) Duty adapted to nature of procedures designed to ensure the proper performance of the mandates of ministers and of the designated judge: if original evidence destroyed, judge has access to limited summaries prepared by state, meaning it will be difficult if not impossible to verify allegations. Difficulties in reasonableness of the certificate and detention review. CSIS should be required to keep all info, give to minister and judge, both will verify info. Minister can make better decision of certificate and judge can exclude evidence that poses threat to national security and summarize remaining evidence and check from reliability and accuracy (e) Duty to the individual adapted to the requirements of confidentiality of the info in question that is being reviewed by the designated judge: confidentiality related to public safety will limit disclosure. Judge must filer evidence that is verified, determine the limits of access to which named person will be entitled at each step of the process, both during review of the validity of the certificate and at detention review stage. (f) Breach of the duty to retain and disclose: destruction of operational notes is a breach of CSIS duty to retain and disclose info. Required to disclose and retain all evidence, and operational notes, disclose them to minister for issuance of certificate, and then to judge, for review of r easonableness of the certificate and the need to detain the named person. ALl because of seriousness of consequences to life, liberty, security of person. Designated judge provides non privileged info to named person. (g) Note: By adjourning detention review, C had time to prepare testimony and defense, judge had averted prejudice that might have resulted from delay in disclosing interview summaries, give the fact that C had participated in the interview and knew what he said in them. Refused order to stay of proceedings. (2) Held: appeal allowed in part.

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b) Notes - Charkaoui II: ministers did not disclose information, and rather than withdrawing certificate (all evidence in entirety), asked judge to rule on its reasonableness asserting they would not meet their evidentiary burden (hoping to certify question for court of appeal, hoping that scope of disclosure would cut down). Designated judge held in light of ministers withdrawal of supporting evidence, certificate is no longer complied with requirements of its referral to the court and declared the certificate void. Certificate was not reasonable in view of ministers admission that they could not meet their evidentiary burden. Courts methodology for disclosure: (1) Each time question arises, designated judge must determine whether disclosure of info would be injurious to national security or safety of any person. No deference given to CSIS or ministers. (2) The disclosure of evidence on which certificate is based to the named person in a manner w/n limits that are consistent with legitimate public safety interests. Judges role is to filer evidence he has verified and determine the limits of the access to which the named person will be entitled at each step of the process. (3) In camera hearings - held for disclosure of any evidence. Purpose was to assist court in achieving objectives by means of a process of filtering and of producing neutralized summaries. (4) in Charkaoui II: interim decision in which court set out scope of ministers disclosure obligations in security certificate proceindgs. there was no s. 7 breach and the court was not called on to determine whether a failure to disclose in breach of s.7 was justified under s. 1 c) Re Harkat: CSIS failed for 6 years to disclose to the ministers or to the court that confidential info against Mr. Harkat, had failed all relevant questions on polygraph test. Officer failed to disclose when asked. 2nd officer when learned of discrepency told litigation department, not counsel in case. 3rd officer responded he didnt have time to fully prepare for appearance. Court found non disclosure fault of institutional failings of CSIS training and inadequate resources. d) Gallant v. Canada: G prisoner at Kent maximum security, going to be moved to Saskatchewan maximum security b/c received info that prisoner was involved in extortion of money and personal property from inmates and members of community, threats of violence, importation of drugs. Specific info not disclosed to G b/c it would jeopardize safety of victims (by other inmates). G applied to trial division for order quashing decision. Certiorari granted on ground notice insufficient. T the deputy commissioner appealed. (1) Rule: director of penal institution is normally obliged, before imposing administrative segregation on inmate, to give him a fair opportunity to be heard. Director is relieved from obligation when decision to impose administrative segregation must be made quickly in an emergency (2) Issues: violated rules of procedural fairness (notice) and s. 7 charter. (3) Pratte Majority reasoning: (a) Procedural fairness i) circumstances were efficient to relieve appellant from obligation to give detailed notice. Parliament did not intend that inmates be bound by rules of procedural fairness even when application of those rules would endanger lives of other inmates. (b) S. 7 Charter i) Decision to transfer inmate to penal institution where his freedom will be more severely restricted, is a prison w/n a prison, which deprives him of his liberty. Decision must be according to s. 7 Charter principles of fundamental justice. ii) Rule: principles of fundamental justice are not limited to procedural guarantees. They do not differ in substance from one another. (right to fair opportunity to be heard) is guaranteed by both. iii) Must look to see if both have same flexibility. Vary from case to case. This means: (1) Assertion may merely mean that same general rule will produce different results if it is applied to different factual contexts (2) May be flexible and variable in a very different sense which is related to the very nature of those rules. iv) Principles of fundamental justice do not have same flexibility as the rules of natural justice and of fairness v) The decision to transfer respondent to Sask was not made in accordance w/ principles of fundamental justice since respondent was not given real opportunity to answer allegation made against him. (c) Whether breach of s. 7 was authorized by law that met requirements of s. 1 i) Penitentiary Act gives commissioner discretionary power to transfer inmate from one institution to another, tempered by principles of procedural fairness that apply as circumstances permit. No argument on whether law meets requirements of s.1 ii) In a free and democratic society, it is reasonable perhaps even necessary to confer such wide discretion on penitentiary authorities. (4) Held: allow the appeal, set aside order of trial division, dismiss the application for certiorari made by respondent.

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Concurrence: issue is whether rule of confidentiality can influence the content of duty to act fairly. (a) Rule: extent and character of such participation should depend on the circumstances of the case and the nature of the decision to be made. (b) Reasoning: wrong to put same level of admin decisions involving inmates in penitentiaries. Not only do decisions differ as to individuals rights, privileges, or interests they may affect. Also differ as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation. i) Here, it was whether info received from 6 other sources was sufficient to raise a valid concern and warrant the transfer. (6) Dissent: test to be applied is admin law, not crim law. He has already lost liberty by virtue of incarceration. Transfer will change his condition of detention. This type of loss of liberty is consequence and attracts the protection of procedural fairness at common law and s. 7 Charter. (a) Reasoning: burden is on authorities when disciplinary measure taken to show that circumstances do not allow to inform respondent of the facts on which the charge is based. Burden is not a light one b/c protection of constitution does not stop at prison gate. (b) Lacking info about what drugs, duration of drugs, property, what community affected, were police informed, any investigation. No emergency claimed either. No affidavits showing why they thought info was reliable. Record must contain some factual info from which authorities can conclude that informer was credible or info reliable (american cases). Need something to show that its genuine fact finding and prisoners not involved in personal vendetta. Did no investigation, no statements under oath, no tight surveillance of respondent to gather evidence, no police investigation. (c) Would dismiss the appeal for lack of satisfying affidavits. e) Gough v. Canada (national parole board): Facts & Ph: G on parole for 5.5 years, b/c of complaints of sexual assault, coercion, drug use, parole was suspended and revoked. Parole board did not reveal at Gs post suspension hearing or any time details or dates and places of alleged incidents or names of victims. G applied to quash on basis of s. 7 charter violation. Application allowed, board can either quash or give info. Board chose 2nd option and appealed, granted, on basis s. 24 charter. (1) Reasoning: (a) If he knew, then disclose it, no reason not to. (b) Rule - at common law and s. 7 charter, rules of fundamental justice require that an individual is entitled to know the case against him in a decision-making process which leads to a diminution of his liberty. i) Essential not only to prevent abuses by people making false accusations but also go give person who has been accused assurance that he is not being dealt w/ arbitrarily or capriciously. ii) Guarantees of s.7 vary by circumstances (c) Paroled inmate - conditional liberty: his conditional liberty interest is high b/c almost at stage of having unlimited liberty, was on reduced parole status, been on it for 5.5 years. Also a public interest in procedures which are fair in dealing with all members, including paroled inmates. (d) Section 7 requirements in parole/penitentiary context: entitled to sufficient detail respecting allegations made against him to enable him to respond unless respondent can demonstrate otherwise. (e) Limited s. 1: must determine content of principles of fundamental justice flowing from s. 7, applicable to decision making process challenge. If its a prescribed law, then see if its justified under s. 1 Regulation 17(5) is a prescribed law (f) Boards justification: checked accuracy before relying on it, if ordered to disclose would undermine whole parole board system, have to cease granting paroles. Review of affidavits (3) issue: if disclosure of info will necessarily disclose identity of informant, whether board is required to release info to the applicant or forego reliance on info in making a decision on applicants parole. i) No investigation done. Singh v. Minister of employment Immigration: administrative convenience does not justify denial of fundamental justice. ii) Exemptions from access to govt info does not apply to situations where persons liberty is in danger as a result of decisions being made based on that info. The fact that info is accurate is self serving. iii) The fact that disclosing evidence would disclose identity and put informants in dangerous is not convincing evidence that the disclose will result in that fact. iv) Assertion that disclose would undermine whole parole system is w/o any factual underpinnings. (g) Review by courts: under Access Info Act and Canada Evid Act, courts decide issues as to whether national defense or security might be affected by public disclosure of info in court. Asked to decide whether international relations might be affected by disclosure of info. Hard to conclude that this disclosure would have adverse effects. i) No evidence, that court has no jdx, has not established evidentiary base to support the arguments it makes. (5)

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(h) Limitation by regulation 17(5): very broadly framed, authorizes nondisclosure just b/c info received in confidence. Not a justification for limiting guarantees of fundamental justice. Inapplicable to deny paroled inmate this info. (2) Held: applicants s. 7 charter rights infringed b/c of refusal to disclose info, which respondent did not establish basis for justifying non disclosure, nor justifying 15(5) as a reasonable limit under s. 1 Order to quash and mandamus for new hearing by differently constituted panel (3) Disposition: application allowed 9. Commercially sensitive information (3): disclosure about businesses that may be regarded as confidential and that may give competitors an advantage b/c (may reveal pricing practices or contract terms) a) Anti-dumping act: established arrangements for dumping, whether it caused material injury to production in Can. Held: where evidence is confidential in nature, relating to business/firm/corp, is given during course of inquiry under s. 16, the info shall not be made public in such manner that it will be available for business competitors or rival of person. b) Magnasonic Canada v. Anti-dumping Tribunal: info of confidential character is tendered at a hearing, decision must be made as to what steps are required to comply with s. 29(3). First step is that evidence be taken in camera. Second step depends on circumstances. Most extreme step would be to exclude all competitors while evidence is being taken and to provide parties afterwards with report of evidence taken in their absence that is contemplated for parties w/ reference to confidential evidence taken under s. 28 c) Slayton, The Anti-Dumping Tribunal: confidential briefs, docs, exhibits, are given to counsel who are appearing for parties represented at the hearings, and those counsel are required to give an undertaking not to reveal confidential information to their clients. Confidential material made available must be returned by counsel at conclusion. 10. Staff Studies: claims to disclosure of materials created by an agency it self - eg. reports prepared by its staff or guidelines and statements of policy - an issue that we encountered earlier in the discovery case if CIBA. a) Franson, Access to Information: Independent Administrative Agencies: admin agencies have large staffs, responsible for investigation and studies. Members of public and participants in admin process often request disclosure of staff reports: inspections of firms - safety, pricing, profitability; general studies for specific industries; trends and problems; summarizes evidence of submissions made; draft decisions that agency may accept. (1) Argued that participants in admins process should see staff documents, reasons are well taken b/c: 1) info that might assist them in preparing submissions may be effectively denied if they do not have access to staff reports (will diminish value of participation). 2) confidence in fairness and impartiality of agency is undermines when participants become aware that staff submissions have been received in confidence. No opportunity to correct what may be erroneous info that can easily fear staff biases entered into decision making. (2) General rule is that staff reports are confidential and will not be disclosed. Exceptions: info would not be used against someone in proceeding that would affect his rights in a substantial way, unless it could be disclosed to him. However, no guarantee. Situations arise when reports used against them and not disclosed, participants find out through leak or after its too late to use for submissions. (3) Two interests for public disclosure: 1) it is not possible to assess performance of agency and its staff unless it is possible to see what information the staff has access to and also its analysis of that info. 2) public is entitled to have much of the info contained in staff reports b/c it affects the public. (4) Admin concerns for disclosure: 1) ministerial responsibility would be undermined by disclosure of staff docs and 2) that disclosure would serve to publicize the public service --not persuasive b/c 1) agencies should have independence from govt of the day and from ministers responsible for that area. Ministers not supposed to run agencies. 2) we should try to assure that agencies are publicly accountable for their action and for their inaction. (5) More concerns: 1) disclosure requirements would force the agencies to make public each and every draft of their decisions. 2) every scrap paper w/ hand written notes and drafts would also have to disclosed. -- exemption could be made to protect draft decisions, day to day operational notes. 3) candour of advice that is offered to agency by staff - disclosure would result in staff being less candid -- but, if advice has to be disclosed it will then be more thought out and carefully based accurate info. (6) Best approach: distinguish btn factual portions of staff docs and actual advice given. Factual portions should be available for any requester, regardless of context. Advice should be regarded as confidential, to protect agencys interest in obtaining staff advice, unless in the particular context, the interest of the requester or the public interest in disclosure becomes paramount. b) Toshiba Corporation v. Anti-dumping Tribunal: T sought review of decision of the tribunal on ground that it relied on two reports prepared by its staff and not disclosed to the parties. App ct dismissed: Two reports were made: (1) Preliminary report before public hearings: everything in this is either matter of general public knowledge or base don facts which were disclosed through hearing in a manner that gave full opportunity to test them. Breach was minor

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and inconsequential result of inquiry would not have been different had there been no breach. (intro to subject matter, statements of fact that tribunal had to decide) (2) Final staff report after hearings: consists of summary and commentary on evidence and submissions made on inquiry. Nothing improper about this and not dissimilar to work that law clerks do for judges. Proper part of functions of tribunal, no disclosure needed. (3) Staff members role to sift and summarize evidence, and not improper for her to flag possible weaknesses in evidence for commissioners consideration and reflexation. c) Trans-Quebec & Martimes Pipeline Inc. v. National Energy Board: applied for disclosure of staff reports. Dismissed by fed app ct: Rule: where decision of tribunal can be shown to have based on staff reports to which parties have not had access containing evidentiary material to which parties have not had an opportunity to respond, it may be possible to make out case requiring disclosure. The fact that reports prepared and submitted on a confidential basis, would not afford them protection. (1) Reasoning: Here, reason for inclusion in the case is to establish boards reasons for decision. Analysis and opinion are irrelevant to ascertainment of boards reasons for decision b/c they cannot be assumed to have been adopted by it as its reasons. Boards reasons for decision are those which it chooses to express or which can otherwise be clearly shown from its own words or actions to have been its reasons. d) Annotation of Janisch, 8 Admin: drawbacks of institutional decision is outcomes may influenced by staff whose views and assessments are not made part of the public record. Analogy of judge and law clerks: law clerk makes summary but judge makes the decision wholly, w/o influence. In agency, times where the specialist making summary is the one who decides. (1) Two categories of staff reports: 1) documents which add evidence: info gathered by staff form inspection visits, monitoring analyzing programs. (may be disclosed) 2) documents summarizing applications: summarizing evidence, discussing commission regulations and policies, discussing applicability to particular application, in sum, documents which do not add evidence (confidential) (2) Agencies should do to eliminate 4 objections: 1) influence of advocate is not lost from case 2) parties have opportunity to meet the appropriate fashion w/e extra-record facts are introduced through consultation 3) that parties have a chance to respond to new ideas that ma be decisive 3) opinion writers reactions to their systematic examination of specifics of a case play as large a role as they deserve in the decision-making. e) Armstrong v. Canada (RCMP): Fed ct app upheld non disclosure of staff report in disciplinary context. Commissioner relied on staff summary of evidence, including psychological assessment, to dismiss appeal from a discharge and demotion board and order Armstrongs discharge from rcmp. Staff member noted that one psychologist was unaware of As history of problems w/ paperwork - fact that influenced his opinion had it been knowing during his evaluation. McDonald: staff not qualified to comment, should have been disclosed to allow A to respond. Stone held: comment was appropriate b/c did not suggest that the result was foregone, or recommend how appeal should be disposed of by the commissioner. I. Admissibility of Evidence: what procedures should agencies use for fact finding, especially for facts that are different from kinds of facts that usually concern courts. Rule: agencies are not governed by rules of evidence used by courts, unless some statutory provision requires them, and such are rare. 1. Miller (T.A.) v. Minister of Housing and Local Government: whether piece of land had been used by a business for retail sale of garden supplies during particular period. Evidence of property use by 4 witnesses. Contradictory letter by managing director of business, witnesses given opportunity to comment, they disagreed but court decision relied on it. Appeal refused. Reasoning: hearsay is allowed and admissible in tribunals, as long as there is natural justice and fair opportunity to respond and comment on it. Tribunals can at on material that is logically probative, even though it is not evidence in a court of law. 2. Discretionary authority of boards and tribunals over questions of admissibility and requirements of proof is subject to limit and those limits may be influenced by common law evidential principles: Universite de Quebec a Trois-Rivieres v. Larocque: inadmissibility ruling led to denial of natural justice. Evidence was relevant and crucial to defense. Discretionary decisions over admissibility of evidence must not remove the entitlement of affected persons to have a reasonable opportunity to make their case. 3. Natural justice considerations also arise by admission of and weight attributed to certain kinds of evidence. Unlikely that admission of hearsay evidence will lead to breach of rules of natural justice. (its in if its reasonably necessary and reliable Khan v. College of Physicians and Surgeons of Ontario). Sometimes, may result in denial of natural justice (case will be over turned Bond v, New Brunswick). 4. Re Clarke and Superintendent of Brokers, Insurance, and Real Estate: Facts- clarke surrendered real estate license after charged w/ theft and fraud in connection w/ sale of home owned by J. Acquitted and applied for a new re issue of license. Application made to superintendent, held hearing. Counsel for superintendent introduced transcripts of Js testimony at criminal trial b/c bad health could not attend. Transcripts admitted, superintendent refused re issue, although did not give much weight to Js evidence. C appealed, dismissed, leave to appeal refused. a) Court of App reasoning: transcript evidence of J was admissible and superintendent in admitting evidence and giving it little weight made no error of law or in fact.

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5. Timpauer v. Air Canada: board did not allow him to present evidence, experts, witnesses of effect and danger of smoking in his work place generally and to him personally. Complaint dismissed. Review suceeded. Concluded, boards interpretation of imminent danger not unreasonable, board cannot decide impact of smoke on health w/o relying on experts, physician, allergist. By refusing evidence board denied applicant natural justice. Counsel argues that even if natural justice had been denied, it arose out of boards interpretation of term imminent danger and as that interpretation is not patently unreasonable, this court cannot interfere. a) Supreme court held previously that in decisions of commissioners and of labor court, not being patently unreasonable, should not be interfered w/. Thus, no room for argument that natural justice had been denied. b) Here, board had to decide whether or not circumstances disclosed the existence of an imminent danger to health of applicant. To do that, first had to hear all relevant evidence either party wished to adduce and then to determine the facts. Only after doing so could it decide the merits of the matter on the basis of its interpretation of the Code. J. Cross examination: Re Toronto Newspaper Guild and Globe Printing: guild applied to board to be certified as bargaining agent for employees of globe. In support, represented majority of employees, official submitted membership cards. Company, suspecting that some employees left union after application, sought to cross examine. Board refused and refused to undertake cross examination itself or to do secret vote. It certified union. Globes application for certiorari granted. Held: most effective way for company to test merits of application was through cross examining person who was presenting it to the board. Right to cross was not granted and in that, comp was improperly excluded from cardinal privilege which it enjoys under our jurisprudence that exclusion of itself, was tantamount to a denial of basic justice. 1. s. 10.1(b) SPPA: now has cross exam rule - reasonably required for full and fair disclosure of all matters relevant to issues in proceeding. 2. Innisfil (township) v. Vespra (township): city of Barrie filed application to Ontario Municipal Board for permission to annex land in adjacent townships. B claimed needed land to accommodate pop of 125,000. Figure approved by govt. Letter from minister stating govt policy introduced at board hearing. When it reached Court, issue whether board obliged to accept letter settled, admissible, policy relevant but board had to make up its own mind. Major issue: whether opposing municipalities were entitled to cross examine the official of ministry who had presented the evidence. a) Rule: Where rights of citizen are involved and statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizens right to meet the case made against him by cross examination b) Reasoning: Statutory Powers Procedure Act does not assist in crossing the letter. Cross exam is vital element of adversarial system applied and followed in our legal system, including before admin tribunals, civil or criminal, it is procedural substructure upon which common law is built on. Has right to cross, and decision to exercise it is the holders, not the courts. (1) To determine if agency is independent, look at its statute, or relevant laws or common law. If on its face agency is held as being independent of executive, that is w/ functions independent of the executive branch, it remains that way for all purposes until legislature exercises its undoubted right to alter, by providing for policy directions for ex, position and procedure of agency (2) Court will require clear statutory direction to enable exec branch to enable executive branch of govt to give binding policy directions of an admin tribunal and to make such directions immune from challenge by cross examination or other objections. c) Held: appeal allowed 3. Charkaoui v. Canada: court highlighted cross exam, held statutory regimes to ascertain the reasonableness of security certificates, which provided for ex parte and in camera hearings and assessment of govt evidence, did not minimally impair Cs right not to be deprived of life, liberty, and security of person, except in accordance w/ fundamental justice. Court pointed to advocates whose cross of govt evidence assisted decision makers assessment of govt evidence and of govt claims that disclosure of the evidence to the affected party threatened national security. 4. Re County of Stratchcona No. 20 and MacLab Enterprises: Board directed lands owned by developer to be rezoned from agriculture to residential. Decision appealed, by group feeling that area unsuitable for residential b/c odors from nearby industries. Succeeded on ground that they had not been given opportunity to test all evidence by cross. Developer appealed. a) Rule: person appearing before quasi judicial body entitled to be heard, present his case, if not, denied natural justice. Entitled to weaken and destroy opposing case through cross, but if not cross, will not always amount to quashing case. If he is afforded equally effective method of answering case against him, (fair opportunity to correct any relevant statement brought forward to his prejudice), the requirements of natural justice will be met. Importance of cross examination will vary w/ nature of case being heard b) Reasoning: Based on rules of Planning Act, Dr. Bs report being admissible once board decided to accept, is unquestionable. Absence of author w/ consequent liability to cross examine him goes to the weigh to be given to it, not its admissibility. Respondents given fair opportunity to correct or contradict contents of report, cross exam is one method. Present case, Board invited written answers to matters contained in report. respondents took full advantage of opportunity afforded to them to correct/contradict statement prejudicial to their view. c) Held: appeal allowed.

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5. Re B and Catholic Childrens Aid Society of Metropolitan Toronto: Child welfare act, allowed peoples names on it (who were reported to abuse kids), to have name removed from list, hearing required for application, appeal can be made. Appellant appeals. Catholic childrens alleges that JB sexually molested 12 year old girl, daughter of JBs gf. Not enough evidence to charge so no charges laid after social worker June met with police. At hearing, social worker related her investigation to conversations she had w/ victim, victim did not testify, JB denied. Hearing officer found against JB based on hearsay evidence, admissible under Statutory Powers Act. a) Reasoning: If victim testified, she would have refused the abuse, her stories have been changing and contradictory. Could have crossed her for her previous contradictory statements. If she admitted previous statements being contradictory, they would not go to truth but her credibility, limited evidentiary value. Had the girl testified, it would be impossible to find against JB based on hearsay evidence. b) Held: JB was denied right to cross examine victim, admission of hearsay evidence did amount to denial of natural justice, hearing fell below minimum requirement of fairness. Appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have name in child abuse register for 25 years. Appeal allowed. K. The limits of the trial-type hearing: no notes. L. Post-hearing issues 1. Reasons: after Baker cases are requiring that reasons for decisions are given by admin, not every time, but when existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons. 2. The content of duty to give reasons: duty to give reasons means that adequate reasons must be given. Tribunal should show that it addressed itself to the parties arguments/significant questions of law relevant to case, and indicate basis for resolving the dispute. Test of adequacy: whether in light of issues in dispute and the arguments and evidence advanced by the parties at the hearing before the tribunal, the tribunals reasons are sufficient to enable the court effectively to scrutinize the decision. a) Lake v. Canada: 1) allow the individual to understand why the decision was made, and 2) allow the reviewing court to assess the validity of the decision (United States v. Cotroni). b) Tribunal not required to refer to every piece of evidence to be sufficient, must simply provide an adequate explanation for basis. c) Courts are liable to require more specificity when the tribunal rejected the only viva voce evidence in favor of hearsay or tribunals general impression of the witness. (give reasons for casting doubt on credibility if witness is the only un-contradicted witnDuess) d) Duty to give reasons should be more than just ticking a box, form letters typed before denying and then re-adjusting to the facts. Should actually bear the decision makers reasons. (1) Xu v. Canada: visa officer rejected student wanting visa to study, letter stating reasons was written before interview, given to him at conclusion. (bias and fettering of discretion) (2) Liang v, Canada: reject application for humanitarian and compassion considerations for Chinese citizen to be w/ his father. No reasons, just a tick on deny, held that duty applies when reasons requested and denied reasons - and could infer reasons from ticking of deny. All cases decided after Baker. (3) Suresh v. Canada: minister has duty to give reasons, declare will not be subject to torture, valid reasons for not disclosing info, why person is danger to country. After Baker courts moved away from symbolic notion of reasons, and gave Baker a substantive reading. e) VIA Rail Canada Inc. v. National Transportation Agency: agency held that via rails special and joint passenger tariff constitutes an undue obstacle to mobility of disabled persons. (1) Issue: whether agency erred in finding adequate reasons for 1)finding that 13-D tariff constituted obstacle to mobility of disabled. and 2) finding that such obstacle is undue (2) Rule: duty is only fulfilled if reasons provided were adequate. What are Adequate reasons is a matter to be determined in light of particular circumstances of each case. General rule is that adequate reasons are those that serve the functions for which the duty to provide them was imposed. (duty to give reasons reflect purposes served by a duty to give reasons). (3) Reasoning behind rule: the duty to give reasons - reasons provide assurance that representations are considered, basis for possible grounds for appeal, effectuate right of appeal, provide guidance to others who are subject to jdx, provide standard for future activities being measured. (a) Duty is not satisfied by reciting submissions and evidence of parties and stating conclusion. Must set out findings of fact and principal evidence upon which those findings were based. Must address major issues. Reasoning process must be set out and reflect consideration of main relevant factors. (4) Analysis: To hold agencys reasons adequate, must find that those reasons set out basis on which agency found that the existence of the tariff constituted an obstacle, and they reflect the reasoning process by which the agency determined that the obstacle was undue and include a consideration of the main factors relevant to such determination. (a)#1: did agency provide adequate reasons for finding that s. 13D of tariff was obstacle to mobility of disabled persons?

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i) Agencys conclusion not supported by sufficient indication of reasoning process engaged in by agency. reasons provide no intimation of what constitutes an obstacle to the mobility of a disabled passenger nor are they sufficiently clear. ii) How does it constitute an obstacle, did not define obstacle. Assuming that attendant is capable of assisting. Not explained why obligation of attendant w respect to personal needs on board of train does not constitute obstacle. Tariff did not pose obligation, merely provides that attendant is capable of providing assistance. Condition does not impose general obligation in every circumstance. iii) Conclusion: agency erred in law by failing to provide adequate reasons for its decision that tariff was obstacle. reasons (b) #2: did agency err in law by failing to provide adequate reasons for its conclusion that any obstacle imposed by tariff was undue? i) Undue: determined by context. Defined in light of the aim of the relevant enactment. Used to assess the consequences or effect if the undue thing is allowed. (presupposes that a rule or standard is in place that defines what is due. cannot substitute meaning for wrong unless stated what is proper, correct.) ii) Agencys reasons do not reveal sufficient indicators of the reasoning process it followed in interpreting term undue. No definition or any indication of a rule or standard defining undue. Should have considered aim of the transportation act in determine undue. iii) Agency required to balance interests such that the satisfaction of one interest doe snot create disproportionate hardship affecting the other interest. Consider all relevant factors and balance them w/ each other. Could include: (1) Difficulty of providing an escort who is capable of assisting disabled boarding (2) Difficulty of providing an escort who is willing to assist disabled board train (3) Importance to dignity of individual that they be able to travel w/ as much independence as possible and right to accessible travel iv) Factors for VIA, operational factors or economic factors. (pg. 345-346) v) Factors for VIA, operational factors or economic factors. vi) Rather than dealing with submissions un a reasoned manner, simply expressed the belief that w/ sufficient advance notice and consultation between VIA and disabled passengers, problems of accessibility could be avoided. (5) Held: reasons given by agency were inadequate in reasoning process or factors it considered. Appeal allowed. Matter remitted to National transportation agency. f) Newfoundland and Labrador (Treasury Board) v. Newfoundland and Labrador Nurses Union: Dunsmuir analysis requires consideration of reasons provided by the tribunal. Failure to give reasons or inadequate reasons would be decisive in the reasonableness assessment. Complete lack of or inadequate reasons could not be said to provide justification, transparency, and intelligibility in decision-making process required to satisfy reasonableness under Dunsmuir analysis. Reasonableness is the standard. Since reasons include adequacy thereof, constitute a component of reasonableness, a separate examination of procedural fairness is an unnecessary and unhelpful complication. 3. Effect of breach on the duty to give reasons: a) If decision maker erred in law misinterpreted law, decision may be set aside. b) If reasons deal w/ arguments and evidence, reviewing court may find tribunal failed to consider other relevant issues and set aside the decision. c) If tribunal refuses/fails to give reasons, may be required through mandamus d) Cases suggest that decision that is not accompanied by adequate reasons may be set aside, if not reasons at all, decision is null and void. Will generally remit decision back to tribunal, but there have been cases where court reversed and ended the dispute. e) Principal common law remedies available when courts exercise supervisory jdx over admin: certiorari, prohibition, mandamus, injunctions, and declarations are discretionary. f) One ground for refusing remedies: if court finds that no substantial wrong or miscarriage of justice has occurred, court may refuse relief and where decision has already been made, may make an order validating the decision, notwithstanding such defect, to have effect from such time and on such terms as court considers proper. g) Chevrolet Oldsmobile Ltd. v. Registrar of motor vehicle dealers and salesmen: failure to give reasons when legally required will not normally be viewed as a mere formal error that can be excused by a higher admin body or a reviewing court. h) If bad reasons or good, but court is satisfied that reasons are independent or alternative, then decision may be upheld on basis of the valid reasons. (1) International Longshoremens and Warehousemens Union: held that principal reason given by labor Board for decision was based on patently unreasonable interpretation of a provision of the canada labor code. However, decision was not set aside b/c board had given as an alternative reason one that was plainly correct.

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(2) Re DiNardo and the Liquor License Board of Ontario: board give three reasons for suspending tavern owner license: non compliance w/ fire safety regulations, the deplorable condition of the premises, and a lack of co operation on the part of the licensee w police dept. Court found last 2 reasons were defective: One reason baed on extraneous consideration, one either reflects this or alternative lacks any evidence in support, third is relevant and some evidence for it. Decision cannot stand, board cannot rely on cumulative effect of three findings. It has no based decision on each of these findings alternatively. i) Decision can be set aside and not the reasons, so that a party cannot ask a court to review the legality of the reasons if the decision ultimately was not adverse to the applicant. VII. CONTENT OF PROCEDURAL OBLIGATIONS - UNBIASED DECISION MAKER -- Ch. 5 A. Introduction: inquire into whether particular situation of the decision maker is such as to give rise to a sufficient risk that an impermissible degree of bias will in fact exist. Pecuniary or financial interests has always been enough to disqualify a decision-maker. Courts also look at tolerance for attitudes, prior involvements, relationships on the part of decision makers, will vary w/ statutory context in which the allegation of disqualifying bias is raised. B. Bias: the general test - Committee for Justice and Liberty v National Energy Board: the reasonable apprehension of bias: held by reasonable and right-minded people, what would an informed person, viewing the matter realistically and practically and having thought the matter through - conclude. (Real Danger of bias) 1. List of disqualifying conditions: a) Antagonism during hearing by decision maker toward a party of his counsel or witness b) An association between one of the parties and a decision maker c) An involvement by a decision maker in a preliminary stage of the decision d) An attitude of the decision maker toward the outcome. 2. Conditions a) Antagonism during the hearing: unreasonably aggressive questioning or comments about testimony (sexist, lack of sympathy). Balance struck is that the courts should not inhibit tribunals from controlling their proceedings to ensure that they do not become too protracted and that parties, witnesses, and their counsel keep to the point and generally conduct themselves appropriately. Must be firm, measured expressions of disapproval and even anger. b) Association between party and decision-maker: Convent of the Sarced Heart v. Armstrongs Point Association and Bulgin: member wife, quashed decision. Marques v Dylex: member of union (union certified) was lawyer before and member of firm that acted for union, but had no contact w/ firm over a year, no quashing. Ontario Hydro v. Ontario: held that board cannot hire counsel at an hydro rate hearing a lawyer who acted for hydro in annual rate hearings for certa years. Not b/c bias but because conflict of interest. CNG Transmission Corp v. Canada: held bias, among reps of parties was a former chair of the board (meeting with board). Former chair went through secretary of board to hold meeting and contact chair personally. c) Involvement of decision maker in earlier stage of process: (1) Bias be reason of association with a party and involvement in an earlier stage of the process (a) Committee for Justice and Liberty v National Energy Board: application by canadian arctic gas pipeline for construction of a natural gas pipeline. Chairman of board, was former president of canada development corp. arctic gas pipeline formed by study group of companies, including development corp. When he was president, he was involved in discussions and planning. Participants argued his commitment prior to created reasonable apprehension of bias. i) Issue: whether presiding member of a panel hearing an application under s. 44 can be said to be free from any reasonable apprehension of bias on his part when he had a hand in developing and approving important underpinnings of the very application which was eventually brought before the panel. ii) Reasoning: the fact that proposed application was later refined and revised did not make it one to which mr. crow was a stranger before it came to the board. (economic and financial stability). The vice of reasonable apprehension of bias lies in the fact that he participated in working out some at lease of the terms on which he application was later made and supported the decision to make it. (2) Decision-maker has in the same or another capacity already heard matter before tribunal (rehearing after successful review or sitting in appeal from decision participated in (or involved in investigation and decision to proceed with the matter being heard. (a) Township of Vespra v. Ontario: Barrie agrees with Innisful and decided not to proceed w/ application to annex the land in Oro, only land to annex was Vespra. Hearing began 1983 and members of board were members who had original decision. Vespra objected that presence created reasonable apprehension of bias, but hearings continued. Board refused to receive new evidence b/c deadline posed by Act would make decision invalid if not made by Feb 84. Refusal to hear evidence considered to be a denial of the obligation to give a hearing. i) Reasoning: statements could lead to reasonable person to conclusion that difficult to bring impartial mind on issue. Statements, made w/o jdx, contrary to natural justice based on evidence heard 7 years ago, no regard for

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change of circumstances, w/o evidence of population projects, govt policy having lost its relevancy, the reasonable apprehension of bias is inevitable. (3) Appeal from decision, person makes either initial decision or party of panel that hears the appeal in tribunal: (a) Law Society of Upper Canada v. French - person was prohibited by Act to be part of convocation after heard initial decision. Majority found a 2 step process in disciplines: 1) inquiry and investigation into the complaint by the discipline committee, results of which are embodied in a report to the benchers, 2) the consideration and disposition of the report by the benchers in convocation. They see no basis for benches being precluded from participating in convocation. Dissent found that this created reasonable apprehension of bias). (b) Emerson v. Law Society of Upper Canada: emerson found guilty of misconduct, recommended disbarment, which convocation invoked. Emerson sought review b/c committee did not proceed properly: report written by secretary, signed by assistant on behalf of chair. Law society argued b/c function of committee was to investigate/report, court should not review - s. 3.2(g) of Act. Reasoning: proceedings authorized by Act must be conducted judicially, at all stages. i) s. 3.2(g) does not apply to discipline committee b/c 1) proceedings before committee are first stage of single disciplinary proceeding culminating w/ final decision by convocation as to penalty w/o hearing de novo on findings and decision of the discipline committee. 2) discipline committee, makes decision that solicitor is guilty of misconduct, which s. 34 by the Act is not a matter that convocation is empowered to determine by the Act. C. Statutory authorization: defense used that action (reasonable apprehension of bias) was authorized by statute. 1. Brosseau v. Alberta (Securities Commission): B contends bias b/c chair received investigative report, was also designated to sit on the panel at hearing of the matter. Objects to chairmans participation at investigatory and adjudicatory levels. a) Rule: no one ought to be a judge in his own cause. Exceptions: where overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue (there must be some act beyond statutory duties to disqualify) b) Reasoning: The act contemplates the chairmans involvement at several stages. There is no evidence that s. 28 investigation was ordered by the commission. Commission must have the implied authority to conduct a more informal internal review. There is no evidence that chairs participation was beyond bounds of s. 11. c) Held: So long as chair did not act outside statutory authority and so long there is no evidence to show involvement about and beyond the mere fact of the chairs fulfilling his statutory duties, a reasonable apprehension of bias affecting commission as a whole cannot be said to exist. 2. Notes: s. 11 charter on applies to criminal matters, cannot apply to independent and impartial tribunal in admin, nor on double jeopardy grounds.. 3. Fourth category of reasonable apprehension of bias - attitude toward the outcome of the matter. a) E.A. Manning Ltd v. Ontario Securities Commission: no reasonable apprehension of bias, appeal dismissed. b) Quebec Inc. v. Quebec: tribunal must act in a judicial or quasi judicial fashion to be independent and impartial. Institutional bias: a well informed person, viewing the matter realistically and practically and having thought the matter through, would have a reasonable apprehension of bias in a substantial number of cases. (1) Conclusion: to hold a hearing does not amount to a prior determination of the validity of the allegations against the permit holder. The fact that Regie as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic. However, possibility that a particular director could. following the investigation, decide to hold a hearing and could then participate in the decision making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. A form of separation among the directors involved in the various stages of the process is necessary to counter that apprehension of bias. Held: appeal allowed. c) MacBain v. Canada (Human Rights Commission): Issue: whether bill of right applied. Argued, statute did not conform to principles of fundamental justice. Statute allowed official to investigate, once complaint substantiated, could be filed with tribunal from pane of prospective members maintained by Gin council, hold hearing and it find that complaint substantiated, power to make various remedial orders.s (1) Held: no one will be a judge in his own case, and selecting judges in your own cause is same thing. there is a direct connection btn prosecutor of the complaint and decision maker ; after deciding complaint has been substantiated, prosecutor picks tribunal which will hear the case. (appeal allowed). d) Notes: R.v.Lippe: institutional bias rule - whether fully informed person would have reasonable apprehension of bias in substantial number of cases. If negative answer, to prevail, prove reasonable apprehension of bias in your case. D.Attitudinal bias

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1. Paine v. University of Toronto: Facts: tenured senior member submitted negative assessment of Ps merits as an instructor/artist, concluding he was not acceptable for tenure, -- this member was appointed to the Committee to determine tenure. Reasoning: this constituted unfairness, theres no way he will review objectively based on past. Ones peers must be fair in assessment and judging. a) Issue: has P been treated w/ unfairness as to call for court intervention b) Rule: courts should leave domestic disputes to be settled by methods agreed on by the parties. c) Court reasoning: members of committee are tenured members of staff, have formed general opinions about prof, through associations, does not act as tribunal. No complaint about procedures in hearings, only the results; parties contractually agreed to resolve domestic disputes in a certain way. No manifest unfairness or flagrant violations of procedural fairness at a level where court intervention needed. Complaints were thrashed out before tenure committee and rejected before coming to court. d) Held: no court intervention needed, allow committees appeal w/ costs, dismiss application w/ costs. 2. Great Atlantic & Pacific Co. of Canada v. Ontario (HR Commission): Professor at uni for years, published sex discrimination articles. Filed complaint against uni for doing it, then commission elected her to serve as member of steering committee. Later wrote letter to have name removed from complainants and ended membership in steering committee. a) Rule: analysis of relevant facts by reasonable and right minded person who was well informed as to issue (to determine reasonable apprehension of bias) b) Reasoning: if shes on the board, to vindicate personal complaint, no neutrality. Test not met if shes on the board. Application of union allowed and proceedings before board quashed, minister to appoint another board to adjudicate remaining complaints against Union of requested to do so. E. Pecuniary and other material interests: direct pecuniary or other material interest disqualifying an adjudicator or decision maker automatically. 1. Energy probe v. Canada (atomic energy control board): whether directness is the appropriate standard to apply in deciding whether material interest in disqualifying, if so, what constitutes a direct interest. a) Issues: (1) Does doctrine of fairness in Nicholson apply to licensing function of atomic board and does the doctrine include requirement of lack of bias on part of board members? (2) Did Olsen have a pecuniary interest in the outcome of the decision sufficient to constitute pecuniary bias as that terms defined? (3) Does Energy probe have standing to challenge boards decision? b) Rule - Fairness doctrine: licensing function of AECB is administrative not judicial/quasi jud, so doctrine of fairness in Nicholson applies.g Requirements of fairness vary depending upon exact nature of administrative function to which being applied. Duty must include requirement of unbiased decision maker. c) Rule - Direct pecuniary bias: direct pecuniary interest, no matter how trivial, will constitute bias. d) Reasoning: no direct pecuniary interest at date of hearings, no certainty of cables being sold in life time of new license, only a reasonable expectation of pecuniary gain as a result of approval of license, no direct and certain relationship w/ hydro at date of hearing that could hold pecuniary benefit. e) Held: appeal dismissed. f) Concurrence Rules: no one should be their own judge in their own cause, and tribunal should be independent, disinterested, and impartial g) Concurrence Reasoning: indirect and uncertain vs. direct and certain pecuniary interest. If indirect, its not legally a pecuniary bias. (1) Do not give such strict and narrow definition to direct. (2) Do not see pecuniary bias and reasonable apprehension of bias as two subcategories of bias. Distinction is between pecuniary and non-pecuniary interests. Pecuniary interest should be more immediate and certain and the non pecuniary interest must give rise to very substantial grounds for apprehending lack of objectivity. Mr. Os interest was too remote and uncertain to have been a cause for his disqualification. F. Variations in standards: standard of what constitutes disqualifying bias may dramatically vary with context. 1. Old St. Boniface Residents Assn. Inc. v. Winnipeg (City): a) Bias:content of rules of natural justice and procedural fairness depend on factors, terms of statute pursuant to which body operates, nature of particular function of which it is seized and type of decision it is called upon to make. Duty rules no longer depend on whether tribunal is judicial, quasi judicial or executive, instead based on circumstances under which tribunal operates. (a) statute allows hearing before committee of council. Council does take stand for/against development. Legislature could not have intended for rule to apply to council w/ same force as other tribunals (degree of prejudgment that would disqualify on basis of reasonable apprehension of bias.

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(b) Distinguish partiality by reason of pre judgment vs. by reason of personal interest. Some degree of prejudgment is inherent in role of councillor. (c) Council required to have interest in matters that come before them beyond interest they have in common w/ other citizens in municipality. (d) Legislature did not intend that to have hearing before body that already made a decision that it irreversible. (2) Rule: member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well informed person would conclude that the interest might influence the exercise of that duty. (conflict of interest) (a) Must establish prejudgment of matter, to extent that any representations that vary w/ view, would be futile, position incapable of change. If established, disqualification of councillors. b) Application to this appeal: councilor Savoie appeared before committee and spoke on behalf of developer. By it self, this does not indicate that hi mind could not have been changed. He previously supported the development on its merits. Error to apply test, b/c no personal relationship w/ developer, purely a pre judgment case. Council did not pre judge the case to extent that he was disqualified. (1) Test: would a reasonably well informed person consider the interest might have an influence on exercise of officials public duty? c) Held: appeal dismissed. 2. Save Richmond Farmland Society v. Richmond (Township): (concurrence opinion) a) Issue: what standard of fairness is owed to the participants in the hearing process b) Rule: amenable to persuasion test - stay amenable to persuasion, if a truly convincing argument is presented to them. Decision maker is entitled to bring a closed mind to this decision making process, provided that the closed mind is not the result of corruption, but of honest and strongly held opinions. c) Reasoning: there must be open minded ness. Legislature will have been aware of fact that alderman who are called to decide by laws will run for office on the strength of their support/opposition in these measures. If this guarantees that zoning application are decided before they even reach the hearing stage, then legislature should iron out this inconsistency, not courts. (1) Meeting is policy driven; Rule: standard of fairness mandated by s. 956 places on council members little more than the obligation of ensuring that due notice is given to those who do not stand to be affected, and of affording them a reasonable opportunity to express their views. (2) Community plan, or zoning by law represents a general statement of broad objectives and policies of local govt and adoption of measures is less judicial process than legislative one. Alderman who participate in this should not be viewed as judges, but as elected representatives who are answering concerns of the electors (constituents) (3) Because decision making process is in legislative spectrum, threshold for establishing bias is high. 3. Newfoundland Telephone Co.v. Newfoundland (Board of Commissioners of Public Utilities): a) All past rules: admin boards that are adjudicative in functions will be expected to comply w/ standard applicable to courts - no reasonable apprehension of bias w/ regard to decision. (1) Boards that deal w/ planning and development whose members are municipal councilors - standard is lenient: to disqualify must show that there has been a pre judgment of the matter to such an extent that any representations to contrary would be futile. (2) Boards that deal with policy, comparable to municipal councilors/ b) Rule for this case: at investigative stage closed mind test applicable. Once matters proceed to hearing, higher standard applied. Procedural fairness required board members to conduct themselves so that there could be no reasonable apprehension of bias. (Application of test flexible, not as strict for policy admins, as opposed to adjudicative admins) c) Reasoning: there is merit in appointing representatives of interested sectors of society. Member of board should not be susceptible to charge b/c of expression of strong opinions. Decision must be based on decision before them. (1) Board is in legislative spectrum, deals with policy issues, investigates charges, public hearings (2) During investigate stage, wide license to be given to board members to make public comment, as long as comments do not indicate mind so closed that submission would be futile, they should not be subject to attack based on bias. (3) If state that no matter what evidence is disclosed, his mind/position will not change = closed mind. Even at investigatory stage, such statements constitute basis for raising issue of apprehended bias. Wells statement 3 days after hearing date set did this. (4) Once at hearing stage, members need greater discretion. Statements made during and subsequent to hearing, would lead reasonable person appraised of the situation an apprehension of bias (and a closed mind). (5) Entitled to procedural fairness once order directed of hearing given to utility. Damage created by bias is a denial of a fair hearing which cannot be remedied. Denial of fair hearing = invalid decision. d) Held: hearing proceeded unfairly and was thus invalid. Order of board void. Appeal allowed.

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4. Pelletier v. Canada (AG): issue: reasonable apprehension of bias on the commissioners part? a) Rules: procedural fairness requires decisions be made free from reasonable apprehension of bias by impartial decision maker. Standard of impartiality depends on role and function of decision maker. During investigative stage, close-mind standard, during hearing stage, reasonable apprehension of bias standard (higher standard). b) Determinative test: whether a reasonably well informed person viewing the matter realistically and practically would conclude that there is a reasonable apprehension of bias. c) Reasoning: falls somewhere in the middle of Newfoundland telephone spectrum between middle and high end. 1) commissioner not in a position to conclude that program was run in a bad way and catastrophic w/o hearing from all govt officials from all levels who were set to testify. 2) comments who it was pre functioned, prejudged, before submissions/evidence received. (1) Inappropriate comments, seduced by media lime light. (2) Duty is to remain impartial when open mind that is amenable to persuasion. When evidence all heard, after deliberating on evidence that decision maker is to form conclusions and issue a judgment or report on basis of conclusions. d) Conclude: informed person viewing realistically and practically and having though the matter through would find a reasonable apprehension of bias on the part of the commissioner. (statements to media, release of report, prejudged and not impartial toward applicant). G. Independence: adjudicative freedom of individual members. Relative lack of security of tenure has an impact on their capacity for independent judgment. 1. Alex Couture Inc. v. Canada (AG): institutional impartiality, for purposes of 11d must form part of the constitutional guarantee b/c constitutional guarantee of an independent and impartial tribunal has to be broad enough to encompass this. a) Rules: reasonable apprehension of bias. Added perception of reasonable and informed person must be of whether tribunal enjoys essential objective conditions or guarantees judicial independence (security of tenure, financial security, institutional independence) b) Security of tenure: whether until retirement, for fixed term or task, that is secure against interference by executive or other appointing authority in a discretionary or arbitrary manner. (lay members of tribunal are secure against interference by g in council) c) Financial security: right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence. (tribunal memberss salary was not subject to interference) d) Institutional independence: no reason to apprehend that tribunal would not feel totally free to render decisions and it therefore has guarantees of independence required for the purposes of s. 11 (d) Charter. e) Guarantee of impartiality: apprehension of an informed person, viewing the matter realistically and practically, and having though the matter through. Test: (1) Factors: having regard to factors (not limited) to nature of occupation and parties who appear before type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases? (2) If answer is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt w/ on a case by case basis. (a) If yes, occupation is per se incompatible w/ functions of a judge. Consider what safe guards are in place to minimize the prejudicial effects and whether they are sufficient to meet the guarantee of institutional impartiality under 11(d) Charter f) Held: tribunal meets all requirements of constitutional guarantee of independent and impartial tribunal under 11d. Mechanism adopted ensures fair hearing in accordance to principles of fundamental justice. 2. Canadian Pacific Ltd. v. Matsqui Indian Band: lack of structural independence, tribunals established subordinate legislation. Principle of independence is contingent. What is demanded varies depending on nature of issues tribunal deals w/. Case bears on timing and context of consideration of such challenges. a) Concurrence Lamer CJC: structures created by regulations cannot operate w/o compromising the independence of the appeal structures. (1) Rule: Test for institutional independence must be applied in light of the functions being performed by tribunal. Level of institutional independence (security of tenure, financial security, administrative control), depends on nature of tribunal, interests at stake, indices of independence (oaths in office) (a) Valente principles considered in light of nature of the appeal tribunals, interests at stake, other indices of independence, to determine whether reasonable and right minded person viewing the whole procedures as set out in assessment by laws would have a reasonable apprehension of bias on the basis that the members of the appeal tribunals are not independent. (2) Conclusion: reasonable and right minded person viewing whole procedure in assessment by laws wold have reasonable apprehension that members of the appeal tribunals are not sufficiently independent. Factors that lead to conclusion: (a) Complete absence of financial security (b) Security of tenure completely absent or ambiguous

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3.

4.

5.

6.

7. 8. VIII.

(c) Tribunal members are being asked to adjudicate disputes pitting interests of the bands against outside interests. Must determine interests of the people, bands, to whom they owe their appointments to. (3) Held: Appeal tribunals are not adequate alternative remedy and would therefore should have undertaken judicial review as sought by respondents. b) Concurrence Sopinka J: concerns might be laid to rest by the way in which the tribunals operate in practice. (1) impartiality test - whether reasonable and right minded person would have a reasonable apprehension if bias. Would also see if reasonable person will have the benefit of knowing how the tribunal operates in actual practice. institutional independence must be considered objectively, does not preclude considering the operation of a legislative scheme which creates an admin tribunal... c) Held: appeal dismissed Bell Canada v. Canadian Telephone Employees Assn.: Held that high degree of independence was required by Bill and the common law due to tribunals adjudicative functions, the tribunals role in implementing govt policy as part of a legislative scheme for rectifying discrimination meant that the applicable standard of independence was lower than that of a court. Court found neither guideline power nor power to extend appointments undermined the independence of the tribunal or its members. McKenzie v. Minister of Public Safety and Solicitor General, et al.: Bc supreme court held that constitutional guarantees of judicial independence, as a reflection of the rule of law, extended ti residential tenancy adjudicators-- their functions were highly adjudicative, and whose jdx had been taken directly from courts of civil jdx, should also enjoy unwritten guarantees of independence. Saskatchewan Federation of Labor v. Saskatchewan: new premier/govt passed order in council terminating terms of office of the chair and two vice chairs of Labor Relations Board - b/c lacked confidence in willingness or ability to effect policy choices in proposed amendments. Ct of appeal held that it was authorized under s. 20 Sask Interpretation Act. Unions did not challenge order in councils validity or validity of s. 20 on basis that they violated unwritten constitutional principles of independence. 2747-3174 Quebec Inc v. Quebec: Security of tenure and institutional independence. a) Security of tenure: removal must not be at pleasure of executive. Rule - Valente factors: judge removable only for cause, cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. Tenure, whether until retirement, for a fixed term, or for specific adjudicative task, that is secure against interference by executive or other authority in discretionary or arbitrary manner. (held, directors have security of tenure) b) Institutional independence: Rule - Valente - judicial control over the admin decisions that bear directly and immediately on the exercise of the judicial function. (Here, factors do not raise reasonable apprehension w/ respect to institutional independence of the Regie, its not unusual for admin agency to be subject to general supervision of member of executive w / respect to its management) c) Held: appeal allowed Notes: for admin tribunal, as long as members do not serve purely at pleasure, there will be sufficient security of tenure. Summary of Linda Keens Dismissal

CONTENT OF PROCEDURAL OBLIGATIONS - Ch. 6 Institutional Decisions A. Delegation 1. Willis, Delegatus Non Potest Delegare; a delegate may not re-delegate (to the extent an authority may permit another to exercise a discretion entrusted by a statute to itself). Delegation is conferring of an authority to do things which otherwise that person would have to do himself. Delegation is permissible depending on interpretation of statute that confers the discretion. a) A discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but intention may be negated by contrary indications found in the language, scope or object of the statute. b) Reading personally or any person authorized by it into statute, is based on scope or object to statute. 2. Vine v. National Dock Labour Board: a) Rules: word quasi means that the functions so described can vary from those which are almost entirely judicial to those in which the judicial constituent is small indeed. Must consider importance of duty which is delegated and the people who delegate. b) Reasoning: disciplinary powers, whether judicial or or not, cannot be delegated. Here, duty is to consider whether a man will be outlawed from the occupation of a life time. c) Held: duty is placed on the local board. If one allows principle of delegation it would then be possible for board to delegate its functions to a committee which was not a microcosm of itself but a body on which employers and employed were no longer equally represented. Appeal dismissed (appeal by board) 3. Other rule: principle of non delegation also requires that all members of the tribunal hearing a dispute participate in a substantive sense in the making of the decision. B. Deciding without hearing: general principle, only those members of an agency who hear a particular case may decide it, but should be applied w/ sensitivity to the administrative and legal contexts in which impugned decision was made. Rationale is that person is denied an

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adequate opportunity to influence the decision if unable to address directly those who make or participate in making it. (cannot hear half of the hearings) 1. Delegating duty to hear a) Local Government Board v. Arlidge: Viscount Haldane LC: to try to extend boards duty beyond and to insist that he and other members of the board should do everything personally would impair efficiency. Not only is he at liberty but also compelled to rely on assistance of his staff. When board directed to dispose of an appeal that does not mean that any particular official of the board is to dispose of it. (1) Lord Shaw: entitled to know judge, to individualize board, and demand that person whose discovered shall give him an audience on the whole material available, including result of public local inquiry and the report made by the boards inspector. (2) Notes: reluctance of courts to apply the non delegation principle to exercise by civil servants of statutory power conferred on their minister - ministers remain legally and politically accountable for decisions made in their name by dept officials. However, some decisions exceptionally require ministers personal decision. b) Jeffs v. New Zealand Dairy Production and Marketing Board: board did not delegate to the committee the duty on deciding on zoning application in its letter. Board made committee to investigation question of supply and report back to the board. Not entitled to hold a public hearing, which it did, and was not charged w/ duty of collecting evidence for consideration by the board. Board did not hear oral witnesses or written submissions, nor was there summary of evidence in report. (1) Committee was not appointed by the board do do this, nor was it asked by board to receive evidence for transmission. Its report to board did not state what the evidence was, and board reached its decision w/o consideration of and in ignorance of the evidence (based solely on the report). Board failed to hear interested parties as it was under an obligation to do in order to discharge duty to act judicially in the determination of zoning applications. (2) Held: appeal allowed 2. Consultations among agency members: issue: whether, and if so to what extent, the duty of fairness precludes members of an agency who heard a case from discussing it with other members of the agency after the hearing had ended, but before they have rendered their decision? a) International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd: facts: after hearing members of board discussed case w/ other members of the board at a full board meeting and then gave and then gave a decision upholding current test. (1) Sopinka J Dissent reasoning (a) Issues: a) he who decides must hear, b) the right to know the case to be met. (b) Reasoning: difficult to respond to arguments made at meeting b/c no access. Appearance of injustice. Full board hearing deprived appellant of full opportunity to present evidence and submissions and constituted a denial of natural justice. (c) Rule: party to admin proceeding hearing is entitled to meaningful hearing in the sense that the party must be given an opportunity to deal w/ the material that will influence the tribunal in coming to its decision, and to deal w/ it in the presence of those who make the decision. (2) Gonthier J Majority Reasoning: (a) Issue: whether disadvantages involved in practice are sufficiently important to warrant a holding that it constitutes a breach of the rules of natural justice or whether full board meetings are consistent w/ these rules provided that certain safe guards be observed? (b) Reasoning: there is a difference between full board hearing (representations by parties) and full board meeting (no parties invited). Impractical to hold full board hearings to solve important policy issues. i) Rationales for full board meetings: 1) importance of benefitting from the acquired experience of all members. Rules of natural justice should not discourage but reconcile. 2) large number of persons who participate in board decisions create possibility that different panels will decide similar issues in a different manner. ii) Judicial independence of panel in full board meeting: members of panel who participated in decision, all heard evidence and arguments; participation of board members in meeting does not amount to participation in final decision. (1) Discussions w/ colleagues does not constitute infringement of panel members capacity to decide issues at stake independently. Decision makers are entitled to change their minds, whether b/c of discussions or swayed by majority opinion of colleagues. Nothing in Act suggests that Chair can invoke his opinion on members. (2) No minutes kept, no votes taken, attendance is voluntary, presence not recorded, each can hold their own opinion (dissent).

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(3) Danger of fettering judicial independence is not sufficiently present to give rise to a reasonable apprehension of bias of lack of independence. No informed person viewing matter realistically and practically and having though the matter through. iii) Full board meetings and audi alteram partem rule (fair opportunity to answer case against them(: breach of natural justice b/c allow persons other than parties to make representations on factual issues when they have not heard the evidence. Could discuss facts at meetings too. (1) It is possible to discuss policy issue arising from body of evidence. Only breach of rule arises when new policy/argument proposed at full board meeting and decision is rendered on the basis of this policy or argument w/o giving the parties an opportunity to respond. (2) No evidence here that this is case where new policy unknown to parties was introduced or applied to case. No right to repeat arguments every time panel discusses the case. (3) Rule Consultation process does not violate rule provided that factual issues are not disclosed at full meetings and that parties are given a reasonable opportunity to respond to any new ground arising from such a meeting. (c) Conclusion: rules of natural justice must be flexible to take into account institutional pressures faced by modern admin tribunals as well as risks inherent in such a practice. Safeguards attached to meeting are sufficient to allay fear of violating rules of natural justice; provided parties be advised of new evidence or grounds and given opportunity to respond. Balance achieved btn rights of parties and institutional pressures of board are consistent w/ nature and purpose of rules of natural justice. (d) Held: appeal dismissed. b) Tremblay v. Quebec (Commission des affaires sociales): look at other notes, case was confusing and hard to read. (1) Confidentiality of deliberations: (2) Legality of the institutionalized decision making established by commission: the fact that president can refer matter for plenary discussion may be a constraint on decision making. voting procedure may exert undue pressure on decisionmakers. Pressure may be infringement on litigants right to decision by an independent tribunal. (3) Part played by the president in the case at bar and appearance of bias: (4) Nature of first decision (5) Held: appeal dismissed. c) Ellis-Don Ltd . Ontario (Labor Relations Board): claimed breach of natural justice and violation of rules governing institutional consultations. (1) Reasoning: appellant could not examine officers of board on process that had been followed. Court cannot reverse on presumption of regularity of admin b/c of a change in reasons for decisions esp when change is limited on its face to questions of law and policy. Contrary approach would deprive admin tribunals of independence that principle of deliberative secrecy assures them in decision making. Would also jeopardize institutionalized consultation proceedings that have become more necessary than never to ensure consistency and predictability of decisions of admin tribunals. (2) Held: appeal dismissed. (3) Dissent: cannot w/ assistance of legislature deny person access to relevant info and rely on absence of same info as conclusive answer to appellants complaint. Board cannot claim failure of party to obtain additional evidence that the Board itself has fought to withhold is a complete answer to the claim. Appellant made prima facie basis for review which in this case Board chose not to rebut. C. Agency counsel: secretaries or counsel, who may be lawyers in private practice. Cannot have overlapping functions. Duty of fairness may impose on agencys ability to seek assistance of counsel in the discharge of their adjudicative functions 1. At the hearing: counsel may overstep role of advisor - by making rulings, raising questions or questioning witnesses, deciding adjournments. Could give rise to bias on ground that reasonable observer might conclude that someone other than statutory authorized. Degree of intervention depends on nature of proceeding. Adversarial proceeding, less active intervention on part of tribunal counsel to be allowed under duty of fairness. 2. The preparation of reasons: have little time to write reasons or little experience writing, and drawing legal conclusions from evidence. Question is, how far can they take advantage of their staff and counsel in preparation of reasons for decision w/o breaching duty of fairness - the delegation doctrine and apprehended bias? Or to what extent is the giving of reasons duty must be performed personally by statutory decision makers rather than institutionally? a) Law: 1) decision made must be that of the tribunal members themselves. 2) the reasons for decision must be in substance those of the tribunal members, not their clerks or their counsels. b) Problems w/ insisting agency members write their own reasons for decision: 1) courts should not be overly critical of language used, may not be lawyer and overlook ambiguities. 2) courts have permitted tribunals to seek assistance of counsel. (but it is impermissible for tribunal to ask for help from counsel for one of the parties - would give rise to a reasonable apprehension of bias.

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c) Khan v. College of Physicians and Surgeons Ontario: appealed on ground that committee breached duty of procedural fairness by permitting its counsel to play a significant role in preparation of its reasons for decision as to create a reasonable apprehension of bias. (1) Rules: committee is entitled to legal assistance of its own counsel during the hearing. (a) Reasons for decision made by committee must be those of the committee. (b) Committee may look to outside sources for assistance in the preparation of its reasons. (2) Reasoning: no evidence to support assertion that counsel for committee provided legal advice to committee during drafting process. Someone elses explanation of decision is not substitute, w/o reasons of committee party cannot know why decision was made or who made the decision and right of appeal becomes illusory. (a) Involvement in writing of reasons was not mandatory and entirely in control of committee, could not have had coercive effect. Nothing shows compromise of independence or impartiality of committee. Neither did it undermine Ks ability to know case made against him or present his own case. (b) Merely assisted, no evidence of him being an advocate. No legitimate concern as to fairness of proceedings arise from counsels very limited involvement in the reason-writing process. (3) Held: appeal allowed: 3. Reasons review a) Bovbel v. Canada (minister of employment and immigration): policy of board to submit reasons for decision to legal services branch (lawyers) prior to putting their reasons in final form. (1) Reasoning: decisions of tribunal must be rendered by those parliament conferred power on unless legislation impliedly/expressly provides otherwise, meet requirements of natural justice. When practice does not violate natural justice and does not infringe on their ability to decide according to their opinion even though it may influence that opinion, it cannot be criticized. (a) Do not understand how boards policy was unobjectionable. Nothing wrong in making comments known to other members of board who asked to concur in the reasons. Fair reading of doc shows that legal advisors were not expected to discuss findings of fact made by members but merely if there was a factual inconsistency in reasons, to look at it in the file to determine how inconsistency can be resolved. (2) Held: appeal allowed. D. Agency guidelines: guidelines used in interpretation of enabling legislation and exercise of statutory discretion. Can be used to formulate general and comprehensive approach to problem w/o being confined by facts of particular dispute. Concerned w/ how duty of fairness limits effective use of guidelines, tension btn due process value that decision makers should be independent and bureaucratic (decisions should be coherent, thoughtful, consistent). Guidelines should be published. 1. Immigration and Refugee Board of Canada, Policy on the Use of Chairpersons Guidelines: 2. Thamotharem v. Canada (minister of citizenship and immigration: issue is guideline 7 unauthorized by para 15(1)(h) b/c it is a fetter on RPD members exercise of discretion in conduct of hearings? a) Reasoning: adjudicators should strive to ensure that similar cases receive the same treatment. Soft law (policy statements, guidelines manuals) admin decision makers may not apply them like they are law, if they do, decision may be set aside on ground that discretion was unlawfully fettered. can only make decisions using hard law (regulations or statutory rules) (1) Is guideline 7 and unlawful fetter on members discretion? it is a recommended but optional process. The fact that its intended to establish how discretion will normally be exercised is not enough to make it unlawful fetter, long as guideline does not preclude possibility that decision maker may deviate from normal practice in light of particular facts. (2) Not enough evidence establishing on balance of probabilities, that members rigidly apply the standard order of questioning w/o regard to its appropriateness in particular circumstances. (3) evidence that board monitors deviations from standard order of questioning does not create kind of coercive environment which would make 7 an improper fetter on members exercise of their decision-making powers. No evidence that any member had been threatened w/ a sanction for non-compliance b) Conclusion: evidence does not establish that a reasonable person would think that RPD members independence was unduly constrained by guideline 7. IX. SUBSTANTIVE REVIEW MATERIALS: A. Substantive Review Introduction: historical pragmatic and functional perspective changed in Dunsmuir to standard of review analysis, but factors remain the same. Two standards: correctness and reasonableness. Case clarifies that where existing jurisprudence determines in a satisfactory manner the applicable SOR then should be applied w/o further consideration of various factors in the SOR analysis. Sometimes it is unnecessary for a court to review all of these factors, such that the SOR analysis may be assumed to apply automatically based on nature of the question at stake.

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B. Privative (preclusive) Clauses and Rights of Appeal: statutory provisions by which legislature limits the scope or intensity of judicial review of a statutory decision maker. Courts distinguish between full or strong privative clauses, and weak privative clauses. 1. Full: uses broad language to preclude any form of review by a court, while also establishing that the decisions of relevant actor are final and conclusive where no appeal lies. 2. Weak: state that decisions of decision-maker are final and conclusive or that decision maker has the sole or exclusive jurisdiction in certain matters, w/o expressly precluding the role of the courts from any review of the decision maker. 3. Interpretation of private clause may depend on whether other provisions of statute provide for an appeal to a court from decision maker on questions of fact, law, mixed fact and law, or another category (combination of categories). Legislature may have said to authorize and to have circumscribed the courts role, leaving disputing parties and court to sort out any tensions or ambiguities arising from the statute. 4. Privative clause cannot oust authority of superior courts to carry out judicial review of constitutional issues or authority to ensure that an admin actor has statutory authority that it claims and that it is acting w/n the bounds of its authority (intra vires). 5. Variation in terms of privative clauses and rights of appeal, thus, examine statute under which decision has been taken as to determine the appropriate route for any statutory appeal and to assess the likelihood that a court will show deference to the decision-maker. Based on Dunsmuir: review past cases in which comparable decisions have been reviewed by a court to locate existing jurisprudence on the SOR. C. Constitutional limits on Privative Clauses: Creview v. Quebec: constitution guarantees authority of courts to review decisions of admin agencies for errors of law or jdx and for procedural unfairness. Restraints ability of parliament or of prov legislature to limit the scope of judicial review. Legislature cannot take this away: cannot oust courts power to review decision of admin agency or its enabling statute, on ground that either is beyond the constitutional capacity of the legislature. Absence of express separation of power provision, right to judicial review of admin action should be implied in the constitution based on juricature provisions of Con Act 1867 ss 96-101; D. Courts and Tribunals: Constitutional background: Hogg, Constitutional Law of Canada 1. Re Residential Tenancies Act: 3 step approach to resolution of s. 96 challenge to an admin tribunals powers: a) Historical inquiry into whether impugned power broadly conforms to power exercised by a superior, district or county court at confederation. (if Yes, go to #2) No would resolve issue in favor of validity of power. b) Inquiry into whether the impugned power is a judicial power. (if Yes, go to #3) (or administrative or legislative) Judicial if: (1) There is a private dispute between parties (2) That must be adjudicated through the application of a recognized body of rules (3) That must be adjudicated in a manner consistent w/ fairness and impartiality. c) Inquiry into whether the power in its institutional setting has changed its character sufficiently to negate the broad conformity w/ superior, district or county court jurisdiction. (see if it broadly confers s. 96 power or s. 96 functions) 2. Approach above has been criticized, province want an amendment of s. 96. Perhaps, approach should be to give admin agencies functions of s. 96 court but have the decision remain subject to superior court review? E. Statutory Removal of Judicial review 1. Crevier v. Quebec (Attorney General): (after CUPE) concerns limits of prov power to create an admin tribunal w/ authority over matters conventionally dealt with ss. 96-101 courts. (w/ full privative clause). Constitutionality of privative clause challenged. a) Issues: 1) trib given no function other than that of a great trib of appeal in respect of all professions by Prof Code, therefore, impossible to see if its final appellate jdx as part of an institutional arrangement by way of a regulatory scheme for the governance of the various professions. 2) effect upon s 96 of a privative clause of a statute which purports to insulate a provincial adjudicative tribunal from any review of its decisions. 3) impact of Farrah case. b) Reasoning: where prov purports to insulate one of its statutory tribunals from an curial review of its adjudicative functions, the insulation encompassing jdx, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court. (below correspond to issues above) (1) Where questions of law have been specifically covered in a private enactment this court has not hesitated to recognize this limitation on judicial review has serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. It has balanced competing interests of prov legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the BNA (2) It cannot be left to prov statutory tribunal on face of s 96 to determine the limits of its own jdx w/o appeal or review (3) No difference here and Farrah.In Farrah authority granted to appeal tribunal was to exclusion of any other court. In both cases, there was a purported exclusion of reviewing authority of any other court, whether by appeal or by evocation. c) Conclusion: Upheld private clause against s. 96 attack, but read it narrowly, permitting correctness review for challenges based on division of powers, and patent unreasonableness review for matters w/n jdx. Constitutionalized judicial review for judicial question, even in the face of a privative clause, thereby placing the matter beyond reach of legislative amendment. F. The preliminary question doctrine: distinguishing questions of law that were w/n decision making authority, from those that were preliminary to exercise of agencys jdx. Courts were allowed to intervene in admin process if found condition precedent to agencys exercise

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of jdx not satisifed. Agencys determinations of prelim questions were subject to review by courts on basis of correctness. Question of law w/n agencys jdx immune from judicial review. 1. no longer part of admin law after Dunsmuir. Decision making power of admin agencies is legally limited and that it is function of the courts to ensure agencies do not exceed the limits imposed by the legislature on their authority to decide. Despite the presence of a privative clause, the courts must determine whether the agency correctly interpreted any provision in its enabling statute that confers, limits, or describes its jdx. Jdx limiting clauses are to be identified by SOR analysis as a whole and not by formalistic approach to statutory language that followed from the preliminary question doctrine. G. Wrong questions and irrelevant considerations: Anisminic (English case): held that decision of admin tribunal could be set aside as being outside its jdx if in the course of making the decision, tribunal had asked itself the wrong question, taken into consideration legally irrelevant factors, or ignored factors that it was legally required to consider. Metropolitan life insurance (canada): interpretation of an agencys enabling statute was a matter for the courts and despite a strong privative clause the agencys decision could be set aside if the court thought it was based on an error of law. including a misinterpretation of the agencys enabling statute. 1. Problems with Anisiminic: 1) denying that admin agencies have the authority to decide questions of law conclusively in effect nullifies clearly worded privative clauses. 2) Reasoning in Metropolitan assumes that statutory language always has a determinate meaning and that the courts are uniquely qualified to divine the correct interpretation. Once statutory interpretation is a legalistic exercise, the specialist exercise of agency is irrelevant. H.The origins: 1. CUPE v. New Brunswick Liquor Corporation: called for restraint by courts when reviewing admin decision makers, even in matters of statutory interpretation. Facts: union filed complaint that employer is replacing picking employees w/ management personnel, contrary to s. 102(3)(a) of Public Services labor Relations Act. Act had privative clause that did not allow review by any court. a) Issue: The issue before the Supreme Court was whether Board's decision was sufficiently incorrect to warrant overturning in the presence of the privative clause. b) Arguments: The Liquor Corporation argued that the Act should be interpreted as only preventing the replacement of employees "with any other employee". Under the Act, the definition of "employee" excluded managers, and their acts were therefore justified. CUPE argued that the Act should be read so that replacement "with any other employee" applied only to permanent arrangements, and that temporary replacements were forbidden entirely even by non-employees. c) Reasoning: patent unreasonableness standard. (1) Statutory language ambiguous, can have numerous interpretations. (2) It is not the responsibility of the court to resolve statutory ambiguity in the case. This is a matter for the board, using its understanding of the collective bargaining system and its labor relations sense acquired from accumulated experience in the area. It was for a reviewing court to ensure only that the boards interpretation of the relevant section was not patently unreasonable especially in light of the privative clause protecting the boards decisions from review. (3) Dickson J., writing for the unanimous Court, proposed a new analytical framework to approach administrative decisions. He noted that the existence of privative clauses indicated the legislative choice of empowering specialized administrative bodies to decide certain matters such as labour relations. Rule: Limited by such privative clauses, courts should only interfere if an interpretation of the Act was " so patently unreasonable that its construction cannot be rationally supported by the relevant legislation." (4) The Court held that the decision of the Labour Board was not patently unreasonable and reinstated thzaaze Board's decision. The court found that the section was "very badly drafted" and that it "bristles with ambiguities". The wording of the statute allowed multiple plausible interpretations, including both the Board's and the Court of Appeal's interpretation. As such, the decision of the Board should be given deference. (5) Further, the Court attempted to clarify the issue of jurisdiction. Dickson J. wrote that the preferable approach to jurisdictional problems is that "jurisdiction is typically to be determined at the outset of the inquiry", but also noted that: (6) The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. (7) Short hand of case: Jurisdictional question assessed according to standard of correctness, while questions within jdx are evaluated against standard of patent unreasonableness d) Held: appeal allowed e) Aftermath: This decision was a major shift in the approach to judicial review. Prior to this decision, Canadian courts primarily concerned themselves with the question of whether an administrative body had acted within its own jurisdiction. If it was within the jurisdiction conferred upon it by the enabling statute, then its decisions were generally upheld. If it was found to go beyond its jurisdiction, then courts were free to overturn the decisions. This approach was often criticized for being overly formalistic and often led to courts labeling questions as jurisdictional without considering the reasons of the administrative decision-maker in question

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(1) The new approach emphasized the need for deference in the proper circumstances, often considering relative expertise of the body and the legislative intention in creating such a body. In such cases where administrative decision-makers are acting properly within their own jurisdiction, courts are told to evaluate the decision on a standard of "patent unreasonableness". 2. Notes: a) Issues in administrative law: In Nicholson the role of courts in setting minimum standards of procedural fairness in public administration. CUPE: the allocation of responsibility btn courts and agencies for interpreting the legislation administered by specialist agencies. b) Nicholson, the court increased the role of the courts as arbiters of the adequacy of administrative procedure, while in CUPE, it clearly sought to restrict judicial scrutiny of administrative interpretations of enabling statutes. CUPEs principal importance is that it shifted the focus of jdx review by directing attention to the rationality of the agencys interpretation of its enabling statute father than to an a priori classification of the statutory provision in dispute. I. After CUPE: Evolution of the Pragmatic and Functional approach: 1. Union des employes de service, local 298 v. Bibeault Developed the "pragmatic and functional analysis" to determine which standard of review to use. This analysis focused on the whether the legislature intended "the question to be within the jurisdiction conferred on the administrative tribunal a) Analysis for patently unreasonable error involves determining jdx of administrative tribunal: (1) Examine wording of jdx on admin tribunal (2) Purpose of statute creating tribunal and reason for its existence (3) Area of expertise of its members (4) Nature of the problem before tribunal. X. EVOLUTION OF THE STANDARD OF REVIEW ANALYSIS A. Decisions in Pezim and Southam (*this is not the law, current law is in Dunsmuir*) 1. Pezim v. British Columbia (Superintendent of Brokers): securities commission found that respondents had failed to make timely disclosure in respect to some transaction, required by Act. Pezim respondents appealed under statutory right to appeal, argued error of law in interpretation of material change in affairs of reporting issue of shares. a) Issue: what is the SOR for appellate court reviewing decision of securities commission not protected by private clause when there exists a statutory right of appeal and where case turns on question of interpretation. Whether newly acquired information about asset value constituted material change requiring disclosure. b) Rule: determine legislative intent in conferring jdx on admin tribunal. (1) Factors: examine tribunals role/function, whether or not agencys decisions are protected by private clause; whether or not the question goes to the jdx of the tribunal involved. (2) Reasonableness: deference at its highest, are those cases where tribunal protected by true private clause in deciding matter w/n its jdx and where no statutory right of appeal. (3) Correctness: deference of legal question at its lowest, issues concern interpretation of a provision limiting tribunals jdx or where there is a statutory right of appeal which allows reviewing court to substitute its opinion for that of the tribunal and where tribunal has no greater expertise than court on issue in question. (4) Where there is no private clause and no statutory right of appeal, concept of specialization of duties requires deference be shown to decisions of specialized tribunals on matters which fall w/n their expertise. (somewhere in btn correctness and reasonableness on the spectrum) (5) Where tribunal plays role in policy development, higher degree of judicial deference is warranted w/ respect to its interpretation of the law. c) Reasoning: (1) Primary goal of securities legislation is protection of the investing public. (2) After reading provisions, clear that it was legislatures intent to give commission a very broad discretion to determine what is in the publics interest. This is a basis for judicial deference. (3) This requires expertise and falls w/n jdx of the commission. (4) Commissions primary role is to administer and apply the Act, also plays policy development role, but are limited and are not elevated at status of law. Thus, deference should be given to the commission. d) Conclusion: Having regard t nature of securities industry, commissions specialization of duties, policy development role, nature of the problem, considerable deference should be given notwithstanding the fact that there is a statutory right of appeal and there is no private clause, e) Held: appeal allowed

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2. Canada (director of investigation & research) v. Southam Inc: respondent applied asking southam to divest itself of one of 3 newspapers, b/c it was going to lessen competition since it owned all three as publisher. Tribunal agreed and ordered southam to divest itself of either two. a) Issues: 1) whether fed ct appeal erred in finding it owed no deference to tribunal 2) whether court erred in refusing to set aside tribunals remedial order b) Ratio: Standard of reasonableness simpliciter - court when reviewing tribunals decision must inquire whether decision was reasonable. (use factors in analysis of the case discussed above*) (define: not supported by any reasons) c) Analysis: (factors stated below in order) (1) Statutory right of appeal: somewhere in btn correctness and reasonableness on the spectrum. Theres privative clause, no jdx in issue. Legislative intent clear. look at nature of problem, applicable law interpreted in light of its purpose, and expertise of tribunal. (2) Nature of problem: this is a matter of mixed law and fact. Tribunal erred in applying law to facts (3) Purpose of statute: maintain and encourage competition in canada in order to promote the efficiency and adaptability of canadian economy. (4) Area of tribunals expertise: expertise determines intention of legislator w/ respect to the degree of deference to be shown to a tribunals decision in the absence of a full privative clause. Lies in economics and in commerce. d) Conclusion: should apply standard of reasonableness simpliciter and emedy was appropriate e) Held: appeal on the merits allowed w/ costs. Appeal on remedy (by Southam) dismissed w/ costs. 3. Bishop v. Alberta College of Optometrists: a) Dunsmuir rule: two step process in determining SOR - 1) ascertain whether the jurisprudence has already determined degree of deference attributable to type of question in issue 2) if not, then perform contextual analysis of relevant factors to determine whether correctness or reasonableness is appropriate SOR b) Analysis: jurisprudence has not determined degree of deference attributable, Thus, contextual analysis is next. Consider 1) purpose of council, 2) nature of questions at issue, 3) expertise of counsil (1) Purpose of college is to regulate practice of optometry in alberta in a manner that protects and serves public interest. (2) Ground of appeal raises question to councils oversight jdx, w/n expertise. (3) Has experts in area of billing and professional conduct. c) Conclusion: first ground requires deference, reasonableness. Also applies to second and third grounds of appeal. A decision is reasonable if it is a justifiable transparent and intelligible and falls wn range of possible, acceptable outcomes which are defensible in respect of the facts and law.] d) Held: appeal dismissed. 4. Pushpanathan v. Canada (minister of citizenship and immigration): being deported after charged w/ serious offense a) Issues: 1) proper SOR over decisions of immigration and refugee board, 2) meaning of the exclusion from refugee status of those who are guilty of acts contrary to the purpose and principles of the UN - Statute had no privative clause or right of appeal, judicial review commences w/ leave of judge and no reasons required for denial. Could then appeal if trial judge certified a serious question of general importance. b) Analysis: Standard of review: need certification of a question of general importance to trigger the appeal and justify the appeal. Central inquiry into SOR is legislative intent - was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the board? (1) Factors: Pragmatic and Functional approach (a) Privative clause: give deference to it (b) Expertise: characterize expertise of tribunal, its own relative to tribunal, identify nature of specific issue before admin decision maker relative to its expertise. (c) Purpose of act as a whole and provision in particular: where statute is polycentric (engages in balancing or interests, factors) more judicial restraint is warranted. Purpose indicated in specialized nature of legislative structure and dispute settlement mechanism. Need for expertise is manifested by requirements of the statute as by the specific qualifications of its members. (d) Nature of problem - a question of law or fact, or mixed question of law and fact: for pure questions of law; courts conclude it may not have familiarity w/ expertise, court gives less deference. Look at precedential value, the greater the impact, the greater the assessment of expertise will tilt towards the Court. (2) Purpose of article 1F: is to exclude those individuals responsible for serious, sustained or systematic violations of fundamental human rights which amount to persecution in a non-war setting. (correct standard applied in interpreting this, in reviewing panels interpretation - board used it to exclude person guilty of serious narcotics offense committed in Canada) (a) Categories that fall here:

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i) Where a widely accepted international agreement or UN resolution declares that commission of certain acts is contrary to purposes and principles of the UN, and there is strong indication that those acts fall w/n Article 1F(c) (1) There is no indication in international law that drug trafficking on on any scale is to be considered contrary to the purposes and principles of the UN. Such an explicit declaration would be an expression of the international communitys judgment that such acts should qualify as tantamount to serious, sustained and systematic violations of fundamental human rights constituting persecution. ii) Those that a court is able to characterize as serious, sustained, and systematic violations of fundamental human rights constituting persecution. (1) Assess status of rule that was violated. If rule near the core of valued principle of human rights, then even an isolated violation could lead to exclusion under 1F(c) (2) No indication here that drug trafficking comes close to the core, or even forms part of the corpus of fundamental human rights. (b) Presence of 1F(b) suggests that even non serious political crime like drug trafficking should not be included in 1(f)(c). (c) No rational connection btn objectives of convention and objectives of the limitation on article 1(f)(c). No rationale for counting it amongst the grounds of exclusion. (d) Disposition: Appellants conspiring to traffic narcotics is not a violation of 1(F)(c). Need clear indication of international communitys recognition of it as a serious violation of fundamental human rights. Until then, individuals cannot be deprived of protections contained in convention for having committed such acts. Allow appeal. (3) Standard of Review - Correctness: key to legislative intent as to SOR is the use of words a serious question of general importance (general question of law). Its application to numerous future cases warrants the review by a court of justice. Determination would disqualify numerous future applicants as a matter of law. Board has to expertise in the matter of law which is the object of judicial review here. (a) Expertise and provision in question - relationship btn both is remote. Only 10% of members are required to be layers. here, legal principle easily separated from undisputed facts of case and would have a wide precedential value. Factual expertise of decision maker does not aid in interpretation of general legal principle (b) Neither is board supervising or managing. (c) No strong privative clause. Privative clause is superseded by questions of general importance c) Held: correctness standard applies. Appeal allowed. B. Correctness: Dunsmuir stated that reviewing court will show no deference to decision makers reasoning process. It will undertake its own analysis of the question. Analysis will bring court to decide whether it agrees w/ the determination of the decision maker; if not, court will substitute its own view and provide the correct answer. From the outset, court must ask, whether the tribunals decision was correct. Applied to: decisions of lower courts on questions of law. 1. BAKER v. Canada (half of case, dealing w/ abuse of discretion): a) Approach to Review of discretionary decision-making: (1) Rules: decisions classified as discretionary may only be reviewed on limited grounds such as bad faith of decisionmakers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations. (2) Pragmatic and functional approach recognizes SOF for errors law. Use this to determine SOF. Takes into account: (a) Expertise of tribunal (b) Nature of decision being made (c) Language of the provision and surrounding legislation (d) Factors: whether decision is polycentric and the intention revealed by the statutory language. Amount of choice left by parliament to admin decision maker, and nature of decision being made. (3) Standard of review: patent unreasonableness, reasonableness simpliciter, and correctness. (a) Analysis of pragmatic and functional approach to determine this w/ analysis. i) Presence or absence of privative clause and its wording: Give deference to clause. here there is none in Immigration Act. ii) Expertise of decision maker: it is the Minister, has some expertise, this indicates some deference. iii) Purpose of the provision in particular and Act as a whole: gives choice to Minister. Purpose is to exempt applicants on humanitarian and compassionate grounds. Greater deference given, but in favor of stricter standard b/c decision relates to rights of individual in relation to govt. Purpose is to decide whether admission to canada should be facilitated. iv) Nature of the problem, whether it relates to determination of law or facts: to grant H and & exemption involves appreciation of facts of persons case, highly discretionary and fact based nature, this mitigates in favor of deference.

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(b) Conclusion: Factors weighed - fact specific nature of inquiry, its the minister, discretion in statutory language, absense of privative clause, individual rather than polycentric nature of decision= reasonableness simpliciter (once leave to appeal granted, court not restricted to certified question). (4) Was decision unreasonable? (a) Rule: a decision that is not supported by any reasons that can stand up to a somewhat probing examination. (b) Here, decision was unreasonable, dismissive of childrens interests which are central to humanitarian and compassionate values, unreasonable discretion of exercise and inconsistent w/ discretion. (c) Objectives of Act: keep citizens, relatives, permanent residents together who are already in Canada. (d) International law: although no direct application b/c has not been ratified, its helpful in contextual approach to statutory interpretation and judicial review. Attentive to rights and interests of children. (e) Ministerial guidelines: recognize and reflect values and approach; what reasonable person would make w/ consideration of humanitarian values, alert to humanitarian grounds, consider hardships. Decision was contrary to their directives. (5) Conclusion: Deference should be given to immigration officers in judicial review applications, deference standard falls in reasonableness. But decisions cannot stand when made in a manner and approach taken contradictory to humanitarian and compassionate grounds, should consider childrens best interests and be alert to it, alive and sensitive to it. They did not make it an important factor in deciding. Decision was unreasonable exercise of discretion conferred by legislation, thus, decision must be overturned. (6) Held: due to violation principles of procedural fairness owing to a reasonable apprehension of bias and b/c exercise of H &C discretion was unreasonable, appeal allowed. (returned to minister for redetermination by a different immigration officer). b) Iacobucci J (concurring): Rule: international convention ratified by the executive branch is of no force or effect w/ canada until its provision have been incorporated into domestic law by way of implementing legislation. He disagreed w/ using the international convention, as reference in underlying values in the contextual approach to statutory interpretation and admin law/ b/c not in accordance w/ courts jurisprudence concerning status of international law w/n domestic legal system. C. Abuse of Discretion as a Ground of Judicial Review: includes acting in bad faith, wrongfully delegating its powers, fettered its exercise of discretion by laying down a general rule and not responding to individual situations, acting under dictation of another. Has taken some factor that is irrelevant to achieving the ends for which power was granted for, or agency neglected to take into consideration some factor that was relevant. 1. Points of reference for courts when reviewing discretionary power: 1) statutory language (is it related to specific purpose or granted for general purposes) 2) nature of interest affected by power (it is one that is given high degree of protection by legal system, how seriously is it affected by decision, 3) character of decision (are there alternative checks, political accountability, that will prevent abuse of discretion), 4) character of decision make. 2. Courts must determine independently the scope of agencys statutory discretion: whether a factor considered by the agency was relevant or a purpose pursued was authorized is reviewable by a standard of correctness, not reasonableness. 3. Suresh v. Canada (minister of citizenship & immigration): deporting refugee who may face torture. a) Standard of Review: two main issues below, must determine what standard applies to determining them. (1) Ministers decision that Suresh poses risk to security of Canada: Reviewing court should apply deferential approach and should set aside decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or minister failed to consider the appropriate factors. (a) Factors of Functional and Pragmatic approach: i) Presence of absence of clause negating right of appeal: parliament intended limited right of appeal. Ministers opinion not protected by privative clause, may only be appealed by leave to fed ct ii) Relative expertise of decision-maker: this favors deference iii) Purpose of provision and legislation generally: favors deference, minister is better position in assessing and balancing seriousness of danger to canada, and danger of persecution to refugee. iv) Nature of the question: favors deference, this is highly fact based and contextual. (b) Factors above affirm point made about deferential approach intended by parliament. Baker confirmed that pragmatic and functional approach should be applied to all admin decisions. (c) Standard reflects obligations: parliaments task to establish criteria and procedure for deportation. Ministers job to make decision that conforms to parliaments criteria. If court called to review, its job is to determine if minister exercised decision-making w/n constraints imposed by parliaments legislation and constitution. If minister considered appropriate factors in conformity, court must uphold decision, even if it would have weighed factors differently and reached different result.

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(2) Whether Suresh faces substantial risk of torture on deportation: minsters decision to deport to torture must conform to s. 7 Charter. Deference must be given, issues are outside real of courts expertise. Court can intervene if decision not supported by evidence or minister fails to consider factors. This is a threshold question which is fact driven; factors to be considered: (a) Human rights record of home state, personal risk faced by claimant, assurances that claimant will not be tortured, home state will control its security forces, reassessment of refugees claim, determination if 3rd country is willing to accept refugee. b) Conclusion: if minister considers correct factors, court should not reweigh them. Provided decision is not patently unreasonable on its face, unsupported by evidence, or vitiated by failure to consider proper factors or apply appropriate procedures - decision should be upheld. c) Held: appeal allowed w/ costs (Suresh made prima facie case of substantial risk of torture, entitled to level of procedural fairness, which he did not receive. Decision quashed and remitted). 4. Notes: next case is pre-Baker: Shell Canada - about wrongful purpose. 5. Shell Canada Products Ltd. v. Vancouver (city): a) Facts: council passed resolutions: 1) not to do business w/ Shell as long as it continues to do business w/ South Africa. 2) declared city as Shell Free zone until shell was divest itself from South Africa. b) Ph: Are not attacking resolutions, City is free to do business w/ whoever. Attack the reasons/motives for not choosing to deal w/ Shell - they relate to conduct of Shell outside the city, hence, matters are irrelevant to municipal concerns. The decision is valid but becomes invalid b/c it was made for purposes which are beyond power of the City. c) Dissenting - MacLachin: Standard of Judicial Review There are two approaches for judicial review, 1) narrow confining approach, 2) broader more deferential approach (majority chooses this). (1) Resolutions subject to judicial review: govt contractual powers not subject, but will be subject to judicial review where municipality has exercised them for improper purposes or in an improper manner. (2) Proper scope of judicial review: courts should respect elected reps to serve people who elected them and exercise caution to avoid substituting their views. This serves following purposes: (a) It adheres to fundamental axiom that courts must accord proper respect to democratic responsibilities of elected municipal officials and the rights of those who elect them. (b) Generous approach to municipal powers will aid efficient functioning of municipal bodies and avoid costs and uncertainty attendant on excessive litigation. (c) Generous approach keeps more to true nature of modern municipalities. They should be free to define their scope. Judicial interference will confine modern municipalities. (d) Broad, deferential approach to municipalities keeps w/ flexible and more deferential approach this Court adopted in recent cases to judicial review of admin agencies. (3) Dissents standard of review: generous, deferential standard of review to decisions of municipalities. Judicial review for municipal decisions should be confined to clear cases. Judicial intervention is warranted only where municipalitys exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power. d) Issues: 1) resolutions were beyond citys powers and 2) resolutions violate rule against discrimination. These issues are on appeal. Find appropriate judicial review approach for municipal decisions. e) Analysis - Were resolutions beyond citys powers? (1) Actions of statutory body can be beyond its powers in two ways: 1) Action itself is beyond authoritys powers, 2) while action is within municipalitys powers, the purpose for which the action was taken was outside the municipalitys powers, thereby rendering the action itself invalid. (this case is 2nd category -- referred to as Doctrine of improper purposes) (2) Question is - whether Citys motives in case fall outside area of citys legitimate concern. Can provide for good rule and govt of city. Capable of embracing immediate needs and psychological welfare of citizens as members of community who have an interest in expressing their identity as a community. They can express disapproval or conduct, and have right to free expression. The generous approach and words in Vancouver Charter above support this. f) Majority - Sopinka J: Reasoning: municipalities must stay within powers conferred on them by prov legislature. Policy or plan not to deal w/ Shell would require decision by Council, and this decision would be grounded in statutory power, subject to review. (1) Impermissible purpose: municipal purposes are determined by reference to what is expressly stated and that which is compatible w/ purpose and objects of enabling statute. (2) Determine whether resolutions were passed for municipal purpose: were passed to influence Shell. No mention of how good govt, health, or welfare of city or citizens is affected or promoted thereby. No mention of objective of

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improving relations w/ citizens. City was seeking to use its powers to do business to affect matters in another part of the world, a purpose which is directed at matters outside the territorial limits of the City. (3) Relation to municipal purpose: nothing in Vancouver Charter either - those are all general provisions trying to be implied to this. Do not extend to imposition of a boycott based on external matters to interests of citizens. g) Held: appeal allowed. D. Failure to Consider Relevant Factors: while an agency may consider a large number of factors in exercising its power, it is required to consider only some of them. Exercise of discretion will be ultra vires only if agency has overlooked a factor that its enabling statute (expressly or impliedly) obliged it to consider. 1. Oakwood Developments Ltd v. Rural Municipality of St. Francois Xavier: municipality refused developer permission to subdivide b/c danger of flooding. Council declined to read engineers report of measures that would be taken to avoid the problem. Court said that process of regulating division of land curtailed common law rights of landowners, must be specifically authorized by statute. Flood control and erosion were relevant to exercise of power to refuse permission, refusal of permission was ultra vires b/c municipality refused to consider evidence that was highly material to legitimate concerns. E. Multiple Purposes and Considerations: if agency exercises discretion to achieve several purposes where only one purpose is improper, or where irrelevant factor taken into account out of many is the one that shaped the decision -- the court will only hold such decisions to be ultra vires if the unlawful purpose of consideration played a dominant or material role in the exercise of discretion. F. Professional Licensing and the Relevancy Principle: legislative scheme that creates statutory monopoly, regulate entry into professions, must be of good character. Can be subject to disciplinary hearings for engaging in conduct that is unbecoming a member of the profession. G. Discretion and the Charter, Underlying Principles of the Constitution, and International Law: in absence of express words or statute, assumed legislature did not intend a discretion to be exercised so as to curtail basic liberties. 1. Charter improved protection of individual rights in three ways: 1) Charter identifies those that are to receive particular protection by their entrenchment in the constitution. 2) sect 1 makes it clear that the Charter rights are not absolute and may have to be accommodated to other claims. 3) Charter operates independently of statute. Means, it normally prevails over seen express statutory language authorizing the curtailment of Charter protected rights, and emphasizes that reading down grants of discretion so as not to authorize the violation of fundamental rights involving more than the interpretation of the enabling statute. 2. Constitutional principles and international law may be relevant to the exercise of discretionary power. H. Delegated Legislation: delegated legislation is power, delegated by statute, to make rules of more general application. It is subject to judicial review. In determining scope of authority delegated by legislature, courts look at following presumptions: statutes are presumed not to authorize the exercise of rule making to impose taxation, to operate retroactively, or to contradict a provision in the enabling statute. I. Un-reviewable Discretionary powers? Prerogative Powers and Non-Justicability: 1. Prerogative powers: issue and refusal of passports, awards of honors, signing of treaties and the conduct of foreign affairs, and the disposition of the armed forces. Prerogative powers are subject to statute, may be limited or abolished expressly or by implication. It is role of courts to determine whether and to what extent a prerogative power has been superseded by statute. 2. Council of Civil Service Unions v. Minister for the Civil Service: now in determining discretionary power is exempt from review, court will be influenced more by the nature of the power in question and less by its legal source. Lord denied applicants application for judicial review of ministers decision to disallow them to be continue to belong to a national trade union (b/c of security threats). Lord held b/c minister had consulted the council in past about changes to terms of employment of civil servants, the council had a legitimate expectation of being consulted in future. Here, sources of ministers authority to issue instructions of civil servants terms of employment came from order in council that was issues pursuant to Crown prerogative. Thus, on general issue of justiciability and the Crown prerogative, Lord concluded that ministers exercise of discretion was reviewable by the courts. a) Reasoning: source of decision making power is statute or subordinate legislation, in absence of this, it will be common law (prerogative). Still reviewable even if its from common law and not statutory source. 3. Black v. Canada (Prime Minister): a) Issue: whether prerogative power by PM Chretien to advise the Queen on the conferral of honors was reviewable in the courts. b) Rule subject matter test: Controlling consideration in determining whether exercise of prerogative power is judicially reviewable is its subject matter, not its source. If subject matter is amenable to judicial process, then it is reviewable. Subject matter will be amenable to judicial process if it affects the rights of individuals. (Civil Service Unions case) c) Reasoning: No longer tenable to hold that exercise of prerogative power is insulated from judicial review merely b/c it is a prerogative power and not a statutory power. (1) Subject matters ranged from signing treaties, declaring war, refusal of passport, exercise of mercy, honors prerogative. Here, characterized PMs subject matter as 1) giving unsolicited and wrong advice to Queen which detrimentally affected Mr. Black, 2) as an admin decision involving the improper interpretation and application of canadian policy.

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(2) These are not accurate accounts of PMs actions. He did not give legal advice nor make an administrative decision. He communicated canadas policy on honors, and advised her against conferring an honor on Mr. Black. PMs exercise of the honors prerogative is not judicially reviewable. (3) No important interests were at stake (unlike denial of passport). Blacks rights not affected. No canadian citizen has a right to an honor. No legitimate expectation of receiving an honor either. Doctrine of LE does not give rise to substantive rights, and even if it did no canadian citizen can claim Le of receiving an honor. (4) Honor has no liberty, property, or economic interest. No procedural protections. No legal component to warrant courts intervention. Has moral and political considerations which are not province of courts to assess. d) Held: appeal dismissed. J. The Private Powers of Public Authorities: govts can enter into contracts, through powers that are expressly granted, regulated by statute, or implied in statute. Powers of contracts and property ownership, liability for breach of contract and for tort is determined by general law, w/o regard to public or govt character of power. Question: extent to which exercise of these private powers is also subject to review on public law grounds and for abuse of discretion. XI. THE CURRENT TEST - Dunsmuir A. The Standard of Review Analysis: 1) determine what standard applies 2) apply the standard on the merits to decide outcome of judicial review. 1. Dunsmuir v. New Brunswick: D dismissed, worked in civil service, received severance, but insisted on duty of fairness prior to termination. He appealed to adjudicator of Act that extended rights to nonunionized employees; he interpreted relevant statutory provision as allowing him in to consider the reason for discharge, found dismissal not for just cause. a) Issues: (1) Appropriate standard of review for judicial review of decision of adjudicator- to inquire into reasons for dismissal. (2) Whether appellant who was a civil servant at pleasure had right to procedural fairness in employers decision to terminate him b)TEST. Determining what standard to apply - Two step process for judicial review: (1) Ascertain whether jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded w/ regard to a particular category of question. (a) Reasonableness review (jurisprudence): Deference given: courts give due consideration to decision makers determinations. Reasonableness concerned e/ existence of justification, transparency, and intelligibility w/n decision making process. And if decision fall w/n range of possible acceptable outcomes which are defensible in respect of facts and law. i) Privative clause: this is statutory direction from govt indicating need for deference. If present, strong indication to review by reasonableness standard. Govt intent that admin decision maker be given greater deference and interference by courts minimized. ii) A discrete and special administrative regime in which decision maker has special expertise (labor relations) Admin tribunal developed expertise in application of general common law or civil law in relation to specific statutory context. iii) Deference given there is where question of fact, discretion or policy. Same standard must apply to review of questions where legal and factual issues are intertwined w/ and cannot be readily separated. Deference results where tribunal interpreting its own statute, or statutes closely connected to its function. Correctness standard where question of law is of central importance and outside specialized area of law. If question of law does not rise to this level, can be compatible with reasonableness standard. (deference for question of law only where privative clause and stat right to appeal?) (b) Correctness review (jurisprudence): No deference given (in 4 circumstances) Will not show deference, but instead court will undertake its own analysis of the question. If does not agree, will substitute its own view. i) Where question of law is of central importance to legal system as a whole and outside adjudicators specialized area of expertise. ii) In constitutional questions iii) In true questions of jurisdiction: where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter iv) In questions regarding the jurisdictional lines between two or more competing specialized tribunal (2) If no precedent exists, then apply standard of review analysis (a) Four factors from pragmatic & functional approach -- may not have to apply all i) The presence or absence of a privative clause

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ii) The purpose of a tribunal as determined by the interpretation of enabling legislation iii) The nature of the question at issue iv) The expertise of the tribunal. c) Reasoning (1) Considering privative clause, nature of regime, nature of question of law, conclude appropriate standard is reasonableness. (2) Defeasible rule: the default position is deference, unless one of the exception obtains. (3) Reasonableness: review must inquire into reasons and outcomes, concerns with existence of justification, transparency, and intelligibility, within the decision-making process; if decision falls w/n range of possible, acceptable outcomes which are defensible in respect to the facts and law. Deference requires respect for choices of admin decision makers, they may draw on experience and expertise. (4) Correctness: will not show deference to decision makers reasoning but court will conduct its own analysis of the question. Then decide if it agrees, if not, provide the correct answer. Ask -whether tribunals decision was correct? 2. Canada (Citizenship and Immigration) v. Khosa: a) Facts: citizen of india, landed immigrant here, took part in street racing, prepared to plead to dangerous driving, convicted of criminal negligence causing death, ordered to remove to India by IAD. Fed ct judge applied reasonableness simpliciter standard, yet case decided after Dunsmuir. b) Reasoning: Where legislature enacted judicial review legislation (standard) analyze that first. (1) Patent unreasonableness will live on in BC, but content of expression and degree of deference it commands in prov administration will be calibrated according to general principles of administrative law. c) Rule/analysis: judicial review has two steps (Dunsmuir) (1) An exhaustive review is not required in every case to determine proper standard of review. Look at existing jurisprudence first. (a) --Here, jurisprudence points to reasonableness (2) If no jurisprudence, go to factors: 1) The presence or absence of a privative clause 2) The purpose of a tribunal as determined by the interpretation of enabling legislation, 3) The nature of the question at issue, 4) The expertise of the tribunal. (a) --Here, there is a privative clause, points to exclusive jdx to hear all questions of law, shows legislative intent, deters judicial intervention. There is no statutory right of appeal. Only reviewable if fed ct grants relief to commence judicial review. (b) Nature of question: calls IAD to be satisfied of humanitarian and compassionate considerations, fact dependent and policy driven assessment. He raised attack on IADs refusal to grant him discretionary privilege - they did by assessing evidence, hearings. They have expertise. Factors point to reasonableness d) Conclusion: IAD decides humanitarian and compassionate grounds, parliament confided in IAD, not the judges, court and should give higher deference. Appeal allowed and decision of IAD restored. e) Held: standard is reasonableness. Appeal allowed. f) Notes: in Baker, non citizen, and in this case well. In Baker, Court basically stated that discretionary choices of admin agencies were not entitled automatically to the highest level of deference. Here, court showed reluctance to interfere w/ discretionary choices of admin tribunal. 3. Art Hauser Centre Board Inc. (City of Prince Albert) v. CUPE Local No. 882: a) Facts: City and CUPE have collective agreement. City created Center to operate sports complex, and Centre contracted out concession services, CUPE grieved this decision on basis that agreement prohibits this, unless exceptional circumstances. b) Issue: Boards interpretation having regard to periodic peaks in work load dictating the necessity of contracting out work c) Reasoning: (1) The article can have two different interpretations. Chambers judge substituted her own interpretation w/o giving deference to Boards interpretation, incorrectly applied reasonableness standard. Dunsmuir shows greater deference to labor boards decision. (2) When reviewing admin tribunal, determine 1) context in which decision arises, 2) nature of question decided. (a) Context: labor relations; long list of cases showing high degree of deference; Boards decision protected by privative clause (b) Nature of question: board considering principle of general law, or one of significant impact on labor relations. (3) Boards interpretation: cannot contract out, can contract out if precondition of periodic peaks in work load exist. Boards interpretation supported by Letter of Understanding which forms part of collective agreement. d) Conclusion: in reviewing reasonableness, must determine whether decision falls within range of acceptable outcomes.

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(1) After considering 1) nature of board, 2) question required to decide and evidence before it, 3) boards reasons, 4) the law pertaining to contracting out in labor relations, 5) the possible alternative interpretations of the article, 6) and the language of the article (2) = Boards decision was represents one of the acceptable reasonable interpretations of the article. e) Held: Boards interpretation of contracting out clause (for concession stand by Centre) was reasonable, prior letter of understanding can be considered in interpreting the collective agreement. Allow appeal and restore Boards decision B. Reasonableness and the Giving of Reasons: required for procedural fairness (Baker) and for the reasonableness review of substantive decisions (Dunsmuir). Concern for reasonableness review is with existence of justification, transparency, and intelligibility of the decision making process. If tribunal gives elaborate reasons, court must look exclusively to those. Can disregard for courts own rationale if core purpose of reasonableness review is to defer decision makers choices. If reasons are inadequate, court can send case back to decision maker for the court to determine if decision was reasonable. 1. MacDonald v. Mineral Springs Hotel: a) Facts: doctor asked OR committee for more OR time, next year wrote asking for it, both committee and subcommittee refused. He appealed to HPAB, which found it had no jdx to hear appeal b/c it did not involve matter of his privileges. b) Procedural history: Chambers jduge found that it did affect his privileges, and standard is of correctness because it was an issue of statutory interpretation. He held that HPAD erred in law and it should hear docs appeal on merits. c) Reasoning: HPAB had 3 grounds for refusal. For 1) looked at letters/minutes - no appealable decision, 2) found decision made not to vary to doctors OR time is not a question of privileges. Did not look at 3. d)Third ground - was decision reasonable? (1) Rule: reasonableness requires looking at process of articulating reasons, existence of justification, transparency and intelligibility w/n decision making process. (2) HPAB gave no reasons that matter was not a question of privileges. W/o its reasoning about how it employed its expertise to interpret its home statute, impossible to determine if decision was reasonable. Reasons must be sufficient to allow meaningful judicial review. Cannot entertain appeal until reasons are known. (3) Functional test for whether reasons are required. whether reasons are sufficient to allow for meaningful appellate review and whether parties functional need to know why the trial judges decision has been made has been met. e) Held: appeal allowed but matter remitted to the HPAB C.The Concept of Jurisdictional Error 1. Public Service Alliance of Canada v. Canadian Federal Pilots Association: a) Reasoning: Did the Board exceed its jdx by allocating the positions to the Ao bargaining unit? (1) Jdx error is the only ground of review available to applicants on the facts of this case. Preclusive clause ousts courts power to review decisions of federal tribunals for mere error of law. (2) Tribunal may exceed its jdx in two ways: (a) Tribunal will have acted beyond jdx if it had decided incorrectly a legal question for which correctness is the applicable standard of review. (b) Even if question decided by tribunal is not jdx but is mere question of law, the Court may nonetheless intervene on an application for judicial review if the tribunals decision is unreasonable. (3) Board will have acted outside if Court finds that board had to be correct in deciding & Court disagrees w/ board. (4) Even if interpretation of s 58 is not subject of correctness, board will have acted beyond jdx if interpretation is unreasonable. b)Reasoning: correctness review and jurisdictional questions (1) No justification for characterizing as jdx issue and reviewing it on correctness. (a) Court did not intend to turn clock backwards to 1979 and apply correctness for jdx issue (b) Limited range of issues in courts mind when jdx questions are to be limited to true questions of jdx or vires. (c) True question of jdx or vires - is only example by Court in Dunsmuir. (2) Standard of review analysis required when admin tribunal exceeds jdx b/c misinterpreted provision of its enabling statute. To establish Board exceeded its jsx, which neither raises question of law of central importance to legal system nor demarcates its authority vis a vis another tribunal, an applicant must demonstrate that Boards interpretation was unreasonable (3) Tribunal must have legal authority to interpret and apply disputed provision of its enabling statute. However, admin tribunal performing adjudicative functions would have explicit or implied authority to decide all questions of law, including interpretation of its enabling statute. c) Conclusion: too late to invoke ghost of jdx past to review for correctness a tribunals interpretation of a provision in its enabling statute, w/o subjecting it to the standard of review analysis. No sense to apply correctness when tribunal has authority to interpret

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and apply the provision to the facts, and standard of review analysis indicates that legislature intended tribunals interpretation to be reviewed only for reasonableness. 2. Stewart v. Workplace Health, Safety and Compensation Commission: a) Facts: S unable to work b/c of work related stress, saw many doctors, diagnosed w/ depression. Filed claim w/ Workplace health safety commission for compensation for inability to work due to work related stress (worked w/ public works and govt services of canada) Denied b/c claim did not constitute an accident w/n meaning of GECA. Challenges, that definition does not exclude gradual onset of stress. b)Reasoning A (1) Applicable standard of review: Present appeal heard by statutory right of appeal. Section grants right of appeal on jdx and question of law. Interpretation of accident raises a question of law. In the absence of privative clause and presence of statutory right of appeal, tribunal must be correct in order for its decision to stand. (2) Interpretation of accident: (a) Under GECA, employees can receive compensation at same rate/conditions as under law of province where they work , if caused personal injuries in province by accidents arising out of employment. Accident includes mental stress other than acute reaction to traumatic event. (b) Only purpose of s. 4(2) of GECA is to ensure rates and conditions of compensation payable to fed employees mirror that of other injured workers in NB province once threshold of entitlement has been determined. (c) Parliament has not delegated the legislature of each province the the right to amend fed legislation by redefining accident in GECA in the provinces own image, nor did parliament intend to create a patchwork across canada whereby fed employees in different provinces are faced w/ different thresholds for proving a compensable injury. (d) Before 4(2) is triggered for compensation -- GECA is not engaged until it has been determined that s. 4(1) includes gradual onset of stress; This requires interpretation of accident to ascertain whether it includes gradual onset stress. Only then can person make a claim under the Act. c) Conclusion: appeals tribunal erred in concluding that definition of accident in Workers Compensation Act (prov) is imported into the definition of accident in GECA (Govt Employees Compensation Act). d) Held: allow the appeal, set aside appeals tribunals decision, remit matter back to appeals tribunals to determine if in light of these reasons, gradual onset of stress in the present case is compensable under GECA. 3. Calgary (City) v. Alberta (Municipal Government Board): a) Facts: Calgary issued property assessments to owners for 4 malls. Bay/Zellers are anchor tenants in shopping centers and their leases required payment by them of the proportionate share of property taxes based on space occupied by them. Owners of mall reached settlements w/ Calgary. Bay files complaints disputing assessments in respect to space occupied. (not invited to participate in settlement negotiations which resulted in settlement & reassessment). b) Issues: (1) Did the chambers judge select the appropriate standard of review (correctness)? (2) Does s. 460(3) limit the right of complaint about a property assessment to the owner of the assessed property? c) Standard of Review: (1) Nature of question on appeal is whether party is entitled to file a complaint = question of law. That involves MGB interpreting its own statute = deference (2) Also requires consideration of policy issues. It is not jurisdictional question, does not constitute question of importance to legal system as a whole. (3) Privative clause is a strong indicator of legislative intent to give deference. Here, it is a weak privative clause, but = some deference (4) Standard = reasonableness. Requires deference be accorded to underlying decision, which imports respect for decision making process w/ regard to both facts and law. Implies that court will give due consideration to determinations of decision makers. (a) Question on appeal is the reasonableness of the decision of MGB, that any assessed person has the right to file a complaint about an assessment, and that right is not limited to the assessed person named in the assessment rolls for the property that is subject to the complaint. d) Position of party: that any assessed person in respect of an assessed property can file claim. Chambers judge erred in deciding that an assessed person is same meaning as the assessed person. e) Analysis: statutory interpretation mandates that court interpret words of legislative provision in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature.

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(1) Ordinary meaning: implied that any assessed person or tax payer may make a complaint in respect of any assessed property. An assessed person is any person whose name appears on assessed roll. Nothing in language shows linkage btn person making complaint and property. (2) Consistency of meaning: legislation must be read in context and other parts of the statute inform the ordinary meaning of the provision in question. Nothing in MGA suggests that ARB decision relating to the assessment of one property will bind owners of unrelated similarly situated properties. Where legislature intended to link assessed person to assessed property, it has explicitly done so. f) Holding: Bay is an assessed person, by virtue of ownership of its downtown property, it Deference must be accorded to MGB. Its decision was reasonable. Appeal allowed, returned to MGB for decision. D. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals: 1. Facts: P contended that she was entitled, upon 20 years of employment, to a bonus week of vacation pursuant to the terms of the collective agreement between Nor-Man and Ps Union. Her request was denied by Nor-Man. Her anniversary of employment under art. 1105 was, at the earliest, May 30, 1999 the date she began to accrue seniority. Under the collective agreement, her casual employment did not count toward seniority. It therefore had no bearing, according to Nor-Man, on Ms. Plaisiers eligibility for a bonus week of vacation. 2. Procedural history: The arbitrator decided that the employers practice of excluding casual service in calculating vacation benefits breached the terms of the collective agreement. The arbitrator held that the Union was estopped from asserting its strict rights under the disputed provisions of the collective agreement until the expiry of the agreement b/c did not challenge it earlier (20 years and 5 agreements later) a) The Unions application for judicial review was dismissed on the basis that the arbitrators award was reasonable. The Court of Appeal held that correctness was the governing standard of review and it set aside the estoppel imposed by the arbitrator. 3. Issue: whether the arbitrators imposition of an estoppel brings his award within an exception to that general rule. Stated more broadly, the issue is whether arbitral awards that apply common law or equitable remedies are for that reason subject to judicial review for correctness. 4. Standard of Review: [a]n exhaustive review is not required in every case to determine the proper standard of review A reviewing court should therefore first inquire whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question a) Prevailing case law clearly establishes that arbitral awards under a collective agreement are subject, as a general rule, to the reasonableness standard of review. The Court of Appeal erred in reviewing the arbitrators decision for correctness: reasonableness is the applicable standard. b) Contextual analysis: four factors 5. Rules: a) An administrative tribunals decision will be reviewable for correctness if it raises a constitutional issue, a question of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise, or a true question of jurisdiction or vires. It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunal b) The standard of reasonableness, on the other hand, normally prevails where the tribunals decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the interpretation of the tribunals enabling (or home) statute or statutes closely connected to its function, with which it will have particular familiarity 6. Reasoning: a) Our concern here is with an estoppel imposed as a remedy by an arbitrator seized of a grievance in virtue of a collective agreement. No aspect of this remedy transforms it into a question of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise. b) Contextual analysis: Reasonableness is the standard of review governing arbitral awards under a collective agreement. The equitable remedy of estoppel imposed here by the arbitrator does not involve a question of central importance to the legal system as a whole that was beyond the expertise of the arbitrator. (1) It therefore cannot be said to fall within that established category of question nor any other subject to review for correctness. Furthermore, a contextual analysis confirms that reasonableness, not correctness, is the appropriate standard of review. Deference is appropriate in this case. (2) They benefit from institutional expertise in resolving disputes arising under a collective agreement even if they lack personal expertise in matters of law. Dunsmuir makes clear that, at an institutional level, adjudicators . . . can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions

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(3) Labour arbitrators may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized. They are well equipped by their expertise to adapt the legal and equitable doctrines they find relevant within the sphere of arbitral creativity c) Was decision reasonable: Arbitrators reasons are not just transparent and intelligible, but coherent as well. The arbitrator adapted and applied the equitable doctrine of estoppel in a manner reasonably consistent with the objectives and purposes of the LRA, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of Ps grievance The arbitrators reasons are amply sufficient to explain why he imposed the remedy of estoppel in this case. 7. Held: appeal allowed, restore the labour arbitrators award in its entirety. E. Smith v. Alliance Pipeline Ltd. 1. Issue: whether the Second Committee could reasonably find that it was entitled under s. 99(1) of the NEBA to make the impugned awards on costs. 2. Standard of Review: a) Rules (1) The standard of correctness governs: (1) a constitutional issue; (2) a question of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a true question of jurisdiction or vires (2) Reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunals enabling (or home) statute or statutes closely connected to its function, with which it will have particular familiarity; (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues b) Here, it is reasonableness. Committee was interpreting its home statute. c) Other considerations for reasonableness: (1) Interpreting a provision of its home statute regarding awards for costs. Awards for costs are invariably fact-sensitive and generally discretionary. (2) Statutory language reflects a legislative intention to vest in Arbitration Committees sole responsibility for determining the nature and the amount of the costs to be awarded in the disputes they are bound under the NEBA to resolve. (3) in discharging that responsibility, Committees must interpret s. 99(1) in order to apply it in accordance with their statutory mandate, a process that will frequently raise questions where the legal issues cannot be easily separated from the factual issues d) Not correctness b/c: (1) The Committees decision involved no constitutional matter or issue of general law of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise (2) Nor did it purport to draw jurisdictional lines between two or more competing specialized tribunals (3) The jurisdictional ground is without merit. NEBA Arbitration Committees doubtless have the authority to make the inquiry whether costs under s. 99(1) refer solely to costs incurred in the proceedings before them, a determination that plainly falls within their statutory grant of power. Courts should not brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. e) Reasoning: (1) Standard of reasonableness, even prior to Dunsmuir, has always been based on the idea that there might be multiple valid interpretations of a statutory provision or answers to a legal dispute such that courts ought not to interfere where the tribunals decision is rationally supported 3. Was the standard satisfied: a) The Committee found those costs to have been reasonably incurred. As mentioned earlier, the Committee concluded, again reasonably, that Mr. Smiths costs before both Arbitration Committees and in the Queens Bench all related to a single claim for compensation in respect of a single expropriation by a single expropriating party. On a plain reading of s. 99(1), it was therefore open to the Committee to find that Mr. Smith was entitled to recover all [of his] legal, appraisal and other costs in asserting that claim b) The committees decision, moreover, is firmly rooted in the legislative evolution and history of the NEBA c) Reasonableness satisfied. XII. VENUE & BASIC PROCEDURE FOR JUDICIAL REVIEW A. Standing in judicial review proceedings 1. Finlay v. Canada (Minister of Finance): a) Issues/Analysis:

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(1) Does respondent have sufficient personal interest in legality of federal cost sharing payments to bring him w/n general requirement for standing to challenge an exercise of statutory authority by an action for a declaration or an injunction? (2) If not, does the court have a discretion to recognize public interest standing in the circumstances of the present case (3) If the court does have such a discretion should it be exercised in favor of respondent? b)Rule: (1) Justiciable issue: where may be appropriately decided by court. court should not decline to determine on ground that b/c policy context or implications it is better left for legislative or executive branches. (2) Public interest must litigant must raise a serious issue.(relates to importance of issue and whether it will be resolved in favor of applicant) (3) Litigant must have genuine interest in issue. (relates to expertise and experience of application in relation to smj) (4) There is no other reasonable and effective manner in which issue may be brought before a court. (are there other appropriate applicants, will deny if there are) c) Reasoning: (of first issue) (1) private individual may not sue for declaratory or injunctive relief w/o consent of Attorney General unless he can show what amounts to a sufficient private or personal interest in the subject matter of the proceedings. (2) Relationship between prejudice caused and illegality of fed payments is too indirect, remote, speculative to be sufficient causative relationship w/ standing under general rule. Must rely on standing that is public interest. Must consider whether, as matter of judicial discretion, if he can have such standing. (3) Recognition of public interest standing should not be refused on ground of justiciability. (4) From nature of legislation there can be no one more w/ more direct interest than P in a position to challenge statutory authority to make federal cost sharing payments. (5) P should be recognized as having standing to bring action for declaration to challenge s. 7 Plan (6) Meets both requirements: 1) genuine interest in issue, 2) there should be no other reasonable and effective manner in which issue of statutory authority raised by respondents statement of claim may be brought before a court. (7) Should have both standing for injunctive and declaratory relief. d) Holding: appeal dismissed (crowns appeal). B. Public interest standings 1. Canadian Council of Churches v. Canada: a) Issue: whether council should be given status to proceed w/ challenging the Immigration Act as amended- whether fed ct appeal erred in holding canadian council should be denied standing to challenge provisions. b) Rule: It has been seen that when public interest standing is sought, consideration must be given to three aspects. (1) Is there a serious issue raised as to the invalidity of legislation in question? (2) Has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? (3) Is there another reasonable and effective way to bring the issue before the court c) Reasoning: (1) Serious issue if invalidity: some aspects of statement of claim could be said to raise this here. (2) Has P demonstrated a genuine interest: P has satisfied this part. (3) Whether there is another reasonable & effective way to bring the issue before the court: many refugees can and have appealed admin decisions under statute, many before courts. Do not agree that they have no effective use of access to court or that 72 hour removal undermines their ability to challenge scheme. - takes 5 months for case to be considered, more then enough time to prepare for litigation. d) Conclusion: individual refugee status have every right to challenge law, have done so, thus, there are other reasonable means to bring matter before court. Basic purpose for allowing public interest standing is to ensure law is not immunized from challenge, here no such immunization. Must be denied standing on counts, did not meet test. e) Intervenor: public interest groups are given intervenor status. Views and submissions are great assistance to court. Assistance given against background of established facts and in time frame and context that is controlled by courts. Proper balance between public interest groups and judicial resources is maintained. f) Held: appeal dismissed, cross appeal allowed. 2. Vriend v. Alberta: teacher at private religious school fired for admitting he is gay. He and gay organizations sought declaration that omission of sexual orientation from list of discriminations was contrary to s. 15 Charter. a) Rule/analysis It has been seen that when public interest standing is sought, consideration must be given to three aspects. (1) Is there a serious issue raised as to the invalidity of legislation in question? (a) Yes - for all provisions

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(2) Has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? (a) Yes, organizations and V all have genuine and valid interests. Direct interest in exclusion of sexual orientation from list of discrimination. In issue is not employment, but denial of access to complaint procedures in Alberta HR commission. Organizations protect from discrimination, rights of gays. (3) Is there another reasonable and effective way to bring the issue before the court (a) Only other way would be to wait until someone brings case for being discriminated. This is wasteful of judicial sources, and unfair, impose burdens of delay, personal vulnerability to discrimination. b) Holding: appellants have standing to challenge validity of all the provisions named. Appeal dismissed. 3. Harris v. Canada: taxpayer sought declaration that minister of national revenue had acted illegally by providing another tax payer w/ favorable private advance ruling while maintaining different position publicly on taxability of funds in question. Minister sought to strike proceedings for lack of COA and Standing. Granted, Ft Ct Tr reversed, minister appealed. a) Issue: whether Harris should be given public interest standing. b) Rule/analysis: where strong public interest issues arise, a court may exercise its discretion to recognize public interest standing. Factors from Finlay - for determining if court should exercise its discretion. (1) Justiciable issue: where may be appropriately decided by court. court should not decline to determine on ground that b/c policy context or implications it is better left for legislative or executive branches. (a) Here, issue was justiciable, minister acted illegally or improperly or for ulterior motives. Raises question of potential violation of Act. (result would be different if minister acted in error of law) (2) Public interest must litigant must raise a serious issue. (a) He alleges minister acted for ulterior motives, favoring tax payers = issue is serious (3) Litigant must have genuine interest in issue (a) Had genuine interest b/c he is a tax payer, has interest in ensuring fair administration of taxation system. (4) There is no other reasonable and effective manner in which issue may be brought before a court. (a) No other reasonable method. AG requested twice, did not do so, other tax payers will not bring it either. c) Conclusion: Should be granted public interest standing. d) Holding: appeal dismissed. C. The role of the Attorney General: traditionally was the only one who could bring case in the name of the public. Finlay changed that - Public interest standing. Case below establishes legal status of AG in matters and in introducing the problem of the right of a statutory authority to defend in its own name, challenges to its decisions and to appeal against adverse judgments. 1. Energy Probe v. Canada (Atomic Energy Control Board): Two grounds to give AG standing: 1) appearing to protect crown interest, 2) issue before court is one of general importance and of nature that court deems beneficial to hear argument of Ag on issue to ensure all arguments are adequately canvassed. Application to add AG as intervenor granted. D.The status of the authority under attack 1. Northwestern Utilities Ltd. v. City of Edmonton: special reason for allowing AGs application in Energy board: inability of board to appeal a judgment quashing its decision for breach of procedural fairness. 2. CAIMAW Local 14 v. Paccar of Canada Ltd: whether tribunal should be able to be a party and defend itself in proceedings where the allegation was one of patent unreasonableness. Council has standing to make submissions to explain record and to show that it had jdx to embark upon inquiry and that it has no lost that jdx through a patently unreasonable interpretation of its powers. 3. Childrens Lawyer for Ontario v. Goodis: role of Act in informing judicial discretion on question of tribunal standing. a) Rules: Act allows admin tribunal to be a party, but leaves to the courts discretion the scope of its standing. A context-specific solution to scope of tribunal is preferred. Considerations for discretion: (1) Fully informed adjudication of the issues before the court: whether participation is needed to en able a proper defense or justification of the decision under attack. (2) Nature of problem, purpose of legislation, extent of tribunals expertise, availability of another party able to knowledgeably respond to the attack on the tribunals decision. - relevant in assessing seriousness of impartiality and need for full argument b)Analysis: (1) No body would be there to defend proceeding. Specialized nature of statutory scheme administered by commissioner, he has familiarity and expertise, which would help in fully informed adjudication. (2) Ability to act impartially in future cases would not be affected. (3) Importance of preserving the integrity of the admin tribunals decision making: this case does not warrant curtailing the scope of the commissioners standing. c) Holding: appeal dismissed.

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4. Notes: Pacific Newspapers: Bc labor relations board granted limited standing only in judicial review of its decision, for making submissions and argument on jdx of board and to explaining the record. a) Canada (HR Commission) v. Canada (AG) (ct of app case): decision maker not entitled to be party to judicial review proceedings. Instead apply to be an intervenor to extent it was appropriate for tribunal to defend its jdx, w/o compromising its independence. Reasoned: if parliament had intended full party status to commission in a case where it had not initiated the complaint or where decision attacked was its own rather than hr tribunal, would have expected to do so in express terms. E. Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society: 1. Issue: whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing 2. Rule: a) In determining whether to grant standing in a public law case, courts must consider three factors: (1) Whether the case raises a serious justiciable issue; (To constitute a serious issue, the question raised must be a substantial constitutional issue and an important one that is far from frivolous that the statement of claim reveals at least one serious issue) (2) Whether the party bringing the case has a real stake or genuine interest in the proceedings - or is engaged with the issues that it raises; and (3) Whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court. (a) Should be applied in light of the need to ensure full and complete adversarial presentation and to conserve judicial resources (b) By taking a purposive approach to the issue, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality. (use this for reasonable and effective means) (c) A flexible, discretionary approach is called for in assessing the effect of these considerations on the ultimate decision to grant or to refuse standing. There is no binary, yes or no, analysis possible. Whether a means of proceeding is reasonable, whether it is effective and whether it will serve to reinforce the principle of legality are matters of degree and must be considered in light of realistic alternatives in all of the circumstances. 3. Analysis of Standing Three Factors: a) All three factors, applied purposively and flexibly, favour granting public interest standing to the respondents. In fact, there is no dispute that the first and second factors are met: (1) The respondents action raises serious justiciable issues and (2) The respondents have an interest in the outcome of the action and are fully engaged with the issues that they seek to raise. Indeed, the constitutionality of the prostitution provisions of the Criminal Code constitutes a serious justiciable issue and the respondents, given their work, have a strong engagement with the issue. (3) Third factor is also met. The existence of a civil case in another province is certainly a highly relevant consideration that will often support denying standing. However, the existence of parallel litigation even litigation that raises many of the same issues is not necessarily a sufficient basis for denying standing. Given the provincial organization of our superior courts, decisions of the courts in one province are not binding on courts in the others. Thus, litigation in one province is not necessarily a full response to a plaintiff wishing to litigate similar issues in another. Further, the issues raised are not the same as those in the other case. The court must also examine not only the precise legal issue, but the perspective from which it is made. In the other case, the perspective is very different. The claimants in that case were not primarily involved in streetlevel sex work, whereas the main focus in this case is on those individuals. Finally, there may be other litigation management strategies, short of the blunt instrument of a denial of standing, to ensure the efficient and effective use of judicial resources. A stay of proceedings pending resolution of other litigation is one possibility that should be taken into account in exercising the discretion as to standing. (a) Other considerations should be taken into account in considering the reasonable and effective means factor. This case constitutes public interest litigation: the respondents have raised issues of public importance that transcend their immediate interests. A challenge of this nature may prevent a multiplicity of individual challenges in the context of criminal prosecutions. It is obvious that the claim is being pursued with thoroughness and skill. There is no suggestion that others who are more directly or personally affected have deliberately chosen not to challenge these provisionsThe presence of K, as well as the Society, will ensure that there is both an individual and collective dimension to the litigation.

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(b) The record supports the respondents position that they have the capacity to undertake this litigation. The Society is a well-organized association with considerable expertise with respect to sex workers in the Downtown Eastside, and Ms. Kiselbach, a former sex worker in this neighbourhood, is supported by the resources of the Society. urther, the Society is represented by experienced human rights lawyers, as well as by the Pivot Legal Society, a non-profit legal advocacy group working in Vancouvers Downtown Eastside and focusing predominantly on the legal issues that affect this communityThis in turn, suggests that the present litigation constitutes an effective means of bringing the issue to court in that it will be presented in a context suitable for adversarial determination. 4. Held: The respondents have public interest standing to pursue their action, it is not necessary to address the issue of whether K has private interest standing. Appeal dismissed. F. Allocation of review authority: Federal court and provincial superior court - Venue 1. Reva v. Canada: a) Issue: whether court may decline to exercise its jdx b) Procedural history: court should decline to grant relief on habeas corpus application. Should leave immigration matters w/ federal court, based on jurisprudence and logic. Case does not involve habeas corpus. Proceedings should be stayed. c) Analysis: standard of review for an appellate court reviewing lower courts exercise of discretion is whether the judge at first instance has given sufficient weight to all relevant considerations. There is no basis for interfering w/ decision to stay proceedings commenced by the respondent. s. 106 of Act, states any judge of general division had a discretion to stay proceedings.. Parliament created a comprehensive scheme of review of immigration matters and the fed ct was an effective and appropriate forum. Since judge took all relevant considerations in exercising his discretion to grant a stay, there is no basis for an appellate court to interfere w/ his decisoin. d) Held: appeal allowed (canada won). 2. Federal Court Acts Allocation of Jdx as Between the Federal Court and Provincial Courts a) Whether fed ct has jdx over any fed statutory power depends on whether there has been a specific conferral of that jdx either in federal courts act or the legislation establishing that statutory authority. (1) For bodies or persons appointed under the law of a province. Exclusion applies clearly where powers created by federal statute are conferred on or delegated to a provincially appointed decision maker. (2) Definition federal board, commission, or other tribunal - has exclusions. (a) Held that unless statute expressly provided otherwise s. 96 court judges exercised all powers conferred on them by statute in their capacity as superior court judges. Thus, their decisions in such matters were not reviewable under Federal Courts Act. (3) In some domains, the prov superior courts continue to possess judicial review jdx over federal decision maker: In such cases, the potential existed for challenges in both Federal Court and provincial superior courts by way of an application for relief in the nature of habeaus corups under provincial legislation and court rules governing that relief. (4) May v. Ferndale Institution; prov superior courts have jdx to issue certiorari in aid of habeas corpus in respect to detention in federal penitentiaries in order to protect residual liberty interests. Prov Sup Ct should decline to exercise habeas corpus jdx only in limited circumstances and not b/c another alternative remedy exists and would appear as more convenient in the eyes of the court. 2 limited circumstances: (a) Where statute confers jdx on a court of appeal to correct the errors of a lower court and release the applicant if need be (b) Where there is in place a complete, comprehensive and expert procedure for review of an administrative decision in the field of immigration law but not in the prison context. (5) Within inherent jdx of judicial review, prov sup ct can issue interlocutory injunctions in aid of admin processes created by federal legislation. (6) Superior courts may be involved in admin action in claims of damages against federal crown; they could have to rule on validity of federal admin action in a situation where a damages claim against the federal crown is an element in the litigation. 3. As between the Federal Court and the Federal Court of Appeal: a) Jdx allocated by listing tribunals that were subject to initial jdx of appeal division, leaving all other decision makers covered by the Act to the Trial Division. Impact: exclude first-level decision makers in immigration and refugee matters, and Immigration and Refugee Board, from the list of decision makers that were allocated to the Appeal Division. b) To the extent that a claim for damages is made on basis of any conduct of bodies listed in s. 28(1) of Federal Act, proceedings come w/n original jdx of either fed ct or appropriate prov court, not federal appeal court. c) By virtue of 18(5) and 28(2), the judicial review jurisdiction of the federal court and the federal court of appeal is conditions on the extent to which the decision under review is subject to a statutory appeal. d) Where a statutory appeal right exists, must be exercised excluding possibility of judicial review under federal courts act.

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4. Claim for damages in the Federal Court: action against crown and fed statutory authorities commenced by action under s. 17 Federal Courts Act. Federal court may, if it considers appropriate, direct that an application for judicial review by treated and proceeded with as an action. 5. Forms of Permanent Relief - Statutory Appeals: scope of appellate provisions varies greatly, but at their broadest, authorize judicial reversal of decision under attack on both questions of law and fact, sometimes after a complete rehearing of the matter in issue. XIII. REMEDIES A. Forms of permanent relief 1. Statutory Appeals: at their broadest, remedies allow judicial reversal of decision. Statutory appeals - consult statute b/c it may provide more extensive mode of relief than allowed under principles of judicial review. 2. Judicial review a) Collateral attack: in proceedings where the challenged administrative action or inaction is the direct focus of the pleadings and of the remedy sought. Collateral attack is not a matter of right but should be circumscribed by judicial discretion. ( an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.) b) Direct attack: (look at others notes) 3. Effects of Certiorari relief: has effect of leaving the authority under attack with no residual jurisdiction in the matter. Certiorari sought to quash a decision already taken (often sought together with mandamus) 4. Limits on mandamus relief: mandamus is sought to compel that decision be re taken in accordance with the law. Certiorari would be redundant b/c decision already taken is a nullity, instead need mandamus b/c decision maker has duty to decide according to law. a) Mandamus is appropriate to overcome the inaction or misconduct of persons charged w/ performance of duties of a public nature. Before remedy can be given, must prove: (1) A clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced (2) The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not under obligation to perform (3) The duty must be purely ministerial in nature, plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers (4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remed.y B. Interim and interlocutory relief and stays of proceedings 1. Introduction: availability of interim relief to halt admin proceedings - whether relief takes form of stay of proceedings, an interlocutory injunction, or an order under the relevant legislation or rules on judicial review procedures - is subject to the same principles that govern the availability of interim injunctions in the private domain. It is possible to seek interlocutory relief in aid of administrative process - to prevent actions being taken by those who are subject to the admin process pending the conclusion of a hearing of an investigation. 2. Stays of the Administrative process a) Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd: (1) Tests: Three main tests (a) Preliminary and tentative assessment of the merits of the case. Asking litigant who seeks interlocutory injunction can make out a prima facie case. Injunction will be refused unless he can. (b) Whether the litigant who seeks the interlocutory inunction, would, unless injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. Some judges consider if granting it would cause irreparable harm to the other party if main action fails. (c) Balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. (2) Rule: An interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in the balance of convenience and weighted together with the interest of private litigants. (3) Reasoning: a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. Public interest must be weighed as part of the balance of convenience: s. 24 Charter clearly indicates that the remedy sought can be refused if it is not considered by the court to be appropriate and just in the circumstances.

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(4) Conclusion: ct of appeal erred,- it mens that interlocutory stay of proceedings may be granted as a matter of course whenever a serious argument is invoked against the validity of legislation, or at lease whenever a prima facie case of violation of Charter , will normally trigger a recourse to the effect of s. 1 Charter. If this is what the Court of App meant, it was wrong. (5) Held: allow appeal and set aside stay of proceedings ordered by manitoba court of appeal C.The Discretion of the Court 1. Introduction: to deny relief based on statutory right of appeal, prematurity and delay, mootness, lack of practical utility, misconduct of the applicant, waiver, balance of convenience, public interest. 2. Alternative Remedies - Statutory Appeals a) Harelkin v. University of Regina: student asked to withdraw from unis faculty of social work. Appeal to uni dismised w/o hearing. Applied for certiorari and mandamus instead of taking statutory right of appeal to committee of uni senate. Application allowed by Sask Queens Bench, reversed by Ct of Appl. (1) Reasoning (a) Failure to respect principle audi alteram partem and issuance of the writs ex debito justitiae: both certiorari and mandamus are discretionary. Issue of whether decision of council was nullity from which there could be appeal. Held that breach of the rules of natural justice did not nullify a decision. In alternative held, even if the effect of the breach was to nullity the councils decision, a fair reading of the relevant appeal provision led him to the conclusion that such nullities were subject to it. (b) Whether appellants right of appeal to Senate Committee was an adequate alternative remedy: The Balance of Convenience: there was nothing in unis statute or bylaws w/ respect to procedures to be followed by the senate appeals committee. Students should not have assumed that committee would deny him hearing, and become one body erroneously failed to give natural justice the committee would too. i) Reasons why appeal should be taken form of trial de novo rather than pure appeal; why appeal should not be given strict meaning: 1) nothing act states that record will be transferred to committee on appeal, 2) uni bodies are not like cords, records are not kept to facilitate quasi judicial proceedings, 3) members of uni appeal committee are not trained in the law ii) Here, committee would not have been confronted w/ adverse finding b/c committee would have been entitled to set aside boards decision as a matter of law - presuming committee would not have erred in law. iii) Rule: If public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy. If there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice. iv) Council committees refusal to grant a rehearing to appellant is not a sufficient reason, for issuing certiorari and mandamus. (2) Held: appeal dismissed. b) Canadian Pacific Ltd v. Matsqui Indian Band: (1) Issue: whether judge properly exercised his discretion in refusing to entertain the respondents application for judicial review thereby requiring respondents to pursue their jurisdictional challenge through the appeal procedures established by the appellant bands under the Act (2) Analysis: a (a) Factors to consider in determining whether applicant should proceed through judicial review or statutory appeal procedure: i) Convenience of the alternative remedy ii) Nature of the error iii) Nature of the appellate body (b) Should ask question is an appeal tribunal established under Act an adequate forum for resolving, the respondents jdx challenge? (c) Not reasonable for judge to conclude the appeal tribunals are an adequate forum. Hearing before tribunal will allow for a wide ranging inquiry into all of the evidence. When parliament required bands to establish appeal procedures on both the classification and valuation aspects of the assessment process, parliament must have believed that the appeal tribunals would be capable of resolving the issues on which they had authority to adjudicate. Otherwise, the existence of a requirement that appeal procedures be established makes no sense. (3) Can use following factors in exercising discretion: (a) Appeal tribunal is adequate on basis that it is far reaching and extensive inquiry could be conducted in which both sides can fully present their evidence and arguments

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(b) To deny judicial review does not prevent them from obtaining full judicial examination of issue of whether their lands are in the reserve (c) The purpose of parliament in enacting the Indian tax assessment scheme was to promote the development of aboriginal govt institutions. Its preferable for issues concerning Indian tax assessments to be resolved within the statutory appeal procedures developed by aboriginal peoples. Preferable that assessment errors be corrected w/n institutions of the bands. 3. Statutory Appeals to the Courts: Arises when applicant raises judicial review rather than using statutory right of appeal to the courts provided for in the empowering statutes. Generally, if the grounds on which the applicant for judicial review is relying could have been raised in the context of a statutory appeal, the application will be dismissed. 4. Alternative Methods for Establishing Rights or Enforcing Observance of Statutes and Orders: a) Shore Disposal Ltd. v. Ed de Wolfe Trucking Ltd: The Court, in proceedings where plaintiffs are virtually private prosecutors, should not grant declaration that the defendant has committed an offense. This may lead to advice to Board and harsher penalties for defendant than legislature intended. D. Prematurity: aka absence of ripeness, involves an assertion by the court, that while the applicant may potentially have a good cause of action, the matter is inappropriate for judicial intervention at present. 1. Reasons: There is a possibility that the matter may be resolved internally or w/o the need for court intervention. Court may take into account legal question whether statutory regime itself obliges the tribunal to have first crack at resolving the issue in question. 2. Advantage of allowing tribunal to proceed to a conclusion on the issue in question is that it will thereby be building an evidential record that will facilitate subsequent judicial review. Ultimate judicial review better performed if tribunal is given opportunity to make an initial determination of questions of law,fact, mixed. 3. Howe v. Institute of Chartered Accountants of Ontario; issues of prematurity and availability of adequate right of appeal. Applicant for relief was confronted by argument that tribunal had not finally ruled on the issue and that there was a right of appeal from the ultimate decision of the tribunal anyway. a) Facts: charged w/ professional misconduct. Institute gave disclosure but investigating committee refused to release report b/c had confidential and privileged information. H applied for judicial review claiming that he was entitled to discovery of this material. b) Reasoning: asked to rule on adequacy of disclosure made to date by the prosecution when court does not have means of gauging the significance of what has been disclosed against what is contained in the Johnston report. Not in a position to identify and weigh the non disclosure against the evidence actually given against the appellant. (1) Application is premature. Court will only interfere w/ a preliminary ruling made by an administrative tribunal where the tribunal never had jdx or has irretrievably lose it. (2) Should encourage application like this which have effect of fragmenting and protracting the proceedings except in the clearest of cases. Division Court correct in exercising its discretion not to grant prerogative relief in this case. c) Held: appeal dismissed. 4. Air Canada v. Lorenz: adjudicator in air case was acting for client in another unjust dismissal case against another employer under quebec. Air argued reasonable apprehension of bias. Applied for judicial review of ruling. Pending application, hearing did not proceed, 2 years elapsed before application heard. a) Conclusion: should wait until adjudicator makes ruling on case. If adjudicator finds in favor of employee then Air canada can make judicial review application on ground of bias. For now, it is premature. If adjudicator dismisses complaint then bias issue becomes moot. b)Factors to be considered: (1) Hardship to the applicant: but reviewing court would always have to decide allegations of bias when they are raised even before completing of admin process, this would give court no discretion in dismissing applications for prematurity. (2) Waste: allegations raised on day 6 of 23. If required to post phone challenge to proceeding on ground of bias until end of hearing, and application successful, resources devoted to last 18 days will be wasted. Proceedings were already on their way, quarter done. These facts reduce and mitigate this factor. (3) Delay: if Airs application unsuccessful on merits, it would have delayed determination of issues if Plaintiffs complaint. If application process before admin proceeding, may delay admin process or force vulnerable party to surrender/settle. (4) Fragmentation: review this may proliferate litigation. If allegation misconceived, then decision made by another adjudicator, aggrieved party can make another application for judicial review on other issues. Fragmentation of issues is wasteful of court resources and unduly burdens the administration of public programs. (5) Strength of case: no evidence to show how often appointment of adjudicators who practice labor and employment law. It may be unusual to represent both clients and management. Air did not satisfy this as a clear and obvious case of bias, but not frivolous either.

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(6) Statutory context: parliament conferred jdx to determine unjust dismissal complaints to minimize expense and delay to dismissed employees. Absence of right of appeal and inclusion of a strong preclusive provision in code is evidence that legislative intention to keep a min judicial oversight of the proceedings before adjudicators. Avoidance of delay and fragmentation of issues are factors to be given heavy weight. Rare a court will decide on merits of claim prior to adjudicators ultimate decision. c) Rule: test to be applied on application for judicial review when the applicant has alleged that an administrative tribunal was biased, and there is no right of appeal from that tribunal to another administrative body. Court should only interfere before the tribunal has rendered its final decision in exceptional circumstances. d) Reasoning: no authority for finding that allegation of bias constitutes exceptional circumstances justifying judicial review before the tribunal has rendered its final decision. e) Held: application dismissed. E. Mootness: if after initiating the proceeding, events occur which affect the relationship between parties so that no present live controversy exists then case is moot. F. Delay: if there is no limitation period or even w/n a limitation period, courts will occasionally deny relief to applicant on ground of undue delay (doctrine of laches). Delay in commencing proceeding may either go to jdx or discretion of reviewing court. Cases concern availability of alternative modes of relief once the limitation period has expired. Also an issue as to whether imposition of limitation periods can be accomplished by subordinate legislation or rules of court. Other limitation periods relate to type of decision makers. 1. Friends of the Oldman River Society v. Canada (Minister of Transport): by the time proceeding was instituted in ft ct, the project was 40% complete. Minister argues that fed ct of app erred in exercising its discretion to grant an order of certiorari to quash the ministers decision to approve construction of the dam. (certiorari and mandamus on grounds of unreasonable delay and futility) a) Reasoning (1) Delay: first ground judge used discretion to refuse prerogative relief. Rule: Unreasonable delay may bar applicant from obtaining a discretionary remedy, where the delay would result in prejudice to other parties who have relied on the challenged decision to their detriment, and the question of unreasonableness will turn on the facts of each case. (a) Ct of appeal was justified in exercising discretion. During Societys challenge to process, Alberta built damn, despite ongoing legal proceedings. Now substantially completed. No evidence that Alberta suffered prejudice from delay in taking this action, (2) Futility: namely, that environmental impact assessment under guidelines order would be needlessly repetitive in view of the studies that were conducted in the past. (a) Prerogative relief should only be refused on the ground of futility in those few instances where the issuance of a prerogative writ would be effectively nugatory. (b) Here, even at this late stage, not obvious that guidelines will not have influence over mitigative measures. b) Held: app ct did not err in interfering with the motions judges exercise of discretion to deny the relief sought. Appeal dismissed. 2. R.v.Consolidated Maybrun Mines Ltd: a) Issue: whether a pean court may determine the validity of an admin order on a collateral basis b) Reasoning: question of collateral attacks arises when relevant statute provides for no right of appeal to the court responsible for trying the charge. Problem raised by collateral attack requires us to take into account the legislatures decision not to confer the power to hear an appeal from the admin order on the court responsible for hearing the charge. (1) Question is: where no right of appeal confers express jdx on trial judge, the rule of law enables a penal court, here a prov court, to consider the validity of an admin order where a person is charged w/ failing to comply w/ such order. (2) In resolving problems of collateral attack, bear in mind role and importance of admin structures in the organization of the various sectors of activity characteristic of contemporary society. (3) 5 factors below. Determine legislatures intent as to the appropriate forum. Presumed that legislature did not intend to deprive citizens affected by govt actions of an adequate opportunity to raise the validity of the order. Interpretation process must determine whether the law prescribes a specific forum for doing so. (4) Where an attack on an order requires the consideration of factors that fall w/n specific expertise of admin appeal tribunal, strong indication that legislature wanted tribunal to decide question rather than court. (5) Where attack is based on considerations which are foreign to admin appeal tribunals expertise, suggests that legislature did not intend to reserve the exclusive authority to rule on the validity of the order to that tribunal c) Rule: 5 factors in considering whether a court can rule on the validity of an administrative order collaterally attacked in penal proceedings. (1) The wording of the statute from which power to issue order derives (2) The purpose of the legislation (3) The availability of an appeal

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(4) The nature of collateral attack (in light of the appeal tribunals expertise and raison detre) (5) The penalty on a conviction for failing to comply with the order. d) Application: Purpose of Act is to provide for protection and conservation of the natural environment. Clear indication that purpose of Act is not just remedy environment contamination but also prevent it. To allow appellants to collaterally attack the order at the stage of penal proceedings would encourage conduct contrary to the Acts objectives and would tend to undermine its effects. e) Conclusion: whether a penal court may determine the validity of an admin order on a collateral basis depends on statute under which order was made and must be answered in light of legislatures intent as to appropriate forum. It must be presumed that legislature did not intend to deprive a person to whom an order is directed of an opportunity to assert his rights. For this purpose, 5 factors are clues for determining legislatures intent as to appropriate forum for raising validity of an admin order. f) Held: considering purpose and procedural mechanism of EPA, guarantees person whom an order is directed can assert his rights, persons charged w/ failing to comply w/ an order issued under the Act cannot attack the validity of the order by way of defense after failing to avail themselves of the appeal mechanisms available under the Attack. g) Disposition: appeal dismissed. G. Misconduct of the Applicant: remedy denied because of the way in which the person seeking relief behaved. Usually, refusal of equitable relief. Who ever comes to equity must come with clean hands. 1. Homex Realty and Development Co. Ltd. v. Wyoming (Village): Principle of disentitlement where a Court because of conduct of applicant, will decline the grant of the discretionary remedy. a) Reasoning: H taken inconsistent and contradictory positions. Examinations and affidavits were protracted b/c of a lack of simple frankness bon part of president of H. Trying to get its land beyond reach of municipality regulations by means of checker-boarding. b) Held: appeal dismissed 2. Re Tomaro an City of Vanier: seeking mandamus for City did not issue license for body-rub parlour. Denied relief on basis that he had operated his body rub parlor anyway w/o license. Reversed on Appeal?! H. Waiver: relief denied based on waiver or acquiescence. Occurs where defect complained of is breach of the rules of natural justice or bias. Halifax-Dartmouth: denial of relief - failure of applicants to object at hearing to lack of notice on one of the charges, this being the basis for the application for certiorari. It is dangerous to participate in a hearing w/o at least objecting when you believe that the decision-maker is transgressing the rules of natural justice in some way. I. Balance of Convenience: refusal of relief b/c applicant had other avenues available OR on basis that there was a chance that the completion of the proceedings by the tribunal would eliminate the applicants concerns, is based on premise that it is more convenient to use alternative means of solving problem before OR as substitute for seeking judicial review. 1. In delay cases; question asked: whether admin process and third parties have been prejudiced by the applicants tardiness in commencing an application for judicial review. When disqualifying misconduct alleged, applicants behavior frequently is balanced against the admin convenience of the process that is being challenged. 2. Mining Watch Canada v. Canada (Fisheries and Oceans): Dept thought Fed environment assessment not necessary, only assessment by way of screening. Mining Watch applied for judicial review of the decision (public interest group) a) Reasoning: Dept acted w/o statutory authority. Determine what relief, any should be rewarded. M did not participate in assessment, did not bring evidence of dissatisfaction w/ assessment, or process, brought judicial review. Appropriate relief is to allow application for judicial review and declare that RAs erred in failing to conduct a comprehensive study. (1) In exercising discretion to grant declaratory relief w/o requiring parties to substantially redo the assessment, the result is to allow a process found not to comply w/ the requirements of the CEAA to stand in this case. (2) Rule: In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved. (3) To focus on Ms interest as a public interest litigant is the legal point to which the declaration will respond. No justification for requiring Red Chris to repeat the assessment process when there was no challenge to the substantive decisions made by the RAs. J. Money Remedies: - Ch. 19 1. Moneys mistakenly paid to and benefits mistakenly conferred on statutory authorities: Court says that recovery of moneys paid mistakenly should no longer depend on whether the error is one of fact as opposed to law. a) Kingstreet Investments Ltd v. New Brunswick (Department of Finance): claim for recovery of money paid under an unconstitutional use charge applied to night clubs when purchasing alcohol. (1) Reasoning: taxes were illegally collected. Crown cannot impose tax w/o authority of parliament/legislature. Collected pursuant to ultra vires legislation.

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(a) Rejecting immunity rule:Privileging policy considerations in the case ultra vires taxes threatens to undermine the rule of law. Why should individual tax payer bear burden of govts mistake? Unjust enrichment analysis is inappropriate before setting out proper restitutionary basis for repayment of ultra vires taxes. (b) Basis for Constitutional Remedy: Why Unjust Enrichment Framework is inappropriate: two categories of wrongdoing 1) restitution for wrongdoing, and 2) restitution for unjust enrichment. Here, based on constitutional principle that taxes should not be levied without proper legal authority. Choice of remedy is restitution based on constitutional grounds, b/c raises important constitutional principles. (c) Passing-On Defense: Province can defend by saying that appellants had passed on the cost of the charge. Premise is that tax payer passed on the burden of tax payments to other via price increases charged to its customers, the tax payer has no suffered a deprivation, the taxing authoritys enrichment was not at its expense, and it would receive windfall it if were awarded recovery. Reject the defense in its entirety. (d) Application of the Doctrine of Protest and Compulsion: not applicable here to ultra vires taxes. B/c crown should not be able to retain taxes that lack legal authority, doesnt matter if tax payer paid under compulsion and protest. If law is invalid, there should be no burden to prove this on tax payer. Disregard this doctrine. (e) Once immunity rule is rejected, no need to distinguish cases involving unconstitutional legislation and cases where delegated legislation is merely ultra vires in the administrative law scheme. Payment should not be viewed as voluntary as would prejudice tax payer. Rather, plaintiff entitled to rely on presumption of validity of legislation and on representation as to its applicability by the public authority in charge of administering it. (f) In cases where payments not made to public authorities pursuant to unconstitutional legislation or misapplication: courts should insist on compulsion in fact. The mere fact that payment was made in protest should neither be necessary nor sufficient to establish compulsion. Protest may accompany a voluntary payment and compulsion may occur w/o any evidence of formal protest. Insisting on compulsion is more principles and ensures that all similarly situated persons will be treated equally regardless of protest. (2) Conclusion: No award of compound interest as appellants did not engage in wrongful conduct on behalf of Province that might warrant moral sanction. The appellants are entitled to their costs in this Court and courts below. (3) Held: allow appeal in part, dismiss cross appeal. (cross appeal was by crown). 2. Money Remedies through Judicial Review: if public official is in breach of legal duty to remain specific sum of money from already allocated budget, this may be enforced by way of relief in nature of mandamus. 3. Tort liability for unlawful administrative action or inaction: a) Abuse of Power by Statutory authorities: potential tort liability of licensing authorities for misuse or abuse of power. Irrespective of the nature of the harm caused, certain govt functionaries enjoy immunity from suit as a result of the position that they occupy or the functions that they exercise. (1) McGillivray v. Kimber: pilot license revoked w/o complaint, notice, investigation. Sought damages for wrongful revocation. Successful at trial, reversed at NS Court on basis that damages not available against authority acting in quasi judicial capacity w/o proof of malice. Appealed (a) Rule: persons in positions of respondents exercising quasi judicial powers are only protected from civil liability if they observe the statutory rules conditioning their powers as well as the rules of natural justice. (b) Reasoning: no forefeiture language in by law, nothing amount to justification of dismissal. There is no citing of rule that protects admin officers from harm caused by acts that are quasi judicial done in admin proceedings (this principle exists for judicial officers). i) Damages cannot be nominal b/c consequences natural and intended of the respondents conduct in respect of which appellant is entitled to reparation. Gets damages for period beyond regular expiry date of the license. (c) Held: appeal allowed with costs. (2) Roncarelli v. Duplessis (a) Reasoning: respondent wrongfully caused cancellation of appellants permit and thus caused damage to the appellant. Respondent intentionally inflicted damage upon the appellant and therefore in absence of lawful justification, is liable to appellant for commission of fault. i) Damages: loss of value of liquor seized, profits from date of cancellation to expiration, personal damages for reputation, and diminution of the value of the good will. Total $33,123.55 w/ interest. (b) Held: appeal allowed with costs. b) Nelles v. Ontario: whether the province, ag, and crown attorneys had immunized from liability for malicious prosecution and for claims based on alleged charter violations. Held that proceeds could proceed against ag and crown, not govt. Answer boils down to public policy, and absolute immunity of these two not justified in public policy. Need right of private citizen to seek remedy when

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the prosecutor acts maliciously in fraud of his own duties w/ the result that he causes damage to the victim. Held, no absolute immunity for AG and Crown c) Odhavji Estate v. Woodhouse: victims estate bringing action against govt, police, chief (shot O while fleeing from robbery). (1) The action for misfeasance in public office: is a recognized tort in public office. Not restricted to a statutory prerogative power actually held. There is a broad range of misconduct that can be found an action for misfeasance in public office. (a)Two categories of tort of misfeasance i) Conduct that is intended to injure a person or class of persons (1) The fact that plaintiff has acted for express purpose of harming plaintiff is sufficient to satisfy each ingredient of the tort ii) Public officer who acts w/ knowledge that she has no power to do the act complained of and that the act is likely to injure the plaintiff. (1) Plaintiff must prove the two ingredients of the tort independent of one another (b) Rule: Elements: Misfeasance in a public office is an intentional tort whose distinguishing elements are: (1) Public officer must have engaged in deliberate and unlawful conduct in his capacity as a public officer (2) Public officer must have been aware both that his conduct was unlawful and that it was likely to injure plaintiff (3) (Must also prove tortious conduct was legal cause of injuries, and injuries suffered are compensable in tort law) (2) Issue: whether the statement of claim pleads each of the constituent elements of the tort. (3) Analysis: (a) Officers under stat duty to cooperate fully with SUI investigations. Decision not to cooperate is unlawful breach of duty. Failure of chief to ensure officers cooperate is also breach. Not plain and obvious that offices were faced with stark choice btn complying w/ SUIs request and abandoning their right to self incrimination. Cannot rely on potential conflict btn this to dismiss action. (b) Chief failed to segregate officers, but not ensuring they produced timely and complete notes, interviews in timely manner, accurate and complete accounts. Mere failure to discharge the obligations of oggice cannot constitute misfeasance in a public office. Defendants must be subjectively reckless or willfully blind to the possibility that harm will be a consequence of the alleged misconduct. Not a basis to strike the pleading. (c) Damages are not compensable. Even if they could prove elements, actions for misfeasance in public office must fail. Rule: compensation for psychiatric damages is available in instances in which the plaintiff suffers from a visible and provable illness or recognizable physical or psychological harm. If could prove such damages, would have to prove that it was caused by alleged misconduct and that it was of sufficient magnitude to warrant compensation. (4) Holding: allow appeal in respect of the actions for misfeasance in a public office. Plaintiffs should not be deprived of the opportunity to prove each of the constituent elements of the tort. K. Vancouver (City) v. Ward: 1. Facts: During a ceremony in Vancouver, the city police department received information that an unknown individual intended to throw a pie at the Prime Minister who was in attendance. Based on his appearance, police officers mistakenly identified W as the would-be pie-thrower, chased him down and handcuffed him. W, who loudly protested his detention and created a disturbance, was arrested for breach of the peace and taken to the police lockup. Upon his arrival, the corrections officers conducted a strip search. While W was at the lockup, police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The detectives subsequently determined that they did not have grounds to obtain the required search warrant or evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and Freedoms against several parties, including the Province and the City. 2. Reasoning: a) Rule - Damages: The language of s. 24(1) is broad enough to include the remedy of constitutional damages for breach of a claimants Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case. (1) Charter breach: The first step in the inquiry is to establish that a Charter right has been breached; (2) Functional justification of damages: the second step is to show why damages are a just and appropriate remedy (are functionally justified) (a) For damages to be awarded, they must further the general objects of the Charter. The function of compensation, usually the most prominent function, recognizes that breach of an individuals Charter rights may cause personal loss which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and

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cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors. Achieving one or more of these objects is the first requirement for appropriate and just damages under s. 24(1) of the Charter. (3) Countervailing factors: basic requirement for the award of damages to be appropriate and just is that the award must be functionally required to fulfill one or more of the objects of compensation, vindication of the right, or deterrence of future Charter breaches. (a) Once the claimant has established that damages are functionally justified, the state has the opportunity to demonstrate, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. (b) Other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be appropriate and just (c) Countervailing considerations include the existence of alternative remedies. Claimants need not show that they have exhausted all other recourses. Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy are available in the particular case that will sufficiently address the Charter breach. (d) Concern for effective governance may also negate the appropriateness of s. 24(1) damages. In some situations, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. (4) Quantum of s 24(1) damages: If the state fails to negate that the award is appropriate and just, the final step is to assess the quantum of the damages. To be appropriate and just, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed. (a) A principal guide to the determination of quantum is the seriousness of the breach, The more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be. In the end, s. 24(1) damages must be fair to both the claimant and the state. (b) damages must be fair or appropriate and just to both the claimant and the statIn considering what is fair to both, a court may take into account: i) The public interest in good governance ii) The danger of deterring governments from undertaking beneficial new policies and programs, and iii) The need to avoid diverting large sums of funds from public programs to private interests. iv) Damages under s. 24(1) should also not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. 3. Analysis: a) s. 24(1) is broad enough to include the remedy of damages for Charter breach b)Strip search: (1) Here, damages were properly awarded for the strip search of W. This search violated his s. 8 Charter rights and compensation is required, in this case, to functionally fulfill the objects of constitutional damages. (2) Strip searches are inherently humiliating and degrading and the Charter breach significantly impacted on Ws person and rights. The correction officers conduct which caused the breach was also serious . (3) The state has not established that alternative remedies are available to achieve the objects of compensation, vindication or deterrence with respect to the strip search. (4) Considering the seriousness of the injury and the finding that the corrections officers actions were not intentional, malicious, high-handed or oppressive (did not touch him or take off his underwear), the trial judges $5,000 damage award was appropriate. Combined with the police conduct, the impingement on W also engages the objects of vindication of the right and deterrence of future breaches c) Seizure of car: (1) Seizure of the car violated Mr. Wards rights under s. 8 of the Charter. (2) W has not established that damages under s. 24(1) are appropriate and just from a functional perspective. The object of compensation is not engaged as W did not suffer any injury as a result of the seizure. Nor are the objects of vindication of the right and deterrence of future breaches compelling. While the seizure was wrong, it was not of a serious nature. A declaration under s. 24(1) that the vehicle seizure violated Ws right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures. 4. Held: I conclude that damages were properly awarded for the strip search of Mr. Ward, but not justified for the seizure of his car. I would therefore allow the appeal in part.

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L. Canada (Attorney General) v. TeleZone Inc: TeleZone Inc. claims it was wronged by the decision of the Minister of Industry Canada that rejected its application for a licence to provide telecommunications services. It pleads breach of contract, negligence, and, in the alternative, unjust enrichment arising out of monies it had thrown away on the application 1. Reasoning: a) In the present case, the Ontario Superior Court has jurisdiction over the parties, the subject matter and the remedies sought by TeleZone. That jurisdiction includes the authority to determine every legal and factual element necessary for the granting or withholding of the remedies sought unless such authority is taken away by statute. The Federal Courts Act does not, by clear and direct statutory language, oust the jurisdiction of the provincial superior courts to deal with these common law and equitable claims, including the potential unlawfulness of government orders b) Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. Any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language c) Nothing in the Federal Courts Act satisfies this test. The explicit grant to the provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that Act (as well as s. 21 of the Crown Liability and Proceedings Act) directly refutes the Attorney Generals argument. All the remedies listed are traditional administrative law remedies and do not include awards of damages. If a claimant seeks compensation, he or she cannot get it on judicial review, but must file an action. d) The grant of judicial review is itself discretionary and may be denied even if the applicant establishes valid grounds for the courts intervention. e) s. 8 of the Crown Liability and Proceedings Act, which codifies the defence of statutory authority, is evidence that Parliament envisaged that the lawfulness of administrative decisions could be assessed by the provincial superior court in the course of adjudicating a claim for damages. f) Parliament has stated that provincial superior courts possess the concurrent necessary jurisdiction to dispose of the whole of a claim and this includes any attack on the validity of the Ministers decision where this issue is essential to the cause of action and where adjudicating the matter is a necessary step in disposing of the claim. g) It is true that the provincial superior courts and the Federal Court have a residual discretion to stay a damages claim if, in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. However, where a plaintiffs pleading alleges the elements of a private cause of action, the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review. If the plaintiff has pleaded a valid cause of action for damages, he or she should generally be allowed to pursue it. 2. Collateral attack: The appropriate factors to apply in determining whether the Court is confronted with an impermissible collateral attack on an administrative order are (1) the wording of the statute from which the power to issue the order derives; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of the collateral attack in light of the tribunals expertise and raison dtre (including whether the legislature intended to confer jurisdiction to hear and determine the question raised); and (5) the penalty on a conviction for failing to comply with the order a) AGs argument of this fails b/c: (1) The doctrine of collateral attack may be raised by the Attorney General in the provincial superior court as a defence if he or she believes that, in the particular circumstances, to do so is appropriate. However, the possible availability of the defence is not an argument against provincial superior court jurisdiction. Nor does it justify inserting the Federal Court into every claim for damages predicated on an allegation that the governments decision that caused the loss was invalid or unlawful. (2) TeleZone is not seeking to avoid the consequences of [the ministerial] order issued against it ( Garland, at para. 72). On the contrary, the ministerial order and the financial losses allegedly consequent on that order constitute the foundation of the damages claim (3) The Attorney Generals argument fails even if one takes a more expansive view of the doctrine of collateral attack: It is also implicated in situations where someone, in asserting a civil claim for monetary or other relief, needs to attack a law or order that the defendant is advancing as justification for the actions on which the plaintiffs claim is based. 3. Analysis: Here, Ts claim as pleaded is dominated by private law considerations. It is not attempting to nullify or set aside the decision to issue licences. Nor does it seek to deprive the decision of any legal effect. Ts causes of action in contract, tort and equity are predicated on the finality of that decision excluding it from participation in the telecommunications market. The Ontario Superior Court of Justice has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages. There is nothing in the Federal Courts Act to prevent the Ontario Superior Court from adjudicating Ts claim. 4. Conclusion: that the grant of concurrent jurisdiction to determine claims against the Crown to the provincial superior courts negates any inference the Crown seeks to draw that Parliament intended the detour to the Federal Court advocated by Grenier. The TeleZone claim as pleaded is dominated by private law considerations. In a different case, on different facts, the Attorney General is free to raise collateral attack as a defence and the superior court will consider and deal with it.

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5. Held: The Superior Court of Ontario has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages. There is nothing in the Federal Courts Act to prevent the Ontario Superior Court from adjudicating this claim. I would dismiss the appeal with costs. Appeal dismissed w/ costs.

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