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ORIGINS OF PROCEDURAL FAIRNESS
1) Nicholsons case: There should be a measure of due process and fairness irrespective of
the delegate we are talking about, i.e. admin, quasijudicial or judicial.
2) Martineau: Confirms the above-stated rule and further states that public bodies
exercising legislative functions may not be amenable to judicial supervision.
3) Cardinal: PFR applies to every public body which is not making a legislative decision,
and which affects the rights, interests and privileges of individuals, so if the decision is
legislative the PFR does not apply.
4) Knights case: 1
st
actual trigger: 3 Prong Test: This case gives a distinction between
legislative powers and admin powers, and indicates which legislative decisions the duty
of PFR not applies to. Legislation can bar Procedural fairness. 1
st
Prong: PFR does not
necessarily apply to preliminary decisions. However, delegates performing
investigations or recommendations may be an exception and here PFR may apply at
an early stage. This was confirmed in the case of Re Abel. Here the Board was merely
an advisor to the Cabinet, but PFR applied, also applies where there is a close connection
between the recommendations and the persons interest at stake, i.e. where the
recommendations effectively determine the outcome. Also, in the case of Dairy
Producers vs. Sask it was held that the investigations here were too far removed from the
ultimate outcome. Too many steps were removed from the actual decision affecting
rights. 2
nd
Prong: Relationship existing between the legislative body and the individual.
We are concerned with public law action. Was the decision making made pursuant to a
public law source, a statute, a regulation, Royal prerogative? Admin law applies to those
who exercise these powers. However, in relation to employment cases look at the case of
Dunsmuir as KNIGHT is no longer good law apart from discussing Prongs. It says the
terms and conditions of an employment contract and the relevant statutes and Acts
would govern the employment. 3
rd
Prong: Effect of the decision on an individuals
rights, privileges, interests, property (May consult the case of Hutfield).
5) Old St. Boniface: TEST FOR LEGITIMATE EXPECTATION (2
nd
Trigger) The
opportunity to make representations in circumstances where there would be otherwise no
opportunity because that opportunity was promised to them. This may also be done by
conduct or where the party is led to believe that the admin body wont proceed without
first consulting them. Statute may preclude this promise and Common law may not
intervene.
6) Libbey (1999): The test for L.E was illustrated more clearly and the Ontario Court of
Appeal stated that where there is detrimental reliance and the person relies on that
undertaking to his detriment. A practice or conduct may also give rise to L.E. The
language giving rise to L.E. must be clear, unambiguous and unqualified. The
doctrine of L.E. does not give rise to SUBSTANTIVE RIGHTS. This means that the
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doctrine is about procedural fairness and not about substantive rights. Has to do with
process, eg. Oral hearing, consultation, right to counsel, time limit etc.
7) Mount Sinai Hospital: for the abovementioned principle. Promises that go to substance
are not covered. If there are doubts whether an entitlement is procedural or substantive,
one must regard it as procedural. This case also introduces in the admin realm the
doctrine of PUBLIC PROMISSORY ESTOPPEL in cases of substantive rights.
Detrimental reliance must be there.
8) AG vs Mavi (2011): SCC refused to apply detrimental reliance, therefore cases that
talk of detrimental reliance are no longer good law in the wake of Mavi. The language
giving rise to L.E. must be clear, unambiguous and unqualified. Promises that go to
substance are not covered.

EXCEPTIONS TO COMMON LAW PFR
1) Martineau: Judge Dikson commented that a purely ministerial decision based on
broad policy grounds would typically afford the individual no procedural protection.
Any attack on such a decision must be based on abuse of discretion. These functions are
tantamount to the types of legislative functions that these bodies perform. So Substantive
Judicial Review is the only attack available in such situations where there is abuse of
discretion.
2) Canada (AG) vs. Inuit Tapirisat of Canada: Concerns a tariff regulation process. See
notes for facts. There was a statutory right of appeal. No hearing was awarded. SCC
stated that Cabinets decision could only be reviewed on the issues of exceeding
jurisdiction. No Procedural fairness existed in such a case. It must be noted that the
application of this case was quite general as it applied to one actor (BELL Canada) and
that in a Monopoly Sector. So it bore more resemblance to an adjudication decision
than legislative. The fact scenario here wasnt suitable.
3) NAPO (1977): National Anti-Poverty Organisation: Almost same facts as above case
(S.64 and CRTC involved). Issue here was whether the Cabinets decision could be
quashed due to an error of PFR? NAPO was not given an opportunity to be heard.
Trial judge distinguished NAPO with INUITs case and stated that here the decision
involved a handful of entities. These were in fact two BELL Canada companies. The
COA did not dismiss the distinction. This was a matter of private convenience as opposed
to INUIT which was a matter of public convenience. The court concluded that the
decision was legislative and therefore no PFR exists.
4) Canadian Ship Owners Association (1995): The more personal the nature of the
decision, the more it would resemble an adjudicative decision and the decision would
lose its legislative nature.
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5) Canadian Association of Regulated I mporters: A legislative decision in nature would
set out GENERAL RULES which would apply to a large number of people. This is
counterpose to a decision affecting one single individual.
6) Homex Realty: The more general the rule, the more likely it would be viewed as
legislative, but if it applies to an individual or a handful of people (specific), it would
be viewed as administrative. Here the developer did not carry out certain functions
which were agreed upon by him and the Municipality. M enacted bylaws disallowing H
to use certain features. Another bylaw was passed decertifying the subdivision plan. H
said these bylaws were against natural justice and violated PFR. SCC held that the CL
PFR would supply emission of the legislature and afford the subject an opportunity of
being heard. The bylaw looked like exercise of legislative powers, however looks
werent enough. The bylaw was enacted by M to go after H and he was a target.
Decision was therefore specific in nature as it applied to a single individual who was
targeted so PFR applies.
7) Thamotharem: (REFUGEE CASE) Agency Guidelines; T, a Tamil citizens refugee
application was denied. T claimed that Guideline 7 deprived refuges of their right to a
fair hearing. Guidelines may be implemented by Agencies or Admin actors to ensure
that all cases receive the same treatment. No statutory authority is required to make these
guidelines. However, guidelines must not be construed as law and applied in that
manner. This fetters an admin actors right to exercise discretion. This can only be
done by exercise of a statutory power to create HARD LAW. Note that where guidelines
require cabinets approval, it may become mandatory and take shape of delegated
legislation. But where a single delegate has the power to make rules and guidelines both,
that require cabinets approval, it may be the case that the legislature did not intend to
give a binding effect to the guidelines that it intended to give to the rules.

CHARTER AND BILL OF RIGHTS
Life, liberty and security of person
S.7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
1) Irwin Toys case: The word Everyone does not include companies.
2) Howard vs. Stoney Mountain: Penitentiary case, disciplinary offences, risked losing earned
remission. Request to Counsel was denied in this case. So, does S7 term Fundamental Justice
include the right to counsel, and would a right to counsel apply in prison disciplinary
proceedings? COA stated that the Right to be heard at common law does not include a right
to Counsel. So, does S.7 change that? Yes, where s.7 applies, and where life. Liberty and
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security of a person (inmate) are at stake, such as remission benefits in this case that were gained
from good behaviour. The court in assessing S.1 justification observed that there is no absolute
right to Counsel in all cases U/S 7. One must look at the circumstances in each case.
3) Gough: Prison disciplinary proceedings; s.7 and disclosure.
3) Singh vs Canada: This was a Refugee case. Determination of refugee status. The process was
entirely documentary (written) and no oral hearing was given. The Statute itself precluded an
oral hearing and required a documentary procedure. So, CL PFR could not be invoked. So
we will have to see if S.7. applies. So there has to be deprivation of life, liberty, or security of a
person. Prospect of being deported, facing TORTURE and other persecutions all constitute
deprivation for the purposes of security of a person. So the phrase security of a person, says
Justice Wilson encompasses freedom from threat of punishment or suffering. It does not matter if
Canadian Govt itself tortures the individual. It is sufficient that the Canadian Govt would put in
place a process that would eventually put that person to a risk of being punished or tortured. This
is sufficient to trigger s7. So once s.7 is triggered, what about fundamental justice? According
to Justice Wilson, at the very least it includes a notion of PFR. However, it does not always
require oral hearings, nor does s.7import a guarantee with it that an oral hearing would be
awarded. Sometimes written submissions are adequate, such as in the case of BAKER. So,
when does s.7 REQUIRE AN ORAL HEARING? Where serious issues as to the Credibility
of the witness are involved, in other words where the delegate has to weigh credibility to make a
decision, which cant be done solely on the basis of written submissions as per Wilson. So, in
this case, the court concluded that s.7 was violated because there was no oral hearing. S.1
justification was not adequate and the Govt failed to demonstrate a reasonable limit. The
remedy awarded was that the appellant was entitled to an oral hearing. The Act was declared
unconstitutional.
NOTE: the above case demonstrates that even where the statute provides for a procedure,
and if that procedure violates a s7 right, then the courts would substitute the procedure
provided by statute with a more suitable and fair procedure.
4) DEHGHANI (1993) 1.S.C.R: Mr. D was a citizen of Iran and arrived in Canada. Upon entry
he claims Refugee status. Issue here was whether he could get an oral hearing at the
Preliminary stage of his refugee assessment. The court stated, not necessarily. The court in this
case emphasized on the fact that an oral hearing at this stage would be imposing a burden on
the delegate and would impair or obstruct the delegate from exercising his/her statutory
functions. So even where a charter right is engaged, there is no absolute guarantee of an
oral hearing.
5) Blencoes case: Security of a person in relation to Psychological Stress.
6) Wilsons case: Limitations placed on an employee to practice his/her regulated profession
may amount to a limit on liberty.
CANADIAN BILL OF RIGHTS Confined to Federal Level of Govt.
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Recognition and declaration of rights and freedoms
1. It is hereby recognized and declared that in Canada there have existed and shall continue to
exist without discrimination by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law;
2 (e): deprive a person of the right to a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations.
1) Smith Kline: s.1(a) Due process definition: Due process requires in addition to a fair
hearing a whole process which provides of making of a decision authorised by law a
means of rationally relating the facts in a case to criteria legally prescribed by the
Parliament.
2) Singhs case: The really strong interest in the outcome of the case was sufficient to
trigger application of s.2(e) of BORs. Look at the nature of the legal rights at issue and
the severity of the consequences to the individual concerned.
3) Central Cottage: Depends on a case to case basis.

CONTENT OF PFR: Audi Alteram Partem (RIGHT TO BE HEARD)
1) Martineau: PFR and its content would vary according to each case. Principle of natural
justice is that every individual must be given a fair opportunity to be heard.
2) Dehghanis case: The procedural obligations must not be such to frustrate a delegates
statutory obligations. Parliaments wishes to carry out a procedure in a certain manner
must be given regard by the court.
3) BAKER VS CANADA: (I) Lays down the test for quantum of PFR. Content of the PFR
is variable and depends on a case to case basis.(II) Lists specific variable: (a) Nature of
the decision being made, the more court like, the more procedural protection. (b)
Nature of the statutory scheme and the terms of the statute pursuant to which the
body operates. SCC states that greater protection would be required where there is no
appeal provided by the statute and when the decision is determinative of the issues and
any further requests cannot be submitted. (c) The importance of the decision to the
individual or individuals affected. SCC notes that the more important the decision to
the lines of those affected and the greater the impact on the person, the more stringent the
procedural protections that will be mandated. (d) LEGITIMATE EXPECTATIONS of
the person challenging the decision. If one has a L.E and if that L.E is triggered (same
criteria must be followed i.e. triggers above), the content flows from the nature of the
promise, conduct or belief. It is a L.E. that flows from a promise or undertaking. It must
be noted that L.E. would not lead to a substantive outcome. If a substantive promise is
made however, and a claimant is led into believing that a certain outcome would be
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reached on his case, then fairness principles would require more procedural protection.
So the presence of a substantive promise may boost up the content of PFR. (e) The
choice of procedure made by the agency itself. We see here an element of deference.
The SCC is concerned with the choices made by the agency itself. Weight must be given
to the choices made by that agency itself and the institutional constraints on that agency.
So, this supports the notion that an agency should not be burdened with procedural
constraints that would impede in its functions as in DEHGHANI .
4) Suresh vs Canada: TORTURE AND NATURE OF INTEREST
5) Central Ontario Coalition (1984): When NOTICE is required and what sort of notice
has to be given. The Ontario Hydro Plan included areas that were not part of Western
Ontario and so all the people in town who were affected by the new plan found out about
the ultimate decision and these folk went to the divisional court to quash the decision of
the Regulatory Board that approved the plan. The court construed that the Notice was
entirely inadequate for several reasons: (1) The Notice did not meet the requirements of
the notice required under the Act that governs the Ontario Hydro hearings. This was a
statutory objection, and therefore the Notice was contrary to what the Statute required.
(2) The Notice also did not meet the requirements of Common Law Procedural Fairness,
because the property rights of the members of the public were affected, and therefore
they were entitled to PFR at common law, and the notice was in adequate. The TEST
whether the notice was proper is an objective one. Was the notice adequate from the point
of view of a reasonable person? So the notice given by Ontario Hydro was not reasonable
since it referred to South Western Ontario and the residents who brought the action did
not believe that they were part of South Western Ontario. The geographical description
was therefore too vague, which wasnt supported by Maps even. Thus the decision made
by the regulatory board was quashed.
6) CI BA-Geigy (1994): DISCLOSURE: Consideration must be given to the duties that a
board exercises in public interest and the level of disclosure requested. One must not
impose so many restrictions to obstruct the ability of the tribunal to get the job done.
Deference must be shown to the board that performs economic regulatory functions.
Admin efficiency is given consideration.
7) Charkaoui : In some cases the level of disclosure might even reach criminal standards
(i.e. very high). This was a s.7 decision. The SCC held that limitations on access to
information in this case were justified on National Security grounds.
8) Blencoe: The concept of DELAY as an abuse of process was canvassed by the SCC in
this case. The SCC was to decide whether the delay had produced an unfair hearing.
Prejudice by an unfair hearing was not established on facts in this case. However, SCC
did realise that there could be situations where harm of this sort could arise. So where
can abuse of process arise due to extended delay? SCC suggested that unacceptable
delays may still amount to abuse of process even where the fairness of proceedings
itself has not been compromised. Instances where a person has been affected so much
that the system itself is brought into disrepute. So in order to amount abuse the delay
must have been unreasonable or inordinate and must taint the very proceedings. The
delay must be causally linked to the oppression itself in order to attack fairness.
9) BAKER VS CANADA: ORAL HEARING: Must look at this case to ascertain what the
quantum of procedural entitlements is. However, in this case an oral hearing was denied
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and it was held that the opportunity to submit written reasons were sufficient. This case
did give some indicators where an oral hearing might be allowed: (i) Oral hearings are
required where the credibility of a person becomes a factor in the outcome, e.g. serious
reputational issues at stake, for instance where one could be stripped of a license to
practice law or medicine (Regulated Professions), or where everything turns on
believing a witness. (ii) The affected persons level of education or lack of familiarity
with the proceedings that affects his or her ability to make written submissions. So
naturally if a person has limited education and cannot properly express himself through
written submissions, then an oral hearing may be warranted. (iii) General observation: An
oral hearing may be awarded where a Charter or Bill of Rights section has been
engaged. However, an oral hearing is not an absolute right even under the Charter or the
Bill, but jurisprudence has always required an oral hearing where such a right is engaged.
10) Mens Clothing Manufacturing: COUNSEL: is not a guaranteed right. However,
counsel may be permitted where there is a legal complexity of the issue before the
tribunal, the more complex the issue the more likely that the tribunal would require
counsel. The nature and complexity of the facts were an issue in this case. (Also see
Howard v Stoney above).
11) I nisfil: CROSS EXAMINATION: Is not an absolute right, no breach of PFR if not
allowed by delegate. All that is required is a fair opportunity to contest the prejudicial
decision or statement. It is not a necessary ingredient of natural justice that one who
has submitted relevant evidence in writing or ex parte must also be produced for cross
examination provided that the evidence is disclosed and adequate opportunity has been
afforded to the individual to prepare a reply to it. So generally cross examination does
occur in adversarial proceedings that involve conflicting evidence where credibility is at
issue. In such situations cross examination may only be the way through which truth
could be extracted from contradicting evidence.
12) BONDs case: EVIDENCE: Admissibility of evidence depends on whether it is relevant.
To determine relevance one looks at the Notice and other documents that describe the
nature and the subject matter of the proceedings, and evidence that falls within the
parameters of these documents is presumptively relevant, thus admissible. Weight; not all
evidence is of equal probative value. Delegates must assess whether the evidence is
reliable and persuasive. In fact, delegates are permitted to omit things like hearsay.
Hearsay evidence is generally admissible in administrative proceedings. HOWEVER
where the delegates decision is a serious one having serious consequences on the person
the decision relates to, a decision that is based entirely on hearsay may in fact rise to a
level where it violates procedural fairness.
13) BAKER VS CANADA: DUTY TO GIVE REASONS (For PFR): There was no general
obligation either under the Common Law or s.7 Charter to give reasons. However, this
case changed the position and provides indications where reasons might be required. It
must however be noted that the right to reasons is not an absolute one even after this case.
Indicators are: (i) The decision has an important significant affect on the individual
OR/AND (ii) Where there is a statutory right of appeal the duty of PFR would require a
written explanation for the decision.
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14) DUNSMUI R: DUTY TO GIVE REASONS (In Substantive Review cases): The SCC
discovered the adequacy of reasons in deciding whether a decision was substantially
reasonable or not.
15) Newfoundland Nurses case: There was a little uncertainty when it came to drawing a
distinction between providing reasons for PFR purpose on one hand and substantive
review on the other. In this case the SCC decided that for PFR the question really is; is
there an obligation to provide reasons and do those reasons exist, and the adequacy of
the reasons then becomes a consideration when we examine the nature of the decision
itself in a substantive review analysis, whether the outcome/decision was reasonable or
not.
16) Patel v Canada (1998): HE OR HE WHO HEARS MUST DECIDE: A delegate must
not sub-delegate. Application of Permanent Residence by the Applicant, but his son was
deleted from the application because the visa officer considered that he was not a
dependant as he was not a genuine student. The original visa officer was then transferred
by the time the matter was sent back for reconsideration. The new visa officer reviewed
the same file which included the notes of the previous officer, and the new officer also
dismissed the reapplication. So did he/she or hear decide? The court concluded that
reliance on the interview notes of the former visa officer tainted the whole decision. It
was hard, even impossible to determine the extent of influence of the old interview
notes on the new final decision. So the officer who heard did not in fact decide. This was
a breach of PFR. The decision was set aside and the issue sent back for redetermination.
17) Ellis Don: The doctrine of he/she who decides (Applies to Bias as well) gets even more
complex with institutional decision making. This doctrine does not prevent members of
a panel who conducted a hearing from informally discussing policy and legal matters that
arise with other members who did not hear the case. While these other members may be
consulted, they must not participate in finding facts or in the decision making process.
This is a task solely to be performed by delegates who heard the case.
18) Tremblays case: (Applies to Bias as well, see below) Communal decision making by
one of the large plenary tribunals; the president of the tribunal who was a judge was
essentially in a position to lean on the panel and get them to change a draft decision. This
goes against the doctrine of he/she who hears and is also a manifestation of bias.

NEMO JUDEX: UNBIASED DECISION MAKER (either s.7 or CL PFR must be
triggered before)
1) National Energy Board: Does personal bias require actual bias? NO! In this case, an
issue at part was membership of the panel hearing the application, to the Board. The
grounds for objection was reasonable apprehension of bias on part of the chair of the
Board, because prior to the appointment to the Board the chair was a director at a
certain crown corporation and the Corporation at some level had been involved in
feasibility studies into the movement of Arctic Gas into Southern Markets. The Chair
was an active participant in the Corps study group being both a member and an officer
of some of its important committees. So, the issue was whether the Chair could be
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disqualified in being a member of the panel that decided the application for the pipeline?
The TEST of a reasonable apprehension of bias, what would an informed person,
viewing the matter realistically and practically and having thought the matter
through conclude? There were two judgments in this case the dissenting opinion
was that there was no reasonable apprehension of Bias, and they gave this test. The
majority while agreeing with the test of bias concluded that there was in fact a
reasonable apprehension of bias in the case, and therefore the chair was disqualified.
2) Old St Boniface: PREJUDGMENT: The test for bias would vary with factual contexts,
just like audi alteram partem. Justice Sopinka said that a flexible approach would have to
be applied for the test for disqualifying bias, because on the facts in that case the decision
maker was a political actor, namely a city councillor, and the applicable test for such a
political actor could not be as demanding as the test applied in other circumstances. So
the party alleging prejudgement in this case had to establish that the Councillor had a
CLOSED MIND and that he would not have been persuaded and was otherwise
immovable in his opinion. Situations of this sort may arise in elections, where a political
actor may express his views during campaign, does not mean that he exhibits
prejudgment and his opinions would not change. Therefore, a tender approach must be
applied to such persons who are exercising their role in office. This case establishes that
there is a potential for, in the test for reasonable apprehension of bias, a spectrum at
least in so far as prejudgment is concerned, and this view is affirmed at least in part in
the following case.
3) Newfoundland Telephone: The above approach was applied here in different
circumstances. A distinction was drawn between the nature of the decision that what sort
of decision making is involved and who is making that decision. Focus on the concept of
adjudicative decision making on one hand and policy decision making on the other. In the
present case, comments were made during investigations and before the hearing as well.
The court said these were fine. However, comments that were made 3 days after the
hearing was ordered were held to give rise to prejudgment and thus a reasonable
apprehension of bias.
4) Energy Probe: CONFLICT OF INTEREST (Pecuniary or material bias): Can be
either direct or indirect. Complex to determine in cases of indirect interest, like this one.
The court concluded that a person who seems to have a fairly direct pecuniary interest, in
fact that interest was too far removed to give rise to conflict of interest in the
disqualifying bias. No direct pecuniary interest was found in this case.
5) EA Manning: Doctrine of CORPORATE TAINT: Failed here. The concept of
corporate taint has not been well received by the Courts. The Ontario Court of Appeal in
this case stated that, an entire broadly based Board is tainted by the participation of
prior members in a prior decision that the court decided that it was inappropriate. In
other words, can this Board be forever precluded from rendering a decision in relation to
matters that a prior iteration of this Board had already considered and in fact decided
adversely to the applicant in this case? (The same board members were hearing a
matter against the same applicant that they had decided against before). The Court
of Appeal said, NO! There is no such thing as corporate taint. You cant forever preclude
an important administrative tribunal (securities commission) from even rendering any
further decisions in relation to this particular applicant because in some prior case they
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had found against the applicant. There is no Corporate Taint that would preclude the
Commission from performing their statutory duties.
6) Tremblay v Quebec: (Also applies to he or she who hears decides; see above) This
case is comparable with EA MANNI NG. Here the members of the panel are not in any
way compelled or induced to change their views or their views were not altered in
anyway by the discussions that were undertook by the plenary body of the Board as a
whole, such consultations could be allowed. So, discussions of policy issues that the
Board faced as a whole were appropriate, but discussions of factual specifics of
individual cases would give rise to concerns that he/she who heard the case did not
decide the case, and a reasonable apprehension of bias. This case was different
because consultation was compulsory, it was much more formal, essence of forced
consultation between the members of the Board and this compulsory and formal system
of consultation entrenched on the independence of those panels that have heard cases. It
gave rise to as a consequence a reasonable apprehension of bias. This was because
minutes were taken, attendance was taken, there were votes trying to arrive at a
consensus, the president of the commission had the capacity to intervene quite directly in
order to build this consensus, all of which pointed to a system in which peer pressure
was exercised vis a vis those who actually heard the case. That was enough to give rise to
a reasonable apprehension of bias. This case isnt truly corporate taint of the sort of issue
at EA MANNI NG but it amounts to a corporate arrangement where an internal
institutional system which applied in individual cases gave rise to doubt about the
integrity of the decision making process.
7) Quebec v Regie: STRUCTURAL LACK OF INDEPENDENCE: Here the Court
quashed the decision of a liquor licensing body because the functions performed by the
officials in that licensing body OVERLAPPED too substantially. Staff lawyers who
made submissions to the Regie might then advise it regarding the same matters. Directors
meanwhile could initiate a review of a specific case, decide to hold a hearing and then
participate in the actual decision making process. Decision maker was performing
more than one function in a given case or where tribunal staff are employed in a way
that gives rise to a concern about bias, for example the staff participates in all stages of
the investigation through to advising on a decision or where a party has an institutional
role in the proceeding that might be viewed as biasing the outcome, e.g. where an
investigative body decides whether a complaint should proceed and that same
investigative body is also responsible for selecting a decision making panel. This case
along with the case of Matsqui gives an idea of how elements of Judicial Independence,
i.e. Security of Tenure, financial independence and administrative independence might
apply in an admin setting. The test for Judicial Independence must be applied in the light
of the functions being performed by the particular tribunal. The above three elements
would depend on the nature of the tribunal, the interest at stake and other indices of
independence such as oaths of office.
8) Ocean Port Hotel v British Columbia: If a tribunals parameters are defined by Statute
and the structure is objectionable but statutorily mandated, there is no attack that one may
launch on the structural lack of independence ground unless a s.7 charter or Bill right
has been triggered. In this case the Court held that the Liquor Appeal Board lacked
institutional independence because its members lacked security of tenure despite explicit
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legislative authority for at pleasure appointments. The SCC rejected this approach of
the Court and gave precedence to the Statute that created the Board.


STANDARD OF REVIEW (SUBSTANTIVE GROUNDS i.e. Errors of Law,
Fact, Discretion)
1) Crevier: The basis of Judicial Review is entrenched in the Constitution and even the most
robust privative clause cannot exclude it. This was also stated in Para 27 Dunsmuir.
This case deals with issues of jurisdiction and places limits on the legislature to create
s.96 courts.
2) DUNSMUI R (2008): (Also see for reference to Employment cases, above in Knight):
This case is current law. However, it does not cure all questions of Standard of Review.
This case introduced a single concept of Reasonableness (para 46 and 47). The Court at
Para 51 states where correctness would apply and where the standard of reasonableness
applies. This is the Simple Standard of Review Test. This case creates a set of
DEFAULTS. (1) Where there is a Privative Clause Courts are likely to show deference
to the process and Reasonableness would apply. (2) Where there are Questions of
mixed facts and law (intertwined) the courts are likely to show deference and apply the
standard of Reasonableness. (3) Where the tribunal is assessing a question of Fact courts
are likely to show deference and apply the standard of Reasonableness. (4) Where the
delegate is exercising a considerable amount of Discretion, or where the statute awards
discretion to the delegate, courts are likely to show deference and apply the standard of
Reasonableness. (5) Where the Tribunal is assessing a Question of Policy courts are
likely to show deference and apply the standard of Reasonableness. (6) Where the
area/matter in question lies within the expertise of the tribunal courts are likely to show
deference and apply the standard of Reasonableness. (7) Lastly, where the Tribunal is
interpreting its own home Statute (although these are questions of law but must fall
into the tribunals specialised area or closely related to functions e.g. definitions of certain
words) courts are likely to show deference and apply the standard of Reasonableness.
All of these defaults were later discussed and applied in the case of Smith vs. Alliance
Pipeline (2011). Furthermore, CORRECTNESS applies where: (1) A Question of Law
is involved that is of central importance to the legal system and outside the expertise of
the tribunal, (2) Determination of True Qs of Jurisdiction, (whether the statutory
authority allows the tribunal to proceed with the matter) and (3) Constitutional
Questions e,g, Charter rights or division of powers. The court further stated that, if an
issue fell in one of these defaults then no further analysis had no be undertaken.
However, where a solution was not obvious, one may still have to conduct the
Pragmative Approach Analysis. The factors that one must consider in conducing this
analysis are (1) the presence or absence of a privative clause, (2) the purpose of the
tribunal as determined by interpretation of enabling legislation, (3) The nature of the Q
at issue, and (4) The Expertise of the tribunal. The analysis must be contextual and based
on these four factors.

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So according to this case, one must first look at any prior jurisprudence, and if that
does not give an answer, one must look to the defaults, and if an answer is not found
even then, one must conduct the pragmatic and functional approach analysis and
then conclude whether correctness applies or reasonableness.

3) Khosa: Certain Statutes may still state the applicable standard of review as Patent
Reasonableness so in those cases would the court regard this now dead concept.
4) Dore (2012): SITUATIONS OF CONFLICT: Where there is a Ministerial Decision
(Deference, Reasonableness) and the question to be decided is a Constitutional
Question (Correctness, no deference)? This case suggests that a Court must accord
Deference to the Ministers decision. The reason being that the exercise of discretion by
an administrative decision maker operating with an eye to the governing statute and the
decision maker is trying to determine what the Constitutional requirements are that might
affect that exercise of discretion, we will review that decision under a Reasonableness
Standard. In such a case there is no need to conduct a separate s.1 analysis since
reasonableness has been automatically assessed.
5) Newfoundland Nurses: This case draws a distinction between reasons required in PFR
and under Substantive Review. Reasonable here means that the reasons do in fact or in
principle support the conclusion reached. That is even if the reasons given do not wholly
adequately support the decision, the Court must first seek to supplement the reasons
before it seeks to subvert them. If a tribunal has expertise in a case, the decision must be
construed as correct even if the reasons provided are a bit defective. So the Court states
that the inadequacy of the reasons on the face do not hold the decision unreasonable in
substantive review if the court can conceive of alternative reasons or explanations why
that decision was arrived at.

STANDING
1) Finlay v Canada: PUBLIC INTEREST STANDING: (Declaration and Injunction;
Remedies): Public interest standing is a matter of considerable judicial discretion. This
case follows the same tests as applied in the cases below.
2) Canadian Council of Churches: TEST for Public Interest Standing was laid down in
this case. When Public Interest Standing is sought, consideration must be given to (1)
there is a serious issue raised as to the invalidity of legislation in question? (2) Has it
been established if 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 effective way to
bring the action before the Court? This was a REGUFEE case and the challenged
legislation directly affected all refugee claimants. Each one of them had a standing to
initiate a constitutional challenge. It was also observed by the Court that refugee
claimants had in fact in the past challenged the legislation when their rights were
affected. Therefore, there were other reasonable methods of brining the matter before the
Court. The granting of public interest standing is not required when on the balance of
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and any distribution of these notes for monetary gain must be reported to the author at
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probabilities; it can be shown that the measure will be subject to attack by a private
litigant.
3) Borowski: Conditions that a plaintiff must satisfy in order to be granted standing.
4) Virend v Alberta: Virend and 3 gay organisations challenged a legislation for omission of
sexual orientation under s15 of the Charter. They did not confine their challenge to the
employment provisions of the Act but sought to raise the issue generally in relation to all
provisions in the Act spelling out the proscribed species of discrimination. The test laid
down in Canadian Council of Churches was applied here and the court said that there
was a serious issue of constitutional validity raised, Virend and the 3 organisations had a
genuine and a valid interest in the provisions they sought to challenge and in fact they
had a direct interest in the exclusion of sexual orientation. Finally, in relation to the last
aspect, the court stated that the only other way the issue could be tried before the court
with respect to the other sections would be to wait until someone is discriminated against
on those grounds and challenge the validity of the provision in each appropriate case.
This would not only be wasteful of judicial resources but also unfair in that it would
impose burdens of delay, cost, and personal vulnerability to discrimination for the
individuals involved in the eventual cases.
5) Harris v Canada: Action against MINISTER: Finlay (above) was applied to a
Ministers action of providing another tax payer with preferential treatment on the basis
of holding an ulterior motive.

REMEDIES
1) Homex Realty: Misconduct of the Applicant: Homexs illicit dealings with the
Atkinson village forced the court to deny the issuance of the order to Judicial Review.
2) Harelkin v University of Regina: Student applied for judicial review remedies of
mandamus and certiorari rather than pursuing the available Right of Appeal to the
committee of the university senate. The student argued that the alternative remedy was
not adequate in that he would have been denied a hearing at the senate committee. The
Court said that he should not assume that a hearing would be denied. The court held that
the alternative remedy in the circumstances was adequate and in the courts opinion more
convenient in terms of costs, expenditure and delay.
3) Matsqui I ndian Band: An appellant must exhaust all his alternative remedies before
commencing Judicial Review.
4) Howe v I nstitute of Chartered Accountants: PREMATURITY: The application in this
case was premature and it was held that the Courts should only interfere with
preliminary rulings made by an admin tribunal where the tribunal never had jurisdiction
or has irretrievably lost it. Further, a Court must not encourage applications for JR in
preliminary or interlocutory matters as long as the appellant has an adequate right of
appeal.
5) RJ R v McDonald: TEST for Injunctions: Interlocutory Injunctions; Until a certain
matter is pending. The test devised by the Courts was that there is a serious
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issue/question to be tried, which is not frivolous or vexatious, and no one is harmed. One
must weigh the harm done to both the parties on a balance of convenience.
6) Roncarelli v. Duplessis: SEEKING DAMAGES COLLATERALLY (J ehovah
Witness): this case illustrates extreme violations of administrative precepts. This was not
an administrative law case in reality and was actually a tort case. This was an action for
damages. It was a lawsuit brought for compensation based on exercise of statutory
powers by Mr. Duplessis. Tort of misfeasance of public authority by a delegate, that tort
remains alive and well.
7) Odhavji v Woodhouse: Tort of misfeasance was revived in this case. O was fatally shot
by police. Investigation was commenced by the SIU, and certain procedures that were to
be followed in that investigation were not in fact followed. So, Os estate commenced a
law suit, and the defendants (police) tried to throw the matter out of court, stating there
was no cause of action. The SCC stated that there was a tort of misfeasance in the public
office. There was a failure on the public officer to perform a statutory duty which
constituted a misfeasance in public office in extreme cases. So, this is an intentional tort
requiring the individual deliberately and unlawfully conduct their public functions
with awareness that their conduct is unlawful and likely to injure the plaintiff and if
the plaintiff can prove this then that creates the required nexus between the actions of the
delegate and the litigants bringing the law suit.
8) Canada (AG) v Telezone 2010: One issue in the Federal Courts was the fact that
whether you had to first proceed with Judicial Review before you sue for damages? The
Supreme Court in this case indicated that there is no need to proceed with Judicial
Review at federal Court before you bring a civil cause of action for behaviour that is
cognizable both as a violation of administrative law and also as a civil wrong.