ADMINISTRATIVE LAW FINAL SUMMARY LAW 210.

004
Steve Patterson
University of British Columbia
Prof. Christie Ford
Spring 2009
- Canadian administrative law is the body of law in Canada addressing the actions and operations
of governments and governmental agencies; that is, the law concerns the manner in which courts
can review the decisions of administrative decision-makers such as a board, tribunal, commission,
agency or minister
- The body of law is concerned primarily with issues of substantive review (the determination and
application of a standard of review) and with issues of procedural fairness (the enforcement of
participatory rights)
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PART ONE THE CONSTITUTIONAL RIGHT TO REVIEW ADMINISTRATIVE
DECISION-MAKERS
- s!" of the Constitution At! "#$%, which provides that the appointment of superior court #udges
is the responsibility of the federal government, means that a province cannot create a de fato
court and conveniently call it an administrative tribunal to usurp the power of the $overnor
$eneral to create courts
- &e &esidential 'enanies At ("9#" SCC) (the %&ntario created the 'esidential Tenancies
Commission to make orders evicting tenants, and this smells like what a s!" court would do%
case)
- (ickson )*s test to determine whether a province constitutionally created an admin tribunal
that doesn*t mirror s!" courts+
a) His!"i#$% i&'(i")
- (oes the impugned power broadly confer to a power e,clusively e,ercised by a
court in -."/0
b) I&si(i!&$% #!&*+
- 1s the impugned power (analogous2identical to a s!" court power) %#udicial% as
opposed to admin or legislative0
- %)udicial% 3 private dispute between parties, ad#udicated fairly through application
of recogni4ed body of rules
c) F(&#i!& $s $ ,-!%*
- 1s the #udicial power the tribunal is e,ercising a core power (ultra vires) or ancillary
(intra vires)0
- ie+ in 'om*o, a 5'6 making ad#udicative cease-and-desist orders e,ercised this
#udicial power ancillary to its broader policy-making goal to regulate labour relations
in the province
- 7ere, the Commission was struck down as unconstitutional under s!" because it*s #udicial
power to re8uire landlords and tenants to comply with obligations imposed under the 9ct was
its core function
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-
PART TWO THE RULE OF LAW IN THE ADMINISTRATIVE STATE
- :hile it may not constitute a direct and complete basis for answering an e,am 8uestion, the one
concept that ties together the seemingly disparate strands of administrative law is the foundational
concept of the rule of law
- 1n confining the discretion of administrative tribunals with regards to rules, policies, and
precedents, the governing 8uestion is how should administrative tribunal discretion fit within the
rule of law0
- The principle of legality is at the core of the rule of law, in that it states that law should always
authori4e the use of public power and constrain the risk of the arbitrary use of public power
- To understand the principle of legality, there are ; models by theorists on how the '&5
constrains arbitrary power+
a) R!%* !. -* /(0i#i$") i& $01i&is"$i2* %$,
i) (icey+ admin law is a means through which the courts could control government power
to protect individual rights
ii) <uller+ admin law ensures accountability in gov*t by facilitating participation in the
decision-making process
iii) 'a4+ admin law designs principles, rules, and standards in order to ensure that gov*t
performs tasks efficiently and fairly
b) I&si(i!&$% F"$1*,!"3
i) (icey+ common law system
ii) <uller+ law-making in general as a shared and cooperative institutional enterprise
iii) 'a4+ #udicial independence and access to the courts is necessary
- :hile the =CC has not (and perhaps never should) set out a comprehensive statement
containing a fully articulated conception of the rule of law, its #urisprudence suggests that the
'&5 embraces at least four principles+
a) L$, is S(4"*1* - Duplessis
- 'ule of law is supreme over private individuals as well as over government officials,
who are re8uired to e,ercise their authority non-arbitrarily and according to law
b) E+is*&#* !. L$,s Manitoba Language Rights
- 'ule of law re8uires the creation and maintenance of a positive order of laws
c) S$* 2. I&0i2i0($% Reference re Secession of Quebec
- 'ule of law re8uires the relationship between the state and the individual to be regulated
by law
d) 5(0i#i$% I&0*4*&0*&#* Imperial Tobacco
- 'ule of law is linked to the principle of #udicial independence
- :hile many courts began to invoke unwritten constitutional principles after the Seession
&eferene (federalism, democracy, rule of law, minority rights) whenever they wanted to trump
legislation, a trilogy of recent cases has narrowed the scope of the rule of law+
a) Charkaoui > =CC re#ected arguments that the '&5 nullified e,tension of detentions, as it
didn*t allow automatic review of the reasonableness of a security certificate or detention on
the basis of e,ecutive decision-making
b) Imperial Tobacco > '&5 doesn*t entail that legislation be prospective, gov*t can*t be
conferred with special privileges, and that a civil trial be fair when legislative power is used
arbitrarily but validly according to the constitution
c) Christie > '&5 does not guarantee a general constitutional right to counsel in proceedings
?
before the courts2tribunals in matters dealing with private rights and obligations
- Therefore, while the rule of law can have full legal force in certain circumstances (+anitoba
,anguage &ights), it cannot strike down legislation based on content (-mperial 'obao! Christie)
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PART THREE REMEDIES
I. REMEDIAL OPTIONS AT THE TRI6UNAL STAGE
- :hile administrative tribunals* remedial powers are varied, there are some general
characteristics+
a) N! i&-*"*& /("is0i#i!&
- +.innon+ since a tribunal does not have the general #urisdiction that a court does, the
power to impose a particular remedy must be provided for in the tribunal*s enabling
statute
- 1f a tribunal makes an order outside the scope of its enabling statute, the order is ultra
vires
b) N!2*% $&0 7"!$0 "*1*0i$% s"$*8i*s
- @ost tribunals* composition, structure, and mandates are different from courts*, and
their creative approach to remedies reflects those differences
- Therefore, tribunals can be highly interventionist, forward-looking, diachronic (tribunal
remain sei4ed over time) and polycentric (consider multiple parties beyond those directly
involved in the dispute)
- Slaight+ ribunals can also make greater use of %soft law%Ain addition to traditional legal
remedies, they can re8uire the issuing of public apologies, use public pressure, leverage
in industry standards, ectA
c) M!"* *..i#$#i!(s
- <aster, cheaper, and often more accessible than the courts (this is 8uestionable)
- 9n enabling statute may permit three options in terms of remedies+
a) S* !( *+4"*ss %iss !. "*1*0i*s $ "i7(&$% 1$) !"0*"
- ie+ declaratory orders, mitigate damage, licensing, managing resources, 8uasi-criminal
offences
b) Gi2*s 0is#"*i!&$") 4!,*" ! -* "i7(&$% ! .$s-i!& -* "*1*0i*s -*) s** .i ! !"0*"
- 9llows for creative remedies
c) U&#%*$" !& "*1*0i$% 4!,*"
- (oesn*t include C5 power for payment of money or e8uitable power to issue
in#unctions, and can*t %read in% these
- +.innon v. /ntario (200" /nt. 0&C) (the %remedies that you ordered to correct the racist
work environment as a corrections officer aren*t effective because the @inistry isn*t carrying them
out in good faith% case)
- Tribunals can*t re-consider the effectiveness of remedies they previously ordered, and can*t
continue to order new remedies until they were effective in preventing discrimination
- 7owever, tribunals retain #urisdiction to resolve bad faith allegations of non-compliance
with the spirit of their orders
;
- 7ere, @inistry didn*t carry out orders in good faith and didn*t comply with the spirit of the
law, so they ordered an e,ternal third party monitor to solve the systemic discrimination
problems in the prison
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II. ENFORCING TRI6UNAL ORDERS AGAINST PARTIES
- 9+ what happens when a party decides to completely ignore a tribunal order0 :hat
enforcement powers are available0
- There can be three options+
a) T"i7(&$% s**3s ! *&.!"#* is !"0*"Atwo aspects+
i) T"i7(&$% P!,*"s
- 'areAany enforcement powers must be granted to the tribunal in the enabling
statute
- A'A has some enforcement provisions (s-., s;-(-)(e), sB/)
ii) C!&2*"si!& i&! #!(" !"0*"
- @ore commonly, the tribunal must make an application in court to enforce orders,
and once successful, the order can be enforced in the same manner as a court
#udgment (authority to do this must come from the enabling statute)
b) P$") s**3s ! *&.!"#* $ "i7(&$%:s !"0*"
- Carty to an administrative action brings action in court against another party to enforce
the order
c) C"i1i&$% 4"!s*#(i!&
- @any statutes provide for 8uasi-criminal prosecution of persons who disobey tribunal
orders
- ie+ 6C Seurities At offence can be a fine up to D; million or imprisonment up to ;
years
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III. CHALLENGING ADMINISTRATIVE ACTION
- There are two main ways by which a party to a tribunal action can access the courts to challenge
the action+
a) I&*"&$%;*+*"&$% $44*$% 1*#-$&is1s (common)
b) 5(0i#i$% "*2i*, (rare)
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1< INTERNAL TRI6UNAL MECHANISMS
- =ome enabling statutes specifically provide tribunals with power to reconsider and rehear their
decisions, and they can be common if a tribunal has ongoing regulatory responsibility (ie+ 5abour
6oard)
- 7owever, a tribunal cannot reconsider or alter a final decision made within its #urisdiction, as
once it has made a final decision, the tribunal is funtus offiio (%having performed his office%)
- =ome enabling statutes provide for appeals internal to an administrative agency if it*s part of
agency (ie+ 1mmigration 6oard appeals go to the 1mmigration 9ppeal (ivision)
B
- 7owever, all of these internal review proceedings do not preclude subse8uent appeals to the
courts, and if the statute doesn*t provide for court appeal, the parties only entrance is by way of
#udicial review
- N!*+ can also get e,ternal non-court mechanisms of appeal through ombudspersons and other
public officials
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2< USING THE COURTS= STATUTORY APPEALS
- Courts e,pect applicants to work through the statutory appeal process first before seeking
#udicial review, so always consult the enabling statute to see if a statutory appeal route is
provided and e,haust it first
- There are B main 8uestions a party must ask to determine whether a court appeal is available+
a) D!*s -* T"i7(&$%:s *&$7%i&8 s$(* 4"!2i0* $ "i8- !. $44*$%>
- Courts have no inherent appellate #urisdiction over administrative tribunals, so it must
be in statute
- @ust be an appeal of a final decision on the merits, not interlocutory rulings
- @ain reason for no appeal is to maintain integrity of system and limit court intervention
b) W-$ is -* s#!4* !. $2$i%$7%* $44*$%>
- 5ikewise, the scope of an available appeal is determined entirely by the enabling statute
- =ome permit complete de novo review of a tribunal*s decision, while others more
limited
- 'ight to courts is more likely to be granted when the tribunal*s sub#ect matter and
e,pertise mirror general courts and can affect individual*s common law rights (ie+ human
rights tribunals appealable v labour relations go to tripartite boards)
c) Is $& $44*$% $2$i%$7%* $s !. "i8-? !" is %*$2* "*'(i"*0> I. %*$2* is "*'(i"*0? ,-! 1$)
8"$& i>
- 9n appeal as of right means filing re8uires hearing; leave re8uires that the application
has merit
- 9ppeals may be as of right or re8uire leave, either of original decision-maker or
appellate body
- ie+ <orest 9ppeals Commission goes to 6C=C v =ecurities Commission to 6CC9 w2
leave
d) Is $ s$) !. 4"!#**0i&8s $(!1$i#? !" 1(s !&* $44%) .!" i>
- This suspends the activation of the lower tribunal #udgment while the appeal is ongoing
- 6C A'A, s?E+ %commencement of an appeal does not operate as a stay or suspend the
operation of the decision being appealed unless the tribunal orders otherwise%
- Fnless a statute specially e,cludes it (such as 6C*s A'A), the superior court that is the
tribunal*s designated appellate court has the inherent authority to grant a stay
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@< USING THE COURTS= 5UDICIAL REVIEW
- Fnlike appeals, which are statutorily created, #udicial review is the review of e,ecutive action
beyond what the e,ecutive itself provided for, and is about the inherent #urisdiction of courts to
oversee and check administrative (that is, e,ecutive) action in the interest of the rule of law
E
- 1n addition to the discretionary nature of #udicial review (1omtar), differences in history and
function of #udicial review also mean that whether it will be available as a remedy depends on E
threshold 8uestions+
a) Is -* "i7(&$% $ 4(7%i# 7!0)>
- This is the first threshold 8uestionAonly public bodies can be sub#ect to #udicial review
- +1onald+ if a decision-maker fulfills a public function, or if the decision-maker has
public law conse8uences, a duty of fairness applies and the decision is sub#ect to #udicial
review
b) D!*s -* 4$") -$2* s$&0i&8 ! #-$%%*&8* -* "i7(&$% 0*#isi!&>
- =traightforward for actual parties to an administrative action, but not third parties
- ie+ %public interest% standing (=ee Sierra Club)
c) W-i#- #!(" ! $44%) ! .!" /(0i#i$% "*2i*,>
- 6oth provincial superior courts and <ederal Courts have #udicial review #urisdiction
- $eneral rule, sub#ect to any e,ceptions in the enabling statute, is that going to either
6C=C26CC9 or <ederal Court of Canada determined whether dispute is provincial or
federal
d) Is -* $44%i#$i!& i1*%)>
- 6C A'A, sE/(-)+ time limit is "G days in 6CAnot default ? year limitation period for
most civil actions
- 7owever, courts are statutorily empowered to e,tend time limit if there is a reasonable
e,planation
e) H$s -* $44%i#$& *+-$(s*0 $%% !-*" 1*$&s !. "*#!("s*>
- (epending on tribunal*s enabling statute, this may include all previously mentioned
remedies
- ie+ reconsideration by same tribunal, appeals to appellate tribunals, intra-agency
mechanisms such as grievance arbitration, and appeals to court
- 0arel*in+ applicants must e,haust all alternative avenues of appeal before going to )'
as a last resort
- 1omtar v. 2uebe ("993 SCC) (the %1 got a favourable ruling from the 5abour Court on
compensation for my workplace accident which conflicts with the decision of the first internal
appellate body that the courts refuse to overturn b2c not unreasonable% case)
- :hen ? parallel administrative tribunals differ in their statutory interpretation of a
provision, this %inconsistency% cannot provide an independent basis for #udicial review and a
remedy, as courts must respect admin decision-making autonomy
- 7ere, there was no conflict; even if there was, it would not constitute an independent basis
because this would mean that %the principle of the rule of law% would be 8ualified
- Therefore, admin tribunals have authority to err within their area of e,pertise, and a lack of
unanimity is the price to pay for the decision-making freedom and independence given to
members of these tribunals by the legislature
- 0arel*in v. University of &egina ("9%9 SCC) (the %1 didn*t appeal to the =enate as the statute
permitted, but went straight to )' because of concerns over the fairness of the proceedings, and
court should e,ercise their discretion to hear me% case)
- 1t is not enough for an applicant to show that a right has been violated to get a #udicial
review remedy; must e,haust all alternative avenues of appeal and use )' as a last resort
"
- Hven though he had no opportunity to be heard at the -
st
level and therefore bypassed the ?
nd
level, he was not entitled to assume that the superior body would decide the matter in the
same way as the -
st
body
- Can*t burden courts until internal appeals are e,hausted, so 7 wasted his time and money
going to )' too early
- Canadian Paifi v. +ats4ui -ndian Band ("995 SCC) (the %even though 1 owe ta,es to the
reserve, 1 don*t want to go to the ?
nd
level of internal review because the board membership is
dominated by the band and thus isn*t independent% case)
- 9ffirms 0arel*in that an applicant must e,haust all internal appeal mechanisms before
going to #udicial review
- 9lso, if an appeal tribunal gives an ade8uate remedy, an applicant can*t then go to court
because it*s a better forum; tribunals e,ist to give applicants an ade8uate remedy, not
necessarily the ideal remedy
- +1onald v. Anishinabe* Polie Servies (200$ /nt. SC) (the %aboriginal cop faced complaints
of se,ual misconduct during training course, was kicked off grounds, but Colice Chief that kicked
off was a creature of contract, not statute% case)
- )udicial review is only available if an agency is a public body, and it is the sub#ect matter,
not the source that determines a remedy if a particular action affects individual rights or
legitimate e,pectations
- 7ere, 9C= Chief*s actions were %public enough% as it was fulfilling a gov*t function and
therefore was sub#ect to )'
- 9lso, 9CC Chief owed a duty of fairness as a public decision-maker as since he fulfilled a
public function, his decisions had public law conse8uences, and manner of dismissal here
didn*t meet Code of Conduct re8uirements and was procedurally unfair
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4< REMEDIES ON 5UDICIAL REVIEW
- 'emedies available on #udicial review have their roots in ancient prerogative writs, such as+
a) C*"i!"$"i AB#$(s* ! 7* #*"i.i*0B<
- =pecial proceeding by which a superior court re8uires some inferior tribunal to provide
it with the record of its proceedings for review to see if it e,ceeded its #urisdiction
- 9 successful certiorari application results in %8uashing% the tribunal*s order or decision
b) P"!-i7ii!&
- 1ssued by an appellate court to prevent a lower court from e,ceeding its #urisdiction or
to prevent a non-#udicial court from e,ercising a power (negative remedy)
- Fnlike certiorari, which provides e6 post fato relief, this provides pre-emptive relief
like a C5 in#unction to prevent an unlawful assumption of #urisdiction
c) M$&0$1(s AB,* #!11$&0B<
- :rit issued by a superior court to compel a lower court or government agency to
perform a duty it is mandated to perform
/
- 1n practice, often combined with an application for certiorari
- ie+ certiorari used to 8uash decision (ie+ for lack of procedural fairness) while
mandamus used to force the tribunal to reconsider the matter in a procedurally fair
manner
d) D*#%$"$i!&
- )udgment of the court that determines the legal positions of the parties
- Cublic law ones used to declare gov*t action ultra vires; private law ones declare
statutory rights
- (eclarations are not enforceable, and can*t re8uire anyone to take2refrain from action
e) H$7*$s C!"4(s AB4"!0(#* -* 7!0)B<
- :rit to bring a person before a courtAused to ensure imprisonment2detention is not
illegal
- 5ike certiorari, it is alive and well in the F=9 (ie+ death penalty reviews to federal
courts)
- &ver time, prerogative writs came to be archaic because small technicalities or wrong choice of
writ would bar potentially meritorious applicationsAas a result, many provinces and feds made
reforms (ie+ Federal Courts At and 6C A'A)
- 7owever, the underlying writs are still important to know what remedies you get with
#udicial review
- 1n 6C, we have the 7udiial &evie8 Proedure At (7&PA), which allows the court to look more
at policy in determining whether an applicant should get relief, rather than whether the applicant
fits within the strict categories of old prerogative writs+
2A2< A44%i#$i!& .!" /(0i#i$% "*2i*,
- %&n an application for #udicial review, the court may grant any relief that the applicant
would be entitled to in any one or more of the proceedings for+
(a) relief in the nature of mandamus, prohibition or certiorari;
- Therefore, all prerogative writs now #udicial review brought by petition
(b) a declaration or in#unction, or both, in relation to the e,ercise, refusal to e,ercise,
or proposed or purported e,ercise, of a statutory power%
- %=tatutory power% in s-+ right to make regulation, rule, bylaw, or order
- 6asically, two kinds of declarations+ public (action with a public body) and
private (action with a private individual)AAt concerned with public
declarations
4 E+isi&8 4"!2isi!& %i1ii&8 /(0i#i$% "*2i*, &! $..*#*0
- %=ub#ect to section ;, nothing in this 9ct permits a person to bring a proceeding referred
to in section ? if the person is otherwise limited or prohibited by law from bringing the
proceeding%
- Therefore, reform doesn*t change powers of the courtsA#ust simplifies them
C P!,*" ! "*.(s* "*%i*.
- %1f, in a proceeding referred to in section ?, the court had, before <ebruary -, -!//, a
discretion to refuse to grant relief on any ground, the court has the same discretion to
refuse to grant relief on the same ground%
- 1n other words, #udicial review is discretionary
- =ince #udicial review courts have discretion to refuse a remedy even where one is clearly
warranted by facts, there can be several bases for refusing to grant a remedy include+
a) A0*'($* $%*"&$i2* "*1*0i*s $"* $2$i%$7%*
- Therefore, parties should e,haust all prescribed avenues of appeal before proceeding to
.
%last resort% of #udicial reviewAmost important basis
b) P"*1$("*
- )udicial review application brought before tribunal proceedings have been concluded
- Colicy+ admin should be cost-effective, may later be moot, and court needs full situation
to #udge
e) D*%$) $&0 $#'(i*s#*&#*
- Hven if statutory time limits for filing a #udicial review application have been met, they
should not delay or choose not to attend a hearing
d) Iss(*s $"* 1!!
- 9 remedy in #udicial review will not be granted where the issues are moot
- ie+ dispute is over2not yet arisen, order is e,pired, litigant no longer wants tribunal*s
remedy
e) P$") 0!*s&: #!1* ,i- #%*$& -$&0s
- This includes seeking a remedy to facilitate illegal conduct, making misrepresentations,
or using it to obtain an unfair advantageA#udicial review remedies are e8uitable
remedies
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PART FOUR PROCEDURAL REVIEW
- Crocedural fairness concerns the entitlement of rights during the deliberation of a case before an
administrative decision-maker
- These rights flow from two principles of natural #ustice+
a) T-* "i8- ! 7* -*$"0 (audi alteram partem), and
b) T-* "i8- ! 7* /(08*0 i14$"i$%%) (9emo :ude6 in sua ausa)
- These rights can be conveyed by the Charter, %umbrella% legislation (ie+ the 6C Administrative
'ribunal;s At), the administrative decision-maker*s enabling statute, and the common law
I. SUMMARY OF ANALYSIS
- 7ere, the court is not interested in the actual decision that the tribunal came to in the end (the
substance) but in the procedures followed by the tribunal in coming to the decision
- There are several parts to this in8uiry+
a) T-* BT-"*s-!%0 9(*si!&B
- 1s this the kind of decision that should attract some kind of procedural right0
- Three actual thresholds here+
i) Is -*"* $& !72i!(s &**0 .!" &$("$% /(si#*? 7$s*0 !& -* s$(* $&0 .$#s>
- $enerally, if a delegated decision affects an individual*s rights or interests, there
will be s!1* 1i&i1(1 *&i%*1*& ! 4"!#*0("$% .$i"&*ss
ii) I. -* 4*"s!& is &! *&i%*0 ! &$("$% /(si#*? $"* -*) *&i%*0 ! 4"!#*0("$%
.$i"&*ss>
- E+#*4i!&s to general rule include where the decision is a legislative2policy
decision or if the decision is preli minary2investigative
- =CC in Ba*er identified E factors relevant for determining level of procedural
fairness+
!
i) The &$("* !. -* 0*#isi!& and the process followed in making it
(final2interim0)
ii) The nature of the s$(!") s#-*1* (legislative v administrative activity)
iii) I14!"$&#* !. -* 0*#isi!& to the individual (rights, privileges, or
interests0)
iv) The %*8ii1$* *+4*#$i!&s of the parties, and
v) The 4"!#*0("* #-!s*& by the tribunal
iii) Is -* 4*"s!& *&i%*0 ! .(&0$1*&$% /(si#*>
- (oes the Bill of &ights or the Charter apply0
- Traditionally, threshold test was done at common law, but now includes s/
right not to be deprived of life, liberty, or security of the person e,cept in
accordance with fundamental #ustice
b) T-* C!&*& !. P"!#*0("$% F$i"&*ss
- 1f a court determines that the threshold for some form of procedural fairness has been
met, the court must address what those procedures will beAthe kinds of procedural rights
will be based on whether the applicant receives+
i) N$("$% 5(si#*
ii) P"!#*0("$% F$i"&*ss
iii) F(&0$1*&$% 5(si#* (Charter and Bill of &ights apply)
- 7aving determined the general level, the court will decide what specific procedures,
including+
- N!i#* that the decision is going to be made
- Dis#%!s("* of the information on which the tribunal will base its decision
- =ome 1*$&i&8.(% !44!"(&i) ! 4$"i#i4$* or make views known
- <ull -*$"i&8 similar to that which occurs in a court
- &pportunity to give *2i0*&#* and cross e,amine (discovery and disclosure)
- 'ight to #!(&s*%
- &ral2written "*$s!&s for its decision
- &ften legislation will e,pressly lay out the kinds of procedures applicants are entitled to
- 1n 6C, the Administrative 'ribunals At focuses on empowering a tribunal to enact its
own rules
- :here a statute (either umbrella or specific to the tribunal) specifies a certain kind of
procedural right or specifically denies a procedural right that would otherwise have been
available at C5, the statute prevails over the common law
c) 6i$s
- 1f a decision-maker acts in a biased matter, what happens0
- :hat is biasAis it attitudinal bias, actual bias, the appearance of bias0
d) I&0*4*&0*&#*
- 'elated to bias, but more about the systemic structure of a board or tribunal as opposed
to individual decision-making
- (o members of tribunal have financial security0 (o they have security of tenure0 9re
they so dependent to the government that they can*t be perceived as making independent
decisions0
e) I&si(i!&$% D*#isi!&-M$3i&8
- 'efers to the degree to which boards and tribunals can consult with others to whom the
person affected will not have had the opportunity to present his or her case
- ie+ if high caseload, can only one member hear the application but full board makes the
decision0
- Ieep in mind these E points regarding procedure when conducting an analysis+
a) P"!#*0("$% .$i"&*ss 0!*s &! *'($% s(7s$&#*
-G
- $etting procedural fairness does not guarantee a specific result
- Courts more willing to intervene on procedural issues because they are more familiar
with rules
- Therefore, an applicant may2may not be able to have access to discovery of documents,
written submissions, ectA
b) P"!#*0("* 1$*"s
- $ood procedure is e8uivalent to fairness
- 5evel of procedural fairness in the #ustice system represents liberty in greater society
c) T,!-S*4 A&$%)sis
i) T-"*s-!%0 > 1s the applicant entitled to any procedural fairness at all in the decision0
- $oes from &$("$% /(si#* 4"!#*0("$% .$i"&*ss .(&0$1*&$% /(si#*
- 9lthough the duty applies to a wide range of decisions, there are still some that
don*t apply
ii) C!&*& > :hat sort of procedural rights does the applicant get0
- Courts must first determine the degree of fairness that is re8uired before
particulari4ing the content of the duty and deciding whether or not the duty was met
- ie+ ade8uate notice, oral2written submissions, discovery of documents available,
ect
d) V$"i!(s S!("#*s !. P"!#*0("$% Ri8-s
- Crocedural rights are not usually set out in the enabling statute
- Therefore, other sources include+
i) C!11!& L$,
- Crior decisions set out what individuals get from different agencies in terms of
fairness
ii) S$(*s $&0 R*8(%$i!&s
- 6C A'A is an overarching statute that harmoni4es procedural fairness rules
generally in 6C
- Bill of &ights and Charter allow rights to be restricted e,cept those of
fundamental #ustice
- 9gency guidelines and rules (different than the enabling statute)
e) Baker $&0 -* R!$01$4
- =ee later, but must consider nature of the interests at stake, how central the rights are,
whether the decision is final or preliminary, the nature of the statutory scheme, ectA
______________________________________________________________________________
______________________________
II. THE THRESHOLD FOR NATURAL 5USTICE;THE DUTY OF FAIRNESS
1< THE THRESHOLD FOR NATURAL 5USTICE= WHEN DOES THE DUTY OF
FAIRNESS APPLY>
- 9iholson+ the common law imposes a duty of fairness (ie+ natural #ustice) in certain
administrative proceedings
- Cardinal+ however, the duty of fairness can only be invoked where the circumstances satisfy a
threshold based on three factors+
a) T-* &$("* !. -* 0*#isi!& 1(s 7* s(..i#i*&%) $01i&is"$i2* !" '($si-/(0i#i$%
- -nuit 'apirisat+ decisions that are of a %legislative or general nature% which are based on
broad policy issues rather points of law are not likely to warrant a duty of fairness
--
- 0ome6+ municipal by-laws will not fall under the %legislative% e,emption when a
general law targets specific individuals
b) T-* "*%$i!&s-i4 7*,**& -* $01i&is"$i2* 0*#isi!&-1$3*" $&0 -* i&0i2i0($%
#%$i1$&
- Consider the structure and nature of the relationship and asks whether there are
procedural safeguards in the relationship
- 1f individuals e,pect to reeeive consistent treatment from the government with regard to
their rights, interests, or privileges, the doctrine of legitimate e,pectations may give the
claimant a right to procedural fairness
- Canada Assistane Plan+ %doctrine of legitimate e,pectations% protection doesn*t apply
to 8uestions of pure policy
- +ount Sinai+ relief based on legitimate e,pectations is limited to procedural relief, not
substantive relief
c) T-* &$("* !. -* i&*"*s $&0 -* i14$# !. -* 0*#isi!& 1(s 7* si8&i.i#$&
- This mostly concerns what is at stake amongst the parties
- 1airy Produers+ there is no duty to act fairly in the early investigative stages of
proceedings, as the duty only applies to decisions or final dispositions of a matter
- &e Abel+ (uty may apply to interim decisions where the impact on the claimant is so
significant that the decision amounts to a final disposition of the matter
- -rvine+ $reater procedural rights at later stages can offset hardship suffered from lesser
procedural fairness rights at earlier stages (ie+ info-gathering for law enforcement)
- 9fter 9iholson and Cardinal, where the circumstances satisfy the threshold test to invoke a
duty of fairness, a claimant will be entitled to certain participatory rights including pre-hearing
rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights,
such as rights related to the form of hearing, counsel, e,aminations, and reasons for #udgment
- 7owever, as noted above, the conte,t determines these limits, such as the impact of the
decision, the type of institution, and whether it is a preliminary or final decision
______________________________________________________________________________
______________________________
2< EMERGENCE OF THE DUTY OF FAIRNESS
- &riginally, &$("$% /(si#* referred to the rules and type of #ustice which one would e,pect to
receive in a #udicial28uasi-#udicial setting, so administrative or pure policy decisions attracted no
procedural rights whatsoever
- 9fter 9iholson and Cardinal, while pure policy decisions still attract no procedural protection,
there is a general duty of fairness in the administrative field, even if it*s less than the principles of
natural #usticeAthis depends on the factors which determine the content of the duty of procedural
fairness as listed in Ba*er
- 9iholson v. Polie Commissioners ("9%9 SCC) (the %1 should get basic procedural fairness
rights (ie+ reasons, notice, opportunity to be heard) even though the statute said 1 was a %constable
at pleasure% and could be fired without notice under -. months in% case)
- =ince the classification of statutory functions as #udicial, 8uasi-#udicial, and administrative
was confusing and no longer useful, 5askin C) affords procedural fairness as a %halfway
house% between full natural #ustice rights and nothing
- 7ere, for the dismissal by the board to be procedurally fair, the officer should have been
-?
told why he was dismissed and been given an opportunity to respond; however, discretion as
to whether it should be an oral or written hearing was left to the board
- Jow, as a general common law principle, a duty of procedural fairness lies on every public
authority making an administrative decision which is not of a legislative2pure policy nature
and which affects the rights, privileges, and interests of an individual
- 7owever, this duty is fle,ible and depends on the circumstances of the applicant
- .night v. -ndian 0ead Shool 1ivision ("990 SCC) (the %even though 1 was a public office
holder at pleasure, 1 claim that my procedural fairness rights were violated because 1 had no oral
hearing% case)+
- :hile 1unsmuir (200# SCC) undermines .night, the case still makes two contributions to
administrative law+
a) N$("* !. -* 0*#isi!& is &!, i14!"$& A*+4$&0*0 !& i& Baker<
- Jo longer necessary to characteri4e the nature of the tribunal; instead, the threshold
8uestion of the e,istence of the general duty to act fairly is dependent on+
i) N$("* !. -* 0*#isi!&
- There is a distinction between+
a) L*8is%$i2* A%*ss PF< 2. $01i&is"$i2* 0*#isi!&s A1!"* PF<
- 7ere, decision was %administrative% and %specific% since it applied
to one person*s suitability for a #ob, so suggests some procedural
fairness
b) P"*%i1i&$") A%*ss PF< 2. .i&$% 0*#isi!&s A1!"* PF<
- 7ere, decision was %final% because he was dismissed from his #ob,
so more fairness owed
ii) R*%$i!&s-i4 7*,**& $01i&is"$i2* 7!0) $&0 -* i&0i2i0($%
- 7ere, Court found a duty to act fairly in termination of an officeholder at
pleasure because of the dignity of the Crown (statutory office holder), which
owes higher duties than to mere employees
iii) Ri8- $ s$3* is si8&i.i#$& $&0 -$s $& i14!"$& i14$# !& -*
i&0i2i0($%
- 7ere, interest was significant because an individual losing office impacts
their life significantly
- Therefore, weighing up these factors, Inight was entitled to some procedural
fairness at common law
b) W-i%* 8*&*"$% 0() !. .$i"&*ss !,*0? s$(*;#!&"$# *%i1i&$*s !" %i1is "i8-s !
PF A!2*""(%*0 7) Dunsmuir<
- :hile .night holds the contract isn*t determinative of procedural rights, 1unsmuir
overrules this and holds that e,plicit language in a statute or I of employment can
trump common law duties of fairness for public employees
- Therefore, since the law no longer draws a distinction between public office holders
and other employees, the duty of fairness will no longer have any application to
employee dismissals
- Cardinal v. .ent -nstitution ("9#5 SCC)+ (the %even though you had statutory power to
segregate prisoners, you couldn*t deny our release to genpop after the 6oard recommended our
release after the hostage-taking, despite what you think is *necessary*% case)+
- Confirms that every public authority has a duty of procedural fairness when making an
-;
administrative decision which is (-) not of a legislative nature, 9J( (?) which
affects the rights, privileges, or interests of an individual
- 7ere, due to the serious impact of the decision on the applicants, there was a minimal
common law duty of fairness re8uiring (-) the right to be heard, 9J( (?) the right to have
notice of the case against them (sub#ect to limits depending on conte,t)
- 7ere, the conte,tual limits allowed the prison director to rely on information he received
from the warden and other personnel and not make an independent in8uiry into the hostage
taking; however, he was re8uired to hear what prisoners had to say
______________________________________________________________________________
______________________________
@< LIMITATIONS ON THE SCOPE OF THE DUTY OF FAIRNESS
A< LEGISLATIVE 2. ADMINISTRATIVE DECISIONS
- Canada Assistane Plan+ %The rules governing procedural fairness do not apply to a body
e,ercising purely legislative functions%
- :hile a %purely legislative function% has never truly been defined by the =CC, primarily
legislation passed by Carliament or a provincial legislature is e,empt from the duty of fairness
due to the separation of powers between the courts and the legislature
- Categorical e,emption of legislative functions becomes problematic when e,tended to include
secondary legislation and policy+
a) C$7i&* $&0 Mi&is*"i$% 0*#isi!&s
- :hile cabinet and ministerial decisions are not sub#ect to the legislative e,emption per
se, Cabinet @inisters often wear %two hats% (ie+ e,ecutive and legislative), so they can be
categori4ed as legislative in certain circumstances
- -nuit 'apirsat+ decision made by C'TC allowing a rate increase without allowing
petitioning group to be heard was covered by the legislative e,emption because the rate
increase was legislative; the legislation authori4ed Cabinet to overturn a decision of the
C'TC on its own motion
b) S(7!"0i&$* %*8is%$i!& Ai*= 1(&i#i4$% 7)-%$,s<
- :hile traditionally courts would %supply the omission of the legislature% whenever any
statute that interfered with property or other rights without giving prior notice, it*s no
longer automatic to give notice when a statute interferes with property rights; instead, a
court must consider what the municipality or subordinate legislation was trying to do
- 0ome6+ =CC concluded a municipal by-law attracted a right to be heard because it
singled out individuals
c) P("* 4!%i#) 0*#isi!&s
- 0ome6+ these are covered by the legislative e,emption because they are %general% (not
%specific%) in nature
- Canada v. -nuit 'apirisat ("9#0 SCC) (the %we deserved a right to be heard due to natural
#ustice on the rate increases after we made a petition under the s"B(-) of the 9'A, and your
failure to do so violated your duty of fairness% case)+
- Hstey ) holds that while the $overnor-in-Council is not automatically sheltered from
review, here the discretion of the $overnor is complete provided he observes the
-B
#urisdictional boundaries of s"B(-)
- Therefore, Cabinet*s decision to deny a hearing to 1T was not an obligation, but a broad
discretion at the high end of the policy-making spectrum that represents a polycentric
decision re8uiring a balancing of multiple competing interests
- This was an e,ample of Cabinet acting as legislature2Carliament and not wearing it*s
%e,ecutive% hat; with different facts it could go another way, as here Hstey ) simply made a
conclusion and worked backwards to draw the distinction
- 0ome6 &ealty v. <yoming ("9#0 SCC) (the %we bought these lots with your consent, but once
negotiations regarding installation of municipal services broke down, you targeted us with a
bylaw without notice deeming our lots not part of the registered plan% case)
- :hile interference with property rights no longer grants automatic procedural fairness
rights, here, the village was trying to prevent citi4ens from paying for municipal services
while using public power to win its argument against 7ome,
- Therefore, in cases like this where there was a %double duty% (ie+ public interest v trump
card in private dispute), special considerations arise
- 5egislatures have the power to pass bylaws in the name of the public interest, but they must
do so in accordance with procedural fairness if people are specifically affected; here, that
happened, so 7ome, deserved a right to be heard
______________________________________________________________________________
______________________________
6< PRELIMINARY 2. FINAL DECISIONS
- The duty of fairness applies to decisions, meaning final dispositions of a matter, and will rarely
apply to investigations or advisory processes that do not have any conse8uences
- .night+ preliminary decisions will receive less procedural fairness than final decisions
- &e Abel+ however, investigations and advisory processes may have a considerable impact on
affected persons, especially when they are conducted in public, so if a preliminary decision has a
great impact on the final decision, then procedural fairness applies
- &e Abel ("9%9 /nt. 1iv. Ct) (the %even though you claim to be an *advisory board*, 1 deserve
procedural fairness because your refusal to disclose my psychological reports before the 6oard
denies my right to know the case 1 have to meet% case)
- To determine the content of procedural fairness for interim decisions, look at+
a) D*8"** !. 4"!+i1i) 7*,**& 4"*%i1i&$") $&0 .i&$% 0*#isi!&
- 7ere, the preliminary decision was 9bel*s only chance at getting a positive final
decision by the 5ieutenant $-C
b) D*8"** !. -$"1 .$#*0 7) -* $44%i#$&
- 7ere, a denial of procedural fairness resulted in imprisonment and a deprivation of
liberty, so big time harm
- 1airy Produers; Co=op v. Sas*athe8an ("99> Sas*. 2B) (the %even though you*re at the initial
-E
investigative stage of a se,ual harassment complaint, we should full disclosure of the complaint
during the investigation because settlement negotiations failed% case)
- :hile procedural fairness re8uires that the applicant (-) receive notice of the substance of
the case against him, and (?) be given the opportunity to respond, these re8uirements only
apply to determinative stages where such a duty e,ists
- 7ere, the original investigation and the settlement negotiations had no duty of procedural
fairness imposed on both because there was little degree of pro,imity between their processes
and the 7uman 'ight Commission*s final decision
- -rvine v. Canada ("9#% SCC) (the %1 didn*t get procedural fairness in my anti-trust matter
because the investigator who wrote a report to the 6oard as to whether to have a full hearing and
prosecution didn*t give me any notice or an opportunity to be heard% case)
- 7ere, there were two preliminary stages, both of which didn*t attract any degree of
procedural fairness+
a) S*4 1 I&.!"1$i!& G$-*"i&8
- Jot final and not public, as the investigator only gathers facts for the @inister
b) S*4 2 I&.!"1$i!& P"!#*ssi&8
- Commission processes info gleaned by (irector via 7earing &fficer, but while they
can make recommendations to @inister on whether to prosecute, neither the (irector
or Commission can actually prosecute for unfair trade practices
- Therefore, greater procedural rights at the full-blown in8uiry can offset any hardship
suffered by lesser procedural rights at early stages of the process, as courts don*t want to
unduly burden law enforcement with #udicial processes
______________________________________________________________________________
______________________________
C< THE RELATIONSHIP TO LEGITIMATE EDPECTATIONS
- 9ccording to the doctrine of legitimate e,pectations, if a plaintiff has legitimate e,pectations
that a certain procedure will be followed, that procedure may be re8uired by the duty of fairness
- :hile this doctrine gives a right to procedural fairness, it does not give rise to any substantive
result (ie+ only a threshold issue)
- &eferene &e Canada Assistane Plan ("99" SCC) (the %you can*t cap our federal assistance
funds for social services without notice #ust because we*re *have* provinces because legitimate
e,pectations created legally enforceable consultation obligations% case)
- =opinka ) makes two holdings regarding how the doctrine of legitimate e,pectations
doesn*t apply to pure policy K*s+
a) L*8ii1$* *+4*#$i!&s 0!&: #"*$* s(7s$&i2* "i8-s
- Therefore, 6C can*t compel Carliament to keep paying EGLlimited to procedural
relief
b) L*8ii1$* *+4*#$i!&s #$&: #!&s"$i& *ss*&i$% 0*1!#"$i# .*$("*s
- Can*t have new governments restrained from making policy changes due to doctrine
-"
of legitimate e,pectations
- Therefore, it was valid for the federal 5iberals to unilaterally put a cap on the growth of
payments to reduce the deficit
- +ount Sinai 0ospital v. 2uebe (200" SCC) (the %you promised to grant us a proper licence if
we moved neighbourhoods% case)
- The doctrine of legitimate e,pectations looks at the conduct of the public authority in the
e,ercise of that power including established practices, conduct, or representations that can be
characteri4ed as clear, unambiguous, and un8ualified, and the e,pectations can*t conflict with
the authority*s enabling statute
- 6innie ) makes a distinction between+
a) P"!#*0("$% .$i"&*ss
- (riven by Ba*er factors, such as nature of the interest, nature of the statutory
scheme, ectA
b) L*8ii1$* *+4*#$i!&s
- &nly applies to procedure based on the course of dealings, without guaranteeing
any substantial outcome
- @ust look at whether the gov*t2agency made promises and whether it would be
unfair to renege on normal promises
- 7ere, while the hospital had a right to be heard according to procedural fairness, they didn*t
have an actual right to get the proper licence because legitimate e,pectations doesn*t
guarantee a substantial outcome
- Ba*er v. Canada ("999 SCC) (the %1 had a legitimate e,pectation based on the Convention of
the &ights of the Child% case)
- :hile legitimate e,pectations is part of the doctrine of fairness2natural #ustice, it does not
create substantive rights; it will only affect the content of the duty of fairness owed to the
individual affected by the decision
- 1f claimant has 5H that a certain procedure will be followed, it will be re8uired by the duty
of fairness; if they have 5H that a certain result will be reached, fairness may re8uire more
e,tensive procedural rights than would otherwise be accorded; however, in none of these
situations can 5H lead to substantive rights outside the procedural domain
- 7ere, there is no legitimate e,pectation based on the C&C because it*s not the e8uivalent of
a gov*t representation about how humanitarian and compassionate grounds will be decided, as
it hasn*t be incorporated into domestic law yet
______________________________________________________________________________
______________________________
III. THE THRESHOLD FOR PROCEDURAL FAIRNESS
1< BAKR FACTORS TO DETERMINE WHETHER THERE IS A DUTY OF
PROCEDURAL FAIRNESS
- Crocedural fairness is something less than natural #ustice, but how far it departs from natural
-/
#ustice depends on the factors which determine the content of the duty of procedural fairness
- Cardinal+ every public authority has a duty of procedural fairness when making an
administrative decision that is (-) not of a legislative nature, and (?) which affects the rights,
privileges, or interests of an individual
- 9iholson+ the content of this duty is fle,ible depending on the circumstances
- Ba*er v. Canada ("999 SCC) (the %1 should get an e,emption under the -A on 7 M C grounds,
but your denial without reasons violated my right to procedural fairness because 1 didn*t get an
oral interview, children weren*t considered, and no submissions% case)
- The Ba*er criteria for considering the degree of fairness re8uired (note+ do this after the
*threshold* test)+
a) N$("* !. -* 0*#isi!& -* &$("* !. -* 0*#isi!& 7*i&8 1$0* $&0 -* 4"!#*ss
.!%%!,*0 i& 1$3i&8 i
i) .night+ classification of decisions as 8uasi-#udicial or administrative no longer
determinative
ii) Ba*er+ the closer a tribunal is to a court (or a %specific #udicial decision%), the more
likely C< applies
iii) .night+ there is a distinction between legislative v administrative decisions
a) A01i&is"$i2*;s4*#i.i# 0*#isi!&s > more C<, as they apply rules that affect
individuals
b) L*8is%$i2*;8*&*"$% 0*#isi!&s > no C<, as they*re broad policy-based decisions
affecting a wide range of people
i) 0ome6+ if a legislative2general decision (ie+ a municipal by-law) is aimed at a
specific party, then C< applies
ii) 0ome6+ legislatures have the power to pass bylaws in the name of the public
interest, but they must do so in accordance with C< if people are affected by the
bylaw
iv) -nuit 'apirisat+ purely ministerial public policy decisions don*t attract C< and are not
sub#ect to )', as only application of specific rules are sub#ect to )'
a) 5ook at the enabling statute to determine legislative intentAdoes the tribunal have
authority to make policy or are they limited to bureaucratic application of rules0
v) F+ compare the decision to what courts do (ie+ finding facts and applying law to facts)
b) N$("* !. -* s$(!") s#-*1* &$("* !. s#-*1* $&0 -* *"1s !. -* s$(*
4("s($& ! ,-i#- -* 7!0) !4*"$*s
i) Ba*er+ is this decision final or interim0 1s there a statutory right of appeal0
ii) Ba*er+ no statutory right of appeal N final decision 3 greater C<
iii) .night+ preliminary decisions receive less C< than final decisions; &e Able+ however,
if the preliminary decision has a great impact on the final decision, then C< appliesto
determine the content of C< for interim decisions, look at+
a) D*8"** !. 4"!+i1i) 7*,**& 4"*%i1i&$") $&0 .i&$% 0*#isi!&
i) &e Able+ preliminary decision was 9*s only chance at getting a positive final
decision, so he gets C<
ii) 1airy /8ners Co=op+ original investigator and settlement negotiations had no
C< attached to either because both processes were non-determinative and had no
impact on the final decision of the 6oard
-.
b) D*8"** !. -$"1 .$#*0 7) -* $44%i#$&
i) &e Able+ high degree of harm to the applicant results in more C<
iv) F+ look to if there*s an appeal option from the decision-maker (if yes, don*t worry)Aif
the decision is final, more fairness; if interim, usually no fairness
c) Ri8-s $..*#*0 -* i14!"$&#* !. -* 0*#isi!& ! -* i&0i2i0($% !" i&0i2i0($%s
$..*#*0
i) Cardinal+ not limited to rights, as if privileges or interests are affected, may also get
some degree of fairness
ii) Ba*er2.night+ the greater the impact of a decision on an individual*s rights and lives 3
more C<
iii) .night+ for the relationship between the tribunal and the individual, the court found
that there was a duty to act fairly in termination of an officeholder because of the dignity
of the Crown
a) 1unsmuir+ overrules this and holds that e,plicit language in a statute or I of
employment can trump common law duties of fairness for public employees;
therefore, since the law no longer draws a distinction between public office holders
and other employees, the duty of fairness will no longer have any application to
employee dismissals
iv) 0utfield+ the rights in 8uestion must be affected directly and substantiallyAtherefore,
e,amine+
a) (ifferent statutory conte,ts
b) Oalue of the interest to the individual or to society
c) =tatus of the individual
d) :hether the individual has the ability to e,ercise those procedural rights
e) :hether the %right% is a privilege or a right
f) H,amples of %rights% affected include+
i) 0ome6+ real property rights 3 greater C< duty and implied C5 duty to be heard
ii) <ebb+ subsidi4ed housing 3 right to C< in applying and termination
iii) 0utfield+ right to practice one*s profession
iv) 0utfield+ if being re#ected for a licence casts a slur on your reputation, then C<
and opportunity to be heard
v) F+ the greater the impact, the more protection is re8uired
d) L*8ii1$* *+4*#$i!&s -* %*8ii1$* *+4*#$i!&s !. -* 4*"s!& #-$%%*&8i&8 -*
0*#isi!&
i) Ba*er+ if a plaintiff has legitimate e,pectations that a certain procedure will be
followed, that procedure may be re8uired by the duty of fairness
ii) +t. Sinai+ 5H is driven by the conduct of public authority
iii) +t. Sinai+ 5H does not e8ual substantive rights, as it*s limited to procedural relief only
and not any substantive outcome
iv) +t. Sinai+ 5ook at whether the gov*t or agency made promisesAno need to show that
the applicant actually had 5H, #ust that it is unfair for the gov*t or agency to renege on
normal practices or promises
v) Ba*er+ international Convention of the Child does not create 5H because there*s no 5H
in a substantive outcome and a convention does not e8ual gov*t representation (as the
Convention hadn*t been ratified and incorporated into domestic law)
vi) &eferene &e Canada Assistane Plan+ 5H does not apply to 8uestions of pure policy
vii) F+ no e,pectations in a substantive outcome from 5H, but an applicant can e,pect
from promises or routine decisions from administrative decision-makers
-!
e) C-!i#* !. 4"!#*0("*s -* #-!i#*s !. 4"!#*0("*s 1$0* 7) -* $8*&#) is*%.
i) Ba*er+ courts should defer in the following cases+
a) :here the enabling statute grants tribunal the discretion to choose its own
procedures
b) :here the tribunal has e,pertise in developing its own procedure (ie+ C'TC,
securities commissions)
- Jote+ even where Charter issues are at stake, some deference to a tribunal with
e,pertise
c) :here the tribunal has clearly turned their mind to procedure and gives reasons for
choosing a particular procedure
d) :here the tribunal has a high caseload
ii) F+ has the agency been given a lot of leeway in its enabling statute0 (id the
legislature intend that the body develop its own procedures0 (o they have a lot of
e,pertise0
- 1n Ba*er, both sides agreed that a duty of procedural fairness applied to 7 M C decisions, as
it follows Cardinal in that it is clearly an administrative decision and affects %the rights,
privileges, or interests of an individual%; therefore, the threshold 8uestion for natural
#ustice2duty of fairness is conceded
- 7owever, as in .night, %the concept of procedural fairness is eminently variable and its
content is to be decided in the specific conte,t of each case%
- 7ere, after weighing the E factors, the failure to accord an oral hearing and give notice to
@s 6aker or her children was inconsistent with her participatory rights as re8uired by the
duty of fairness because while it*s a discretionary decision, is an e,ception within the scheme
of Canadian immigration law, and the statute accords considerable fle,ibility to the @inister
to decide on the proper procedure, there is no statutory right of appeal and it*s a decision of
e,treme importance to the applicant
______________________________________________________________________________
______________________________
IV. THE CONTENT OF PROCEDURAL FAIRNESS
1< INTRODUCTION
- .night+ %the concept of procedural fairness is eminently variable and its content is to be decided
in the specific conte,t of each case%
- Cre-9iholson, #udicial decisions were entitled to natural #ustice, while administrative decisions
not entitled to any procedural rights
- 7owever, after 9iholson, there is no more #udicial28uasi-#udicial2administrative spectrum, and
the e,tension of the duty to a wide range of administrative decisions kept the content of the duty
fle,ible and conte,t-specific
- 'e6t+ one way of thinking about the content of fairness is that it involves compliance with some,
but not all, of the re8uirements of natural #ustice
- To determine the content, some start by looking at the enabling statute and whether the A'A
provides for any procedural rights, but for a large range of administrative decision-makers,
common-law considerations govern the scope and content of the duty of fairness, with Ba*er
?G
being the leading case
- The ne,t sections describe different re8uirements of natural #ustice; the duty of fairness may
include one or more of the components
______________________________________________________________________________
______________________________

2< RIGHT TO NOTICE OF A POTENTIAL DECISION
- The general rule is that notice must be ade8uate 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
- :hile it may be easy to assert that notice is re8uired, it may be difficult to determine (usually
decided based on the case law)+
a) The appropriate length of notice
b) The way in which notice should be provided
c) The particulars that must be included
______________________________________________________________________________
______________________________
@< RIGHT TO DISCLOSURE OF PARTICULARS
- 9t common law, one of the main principles of natural #ustice is the right to an independent and
impartial proceeding, one of which is the concept of %audi alteram partem%+ to %hear the other
side% so that the applicant must know the case against them
- (isclosure principles from criminal law don*t apply to administrative proceedings; instead, it is
enough that the administrative decision-maker discloses the information he2she replied upon and
that the individual knows the case he2she must meet
- <ebb+ caseworker received notice of the problems; :ebb appeared to have received notice of
problems although illeterate
- .night+ officeholder-at-pleasure gets C< because of duty of the Crown to act with dignity, and I
re8uired notice of reasons for dismissal and an opportunity to be heard
- 1airy Produers Co=op+ where the decision is preliminary or not binding on a final decision, 9
is only entitled to know the substance of the case against him, not full disclosure
______________________________________________________________________________
______________________________
4< RIGHT TO MAKE WRITTEN SU6MISSIONS
- 9iholson+ J*s right to make submissions concerning his dismissal could be satisfied by oral or
written submissions at the 6oard of Commissioner*s discretion
- Ba*er+ a right to written submissions met the duty of fairness in the conte,t of a re8uest for
relief from deportation on C M 7 grounds, and therefore no oral hearing was re8uired
______________________________________________________________________________
______________________________
?-
E< RIGHT TO A HEARING WITHIN A REASONA6LE TIME
- Blenoe+ %the principles of natural #ustice and the duty of fairness include the right to a fair
hearing and that undue delay in the processing of an administrative proceeding that impairs the
fairness of the hearing can be remedied%
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______________________________
F< RIGHT TO AN ORAL HEARING
- 9s part of the audi alteram partem rule, traditionally the right to an oral hearing was usually
re8uired as an element of natural #ustice
- 9s the duty of fairness emerged, the presumption in favour of an oral hearing (as opposed to
written submissions) disappeared, and deference to procedural choices became the norm
- Ba*er+ as there is no more automatic right to an oral hearing, the 8uestion is whether the
applicant received a %full and fair consideration% of their claim given the circumstances
- 9iholson+ written submissions sufficed (no oral hearing), as while a dismissed police officer
should have been told why he was dismissed and should have been given the opportunity to
respond, the 6oard had discretion as to whether it should be an oral or written hearing
- Ba*er+ written submissions sufficed (no oral hearing), as the lack of an oral hearing for a
woman applying for an e,emption to immigration re8uirements was not found to violate
procedural fairness
- $enerally, oral hearings will be re8uired (otherwise written submissions will suffice) if+
a) 9pplicant is entitled to natural #ustice
b) Ba*er+ credibility is an issue
- 6eet4 ) in Singh+ condemned lack of a %full oral hearing% in a situation where %life and
liberty may depend on findings of fact and credibility%
- :ilson ) in Singh+ while an oral hearing may not be re8uired in every case where s/
Charter rights were at stake, %where a serious issue of credibility is involved,
fundamental #ustice re8uires that credibility be determined on the basis of an oral
hearing% (reaffirmed in Suresh)
c) Singh+ life and death is at stake (ie+ s/ principle of fundamental #ustice argumentAsee
Charter section)
- 9ccording to audi alteram partem, an applicant must know the case he has to meet, which
includes having access to the info before decision-makers and having a summary of the caseA
case law e,pands on this content+
a) Singh+ @inister submitted additional info to the appeal board which =ingh didn*t know
about
b) Chiarelli+ with national security cases, applicant must have a summary of the case against
him, but need not have every detail
c) Suresh+ :here an applicant establishes a prima faie case that he has a risk of facing
torture, he must have notice of the full case against him and be given an opportunity to
respond, which includes an opportunity to view the @inister*s info before making
submissions
??
- 1f the A'A applies to the tribunal, it may affect the right to an oral hearing+
a) s;"+ a tribunal may hold any combo of written, electronic, or oral hearings for an
application, interim, or preliminary matter
- 1f s;" doesn*t apply, then the common law applies (oral hearing only if credibility at
issue or natural #ustice re8uired)
b) s;.+ presumption is that parties have a right to cross-e,amine opposing parties2witnesses
______________________________________________________________________________
______________________________
G< RIGHT TO COUNSEL
- There is no common law absolute right to counsel, and the right*s e,istence is fact-dependent;
however, in many cases, there is a presumption in favour of the right to counsel and many statutes
(ie+ s;? of the A'A) provide for it (but see Christie)
- The right to counsel under the Charter (s-G(b)) is limited to circumstances of %arrest or
detention%
- Christie+ the =CC held that #urisprudence, the Constitution, and the rule of law %do not support
the conclusion that there is a general constitutional right to counsel in proceedings before courts
and tribunals dealing with rights and obligations%
- Therefore, post-Christie, the right to counsel in administrative proceedings must be determined
on a case-by-case basis
- -rvine+ counsel may be allowed to e,amine witnesses at one stage, but not during other stages
- -rvine+ it*s permissible for counsel to be present in the absence of the application
______________________________________________________________________________
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C< RIGHT TO CALL AND CROSS-EDAMINE WITNESSES
- The right to call and cross-e,amine witnesses is normally part of the right to an oral hearing, but
the scope of the right is sub#ect to control by the relevant tribunal
- This right is now enshrined in some statutes, sub#ect to some limitationsie+ s;.(?) of the A'A
states that the tribunal may limit cross-e,amination when satisfied that it has been sufficient to
disclose all issues
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______________________________
H< RIGHT TO WRITTEN REASONS FOR A DECISION
- 'easons are given to ensure that a person affected by a decision-making process is not given an
arbitrary decision
- Ba*er+ while not always re8uired, %in certain circumstances, including when the decision has
important significance for the individual, or when there is a statutory right of appeal, the duty of
procedural fairness will re8uire a written e,planation for a decision%
?;
- Therefore, while reasons are not always re8uired, they may be re8uired in %certain
circumstances%, such as+
a) Ba*er+ decision in 8uestion is important2there is an important interest at stake
b) Ba*er+ facilitate an appeal process2there is a statutory right of appeal
c) 0utfield+ decision will impose a slur on the applicant*s reputation
d) 0utfield+ statutory duty to investigate
- Ba*er+ the re8uirement is for %some form of reasons%, which gives leeway as to form; there, the
Court accepted as reasons informal notes that had been prepared by one immigration officer for
the benefit of another (proffered when 6aker*s counsel asked for reasons)
- Suresh+ not enough for notes by a decision-maker to be reasons for the decision to deport that
carries the possibility of torture
- Colicy+ 5*7eureu, (ube ) in Ba*er claims that reasons foster better decision making by
ensuring that issues and reasoning are well articulated, more carefully thought out, and allow
parties to decide better whether 8uestion should be appealed (see )enn 5au C9J)
- .hosa (2009 SCC)+ re-establishes Ba*er on giving reasons, as while 1unsmuir held that giving
deference means respecting reasons that the tribunal gave or reasons a tribunal might have given,
6innie ) holds that 1unsmuir didn*t soften the Ba*er duty to give reasons as a matter of
procedural fairness
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V. THE THRESHOLD FOR FUNDAMENTAL 5USTICE
1< SECTION 2A*< OF THE BILL !" RI#$TS AND SECTION G OF THE C$ARTR
- Jote that there is a difference between the Bill of &ights and the Charter+
6i%% !. Ri8-s C-$"*"
- <ederal only
- 9pplies to %persons% (ie+ corps) and
%individuals%
- Croperty rights (s-(a))
- =ame reach as #udicial review
- &verrides legislation absent e,press intention
- Kuasi-constitutional document
- <ederal, provincial, and territories
- 9pplies to %everyone%
- Jo property rights
- 9pplies to %government% (different from )')
(s;?)
- &verrides legislation always
- Hntrenched in the constitution
- Bill of &ights, s?(e)+ %E2*") %$, !. C$&$0$ s-$%%? (&%*ss i is *+4"*ss%) 0*#%$"*0 7) $& A# !.
-* P$"%i$1*&Ashall be construed or applied so as toAdeprive a 4*"s!& of the right to a fair
hearing in accordance with the 4"i&#i4%*s !. .(&0$1*&$% /(si#* for the determination of his
rights and obligations%
- Charter, s/+ %Hveryone has the right to life, liberty, and security of the person, and the right not
to be deprived of it e,cept in accordance with the principles of fundamental #ustice
- 'emember that the Charter applies only to %government%Amust decide whether the body in
8uestion is fulfilling a government function in a way that isn*t an issue with the Bill of &ights
- 1n sum, there are ? sources of fundamental #ustice
?B
a) Bill of Rights
i) S(7/*#s+ federal institutions only; does not apply (-) provinces or provincial gov*t
agencies or (?) C6C9 corporations
ii) 9($si-C!&si(i!&$%+ <ed gov*t can legislate e,pressly so that the Bill of &ights does
not apply
iii) Si1i%$" ! /(0i#i$% "*2i*,+ if )' achievable under C5, then you get )' under the Bill
of &ights
b) Charter
i) S(7/*#s+ federal, provincial and territorial governmental bodies
ii) G!2*"&i&8 9(*si!&+ is %governmental action% involved0 Jot at all like )'
iii) C!&si(i!&$%+ all legislation must be in accordance with the Charter, unless saved
by s-
iv) L$&8($8* !. s.G
- %<undamental #ustice%
- %Hveryone% corporations
- %5ife, liberty M security of person% - cannot be deprived of those rights unless in
accordance w2 C<)
- %'ight% also includes interests and privileges
- Jo property or economic rights
- Blenoe+ no independent right to %dignity% or %self-worth%
- Blenoe+ no constitutional right to be protected against stigma in human rights
hearing+
(-) investigative2conciliatory, not prosecutorial, (?) no stage pronouncement on
general fitness
- Singh+ at a minimum, Charter principles of fundamental #ustice are the same as principles of
fundamental #ustice under Bill of &ights
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2< PROCEDURAL FAIRNESS AND THE PRINCIPLES OF FUNDAMENTAL 5USTICE
- To access the procedural safeguards of s/, complainants must cross the threshold test of
establishing that their %life, liberty, or security% interests are impugned by the relevant decision
- Case law has determined that these are three distinct rights, not one group
- 1f a complainant fails to pass the threshold 8uestion, procedural fairness may still be due, but
they must succeed under common law (ie+ administrative law principles) rather than s/
- Singh+ while Carliament can abrogate common law rules of procedural fairness with clear
legislative intent, constitutional provisions can further trump any Carliamentary limitation of
common law C< rules, so efficiency and convenience can*t override principles of <)
- Singh+ look at the conse8uences of governmental action to determine whether s/ is invoked by
infringing %life, liberty, or security of the person%
- Singh+ while Charter 3 Bill of &ights, it is unclear if the content of a principles of fundamental
#ustice duty are the same as an administrative procedural fairness duty
- Suresh+ however, common law procedural fairness factors should inform the principles of
fundamental #ustice analysis, so start with the E Ba*er factors
?E
- Prostitution &eferene+ s/ doesn*t cover every possible right an individual might have; only
applies when there is a deprivation of the right to life, liberty, or security of the person
______________________________________________________________________________
______________________________
@< ORAL HEARINGS
- :hile deference to procedural choices became the norm for common law procedural fairness
(ie+ written hearings in 9iholson and Ba*er), there is a countervailing tendency with the Charter
and the Bill of &ights engaged (ie+ Singh and Suresh)
- Singh v. Canada ("9#5 SCC) (the %refugee claimants claim that the '=9C %reasonable
grounds% for claim @inister 196 process under the -mmigration At violated our s/
Charter and s?(e) Bill of &ights rights by not allowing an oral hearing% case)
- Charter rights apply to =ingh because %everyone% in s/ includes %every human being who
is physically present in Canada% and %security interestAmust encompass freedom from the
threat of physical punishment as well as freedom from such punishment%
- :hile an oral hearing is not always re8uired when a s/ interest is engaged, it is always
re8uired when the issue of credibility is at stake, so here the legislative scheme that provided
inade8uate opportunity to the refugee claimant to state his case (ie+ no oral hearing) and know
the case he has to meet violated the principles of fundamental #ustice
- The deprivation wasn*t saved under s- because issues of administrative efficiency and
convenience can*t override the C<)
- N!*+ since Singh, it has emerged that s/ deprivations do not always re8uire an oral hearing
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4< INCORPORATION OF THE BAKR FRAMEWORK UNDER SECTION G
- Ba*er created a framework for determining the content of procedural fairness with E non-
e,haustive conte,tual factors, none of which was necessarily determinative; 5*7eureu,-(ube )
then applied the framework to determine 6aker*s participatory rights
- Ba*er+ participatory rights included a right to make written submissions and to have those
submissions fully considered, but did not entitle 6aker to an oral hearing and notes themselves
were sufficient to fulfill the duty to give reasons
- Suresh+ duty to give reasons becomes a principle of fundamental #ustice and is incorporated into
the analysis of Ba*er*s E factors
- Suresh v. Canada (2002 SCC) (the %procedures of the -mmigration At that allow for individuals
(regarded by the @inister to be dangerous) to be deported *to a country where the person*s life or
freedom would be threatened* violate s/% case)
- :hile the procedural protections of fundamental #ustice under s/ are not identical to the
procedural protections of the duty of fairness in Ba*er, the same principles underlie these
?"
duties, so Ba*er factors can decide what s/ protections should be provided
- =ince statute didn*t provide any procedural protection, under the E Ba*er factors+
a) N$("* !. 0*#isi!& > resembles #udicial proceedings, but made by individual with
discretionAdoesn*t help
b) S$(!") s#-*1* > sE;(-)(b) @inister claim was a final decision w2o appeal, without
provision for a hearing, without re8uirement for written or oral reasons, or anything,
while there were fair procedures elsewhere in 9ctAgreater protection
c) Ri8- $..*#*0 > highly significant due to risk of tortureAgreater protection
d) L*8ii1$* *+4*#$i!&s > convention doesn*t create 5H, but reasonable to e,pect
e,ec will abideAgreater protection
e) C-!i#* !. 4"!#*0("*s > (eference to @inister to choose appropriate procedures, but
doesn*t outweigh other factors
- &verall, weighing the factors does not give =uresh a full oral hearing or complete #udicial
process, but he re8uires more than the procedures re8uired by sE;(-)(b) of the At (ie+ #ack
s8uat), and here deportation wasn*t #ustified under s-
- Therefore, in cases where an applicant establishes a prima faie case that he risks facing
torture, he must have notice of the full case against him and be given an opportunity to
respond; this includes an opportunity to view the @inister*s information before making
written submissions; @inister must also personally provide written reasons for the decision
e,plaining (-) why the applicant is a danger, and (?) why the applicant won*t be tortured at
home
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E< DUTY TO DISCLOSE AND THE RIGHT TO REPLY
- Prithard v. /ntario (200> SCC)+ the re8uirements of procedural fairness, which are a feature of
the principles of fundamental #ustice, does not re8uire disclosure of a privileged legal opinion
given to a @inister
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______________________________
F< DUTY TO GIVE REASONS
- Ba*er+ administrative decision-makers have a duty to give reasons whenever important interests
are at stake as part of the duty of procedural fairness; however, the notes of a #unior officer were
deemed to satisfy the reasons re8uirement even though this officer didn*t make the final decision
- Suresh+ @inister herself (not a delegated officer) must provide %responsive% reasons as a
principle of fundamental #ustice
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G< RIGHT TO STATE-FUNDED LEGAL COUNSEL
- Christie+ no re8uirement for state-funded legal counsel found in either the duty of procedural
fairness or the rule of law in the administrative conte,t
?/
- 9e8 Bruns8i* v. ?. (7. ("999 SCC)+ where a decision impairs a s/ interest, if government
restriction of the %security of the person% right has a serious and profound effect on a person*s
psychological integrity, the principles of fundamental #ustice may re8uire the Crown to provide
legal aid (ie+ here, circumstances were a gov*t order suspending parents* custody of their children)
______________________________________________________________________________
______________________________
C< UNREASONA6LE STATE-CAUSED DELAY
- :hile s--(b) protects a person charged with an offence to be tried within a reasonable time,
this is not incorporated under s/
- 7owever, an element of procedural fairness is the concept of administrative delay, and Blenoe
recogni4es the possibility whereby psychological harm or stigma that is the direct result of state-
caused delay could infringe the s/ right to %security of the person% and result in an administrative
stay of proceedings as a remedy
- Blenoe v. British Columbia (2000 SCC) (the %;G month delay from accusation of se,ual
harassment to scheduling of a hearing destroyed my reputation and family, and since this violated
my s/ security right, 1 want a stay of proceedings% case)
- The 6C 7uman 'ights Commission was a %government organi4ation% under s;? of the
Charter because while it was an independent ad#udicative body, it was operating pursuant to
statutory authority and implementing gov*t human rights policy
- 7owever, 6astarache ) finds no violation of the s/ %liberty% interest, as while it can include
%psychological integrity%, here the delay didn*t affect any fundamental life choices or affect
individual autonomy (umA&I)
- 9lso, while %serious state-imposed psychological stress% can infringe the s/ %security of the
person% interest, here there was simply inadvertent delay due to incompetence, not a direct
violation of psychological integrity
- :hile there was no stay of proceedings here, it can be granted if significant pre#udice
results from unreasonable delay b2c+
a) P"*/(0i#* ! .$i"&*ss !. -* -*$"i&8 > witness died, documents lost, ectA
b) A7(s* !. 4"!#*ss > inordinate delay caused such significant psychological harm to the
person or attached a stigma to their reputation that it brings the whole human rights
system into disrepute (almost impossibly high threshold)
- 5e6el ), in dissent, sarcastically remarks that unreasonable delay is always unreasonable
and it doesn*t matter if the state-caused delay only wrecked your life and not #ust your
hearing, and sets out an alternative test for unreasonable delay+
a) Time taken compared to inherent time re8uired to prosecute the matter
b) Causes of the delayAie+ does ( make a lot of challenging motions for disclosure0
e) 1mpact of the delayAie+ here, hurt not only 6lencoe but also his friends and family
- 5e6el ) also saw ; possible remedies for delay+ (-) stay, (?) e,pedited hearing, and (;)
costs
______________________________________________________________________________
?.
______________________________
H< % &ART? I' CAMRA HEARINGS
- 1ssuance of security certificates under the -mmigration and &efugee Protetion At authori4e
detention of foreign nationals and permanent residents (not citi4ens) suspected of terrorism, and
review of the detention is conducted behind closed doors if the evidence can*t be disclosed for
reasons of national security
- Therefore, e6 parte and in amera hearings (closed-door hearings in which neither the person
named on the certificate nor his or her lawyer is present) are held at the re8uest of the Crown if
the #udge believes disclosure of evidence could undermine national security
- Char*aoui v. Canada (200% SCC) (the %1 was a permanent resident and had a security certificate
issued against me, but these e6 parte and in amera hearings violate my liberty and security of
the person interests under s/ and shouldn*t be upheld under s-% case)
- Crocedure engages ? interests in s/+
a) Li7*") > persons sub#ect to security certificates face detention pending deportation
b) S*#("i) !. -* 4*"s!& > person*s removal may be to a place where his or her
life2freedom would be threatened
- 1t also violated the principles of fundamental #ustice because it denies the person named on
the certificate a fair hearing, which includes a hearing before an independent and impartial
tribunal who must decide on the facts and law, and also includes the right to know the case to
meet and to have an opportunity to answer it
- Therefore, @c5achlin C) for a unanimous court found that weighing interests of individual
and society during s- analysis didn*t #ustify the procedure because the infringement didn*t
minimally impair the right at stake
- N!*+ court left open the %Suresh e,ception% where e,ceptional circumstances may entitle
Canada to deport a person to torture
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VI. INDEPENDENCE? IMPARTIALITY? AND 6IAS
1< INTRODUCTION
- The rules of procedural fairness or natural #ustice are divided into two separate categories+
a) Au(i Alteram &artem > (uty to %hear the other side%Asee sections on various content on
the duty of fairness
b) 'emo )u(e* In Sua Causa Debet sse > %Jo one is fit to be the #udge in his own cause%
(ie+ decisions not tainted by bias)
- /ean Port+ independence, impartiality, and bias are part of the ?
nd
aspect of natural
#ustice2procedural fairness2fundamental #ustice (nemo :ude6) and are encapsulated in two central
ideas that inform the right to an independent and impartial proceeding (in addition to unwritten
constitutional principles and the rule of law)
?!
- Three terms here, all of which encapsulate the notion that %#ustice must not only be done, but
must be seen to be done%+
a) 6i$s > the %evil%Amere perception of partiality towards a particular outcome
b) I14$"i$%i) > the %ideal state%Aimpartial decision-maker makes #udgments with an open
mind without improper influences
c) I&0*4*&0*&#* > the %means%Astructural factors that achieve impartiality
- =teps in the analysis+ personal structural independence institutional practices
- Fi&$% 9+ %:hat do you think of this entire scheme overall0%
- :hile Ba*er gives E factors for determining the content of procedural fairness, there are no
agreed set of factors to establish the degree of independence an applicant is to get from its
tribunal members
- 9fter looking at the individual and structural independence of the tribunal, check if the Charter
or Bill of &ights is implicated+
a) /ean Port > i. -* Charter+Bill of Rights is i14%i#$*0? -*"* is $ #!&si(i!&$%
8($"$&** !. i&0*4*&0*&#*
- This includes a fi,ed salary, appointment for life, ectA (see pE. of C9J for #udicial
standards of independence)
b) /ean Port > i. -*"* is &! Charter "i8- i14%i#$*0? -*"* is &! #!&si(i!&$%
8($"$&** !. i&0*4*&0*&#*
- /ean Port+ e,press legislative intent can oust any common law entitlements arising
around bias and independence
- +ats4ui+ standard for bias will vary depending on conte,t, such as when dealing with
<irst Jations gov*t
- 7owever, even if there are no personal bias or structural independence issues, the analysis must
e,amine institutional practices to see how the agency is structured and whether this leads to a
reasonable apprehension of bias
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2< REASONA6LE APPREHENSION OF 6IAS
A< GENERAL TEST
- The general test for bias is spelled out by de $raddpre ) in Committee for 7ustie and ,iberty v.
9ational @nergy Board ("9%# SCC)+
- %The apprehension of bias must be a reasonable one, held by reasonable and rightminded
people, applying themselves to the 8uestion and obtaining therefrom the re8uired
information 1n the words of the Court of 9ppeal, that test is *what would an informed
person, viewing the matter realistically and practically > and having thought the matter
through > conclude*%
- +ats4ui+ standard for bias varies depending on conte,t, so what will give rise to a reasonable
apprehension of bias in one administrative decision-making conte,t may not raise a perception of
bias in another
______________________________________________________________________________
______________________________
@< PERSONAL 6IASES
;G
A< INDIVIDUAL 6IAS
- There are ways during a hearing that a member can show individual bias+
a) A&$8!&is1 0("i&8 -* -*$"i&8
- Ba*er+ unreasonably aggressive 8uestioning or comments about testimony are e,amples
of antagonism during the hearing, and this can also e,tend to written or paper hearings
b) Ass!#i$i!& 7*,**& 4$") $&0 0*#isi!& 1$3*"
- ie+ tribunal members are related to one of the parties, counsel for tribunal previously
acted for one of the parties
c) I&2!%2*1*& !. 0*#isi!&-1$3*" i& *$"%i*" s$8* !. 4"!#*ss
- @ost commonly occurs when decision-maker has heard the case before, decides the
second case in the same way, but original statements combined with the second decision
lead to a reasonable apprehension of bias
d) P*#(&i$") $&0 !-*" 1$*"i$% i&*"*ss
- 9t common law, direct pecuniary (ie+ financial) or other material interests dis8ualify the
ad#udicator
______________________________________________________________________________
______________________________
6< ATTITUDINAL 6IAS
- 1n addition to the factors above, at a personal level, attitudinal bias of the members can raise a
reasonable apprehension of bias
- 7owever, this is sub#ect to caveats, as the case law demonstrates
- ?reat Atlanti A Paifi v. /ntario ("993 /nt. 1iv. Ct) (the %you were a prior activist on se,
discrimination, so you can*t be appointed as a 7uman 'ights Commissioner and ad#udicate this
case on systemic se, discrimination% case)
- 9n individual that has a prior history of activism in a certain area does not automatically
e,clude them for bias
- 7owever, being a complainant before the same tribunal on the same issue that is currently
being ad#udicated does raise a reasonable apprehension of bias
- 9e8foundland 'elephone Co. v. 9e8foundland ("992 SCC) (the %consumer advocate who hated
utilities shouldn*t be appointed to the Ftility 6oard because now he*s clearly anti-utility and pro-
consumer% case)
- Fnder test for the reasonable apprehension of bias, what is %reasonable% varies greatly
depending on the nature of the tribunal
- Therefore, behaviour that would dis8ualify a member of an ad#udicative tribunal may be
perfectly acceptable in a member of a tribunal whose decisions are policy-based or whose
functions approach the legislative end of the spectrum
- 7ere, the consumer advocate was appointed for a purpose, so there should be no surprise if
they act according to their biases
;-
- ,arge v. Stratford+ to e,clude everyone who ever e,pressed a view on human rights issues
would e,clude those best 8ualified to ad#udicate fairly and knowledgably in a sensitive area of
public policy
______________________________________________________________________________
______________________________
C< DIFFERENT STANDARDS FOR DIFFERENT AGENCIES
- 9e8foundland 'elephone+ there are different bias tests depending on the stage in the
proceedings+
a) I&2*si8$i2* A4"*--*$"i&8< s$8*+ so long as the elected official is capable of being
persuaded when they enter the hearing, there is no bias (ie+ the %persuasion% test)
b) H*$"i&8 s$8*+ reasonable apprehension of bias test
- 1n 9e8foundland 'elephone, the consumer advocate was allowed to make 8uestionable
comments at the investigative2pre-hearing stage, but had to keep his mouth closed at the hearing
______________________________________________________________________________
______________________________
4< STRUCTURAL INDEPENDENCE OF THE TRI6UNAL
A< INTRODUCTION
- 1n recent years, lack of independence has surfaced as a separate ground for challenging a
perceived lack of integrity in administrative decision-making processes, and litigants have pushed
for tribunals to be held to the same degree of independence as the courts
- :hile independence of ad#udicative bodies is evaluated by the same reasonable apprehension of
bias test used for impartiality from Committee for 7ustie and ,iberty, it has a different focus+
- 1n Balente, 5e (ain ) made it clear that the focal point of the courts* in8uiries about the
state of the reasonable person*s mind in such cases was directed at that person*s perception of
%whether the tribunal en#oys the essential ob#ective conditions or guarantees of #udicial
independence, and not a perception of how it will in fact act%
- F(&0$1*&$% 9+ is the tribunal %sufficiently free% of factors that could interfere with an
ability to make impartial decisions0
- Ale6 Couture v. Canada ("99" 2ue. CA)+ there are ; characteristics of independence+
a) S*#("i) !. T*&("* > decision-makers can only be fired for cause and with certain
procedural safeguards
b) Fi&$&#i$% S*#("i) > decision-makers who are full-time board members must be paid a
sufficient wage so that they are not destitute and open to bribery; salaries must also be secure
and cannot be arbitrarily reduced
c) I&si(i!&$% I&0*4*&0*&#* > structure must be independent, so decision-makers cannot
sit on two separate boards in front of which the same individual appears (includes both
administrative and ad#udicative independence)
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6< FLEDI6LE STANDARDS FOR TRI6UNALS
;?
- The standard for tribunal independence is not as strict as it is for #udicial independence, so
guarantees of tribunal independence can be interpreted in a fle,ible way to account for the
functions performed by the tribunal under scrutiny
- Canadian Paifi v. +ats4ui -ndian Band ("995 SCC) (the %we*ve had our procedural fairness
rights violated in trying to ta, @ats8ui real property because there*s no independence within the
@ats8ui appeal structure% case)
- @a#ority found no reasonable apprehension of bias for insufficient independence because
the courts have an interest in furthering <irst Jation self-government and the appeal pr ocess
hadn*t actually been tested yet
- Therefore, look at the tribunal structure in practice to determine independence, rather than
simply e,amining the statute, as a tribunal may lack independence in theory but not in
practice
- 2%>%=3"%> 2uebe v. &egie ("99$ SCC) (the %you revoked our li8uor licence but the 6oard
wasn*t %independent and impartial% because its lawyers performed multiple functions (ie+
investigate, prosecute, write opinion) that were permitted by statute% case)
- 1nstitutional bias test looks at %substantial number of cases%, and where the statute doesn*t
prohibit, a tribunal must put in place procedural safeguards to ensure that the same person
doesn*t wear multiple hats and produces a reasonable apprehension of bias
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C< WAVES OF TRI6UNAL INDEPENDENCE
- :hile the first wave of independence e8uated courts with tribunals, the second wave with
/ean Port agreed that they are different
- /ean Port 0otel v. BC (200" SCC) (the %members of the 6C 5i8uor 9ppeal 6oard aren*t
sufficiently independent to rule that we violated the ,i4uor Control At and impose penalties
because they*re at-pleasure appointmentsAie+ - year term, part-time, paid per diem, reasonable
e,penses paid, overlapping functions, ect% case)
- Confronted with silent or ambiguous legislation, courts will infer that the legislature wanted
the tribunal to comport with natural #ustice; however, like all principles of natural #ustice, the
degree of independence re8uired of tribunal members may be ousted by e,press statutory
language (e,cept if there*s a Charter argument) (Charter statute common law)
- 7ere, legislature*s intention that 6oard members should serve at-pleasure is une8uivocal, so
there is no room to import common law doctrines of #udicial independence; tribunal members
can be as biased as the statute validly lets them be
- 9lso, the 6oard is not a court, so there is no free-standing constitutional principle of tribunal
independence
- Therefore, a variety of tribunal appointments may satisfy the re8uirement of security of
tenure so long as there are no constitutional standards at play and the terms of the
appointment derive from constitutionally valid legislation
;;
- 6C A'A, s;+ tribunal members are appointed for an initial term of ?-B years, with
reappointment for additional terms up to E years
- +.enCie v. +inister of Publi Safety (200$ BCSC)+
- Case rendered moot by the 6CC9, but suggested that tribunal members at the high end of
the ad#udicative spectrum should have more independence because they play a 8uasi-#udicial
role in the process
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4< INSTITUTIONAL PRACTICES
- 1n admin law, methods used to promote consistency in decision-making across the tribunal have
given rise to allegations of a reasonable apprehension of biasA9+ has the ad#udicative
independence of any individual member been compromised0
- 1n a trilogy of cases, the =CC set out guidelines that tribunals should follow so that members
can collaborate within their institution to promote consistency of outcomes without
compromising the ad#udicative independence of any individual decision-maker
- -nternational <ood8or*ers v. Consolidated=Bathurst ("990 SCC) (the %full-board meeting to
maintain coherence in 6oard decisions on union-employer disputes violated natural #ustice
because ad#udicative independence of board members was breached% case)
- $onthier ) for ma#ority holds the full board meetings as practiced by the board, even
including members not sitting on the panel, does not impinge on the ability of panel members
to decide according to their opinion so as to give rise to a reasonable apprehension of bias or
lack of ad#udicative independence
- Audi alteram partem (%hear the other side%) imposes conditions on full board meetings+
a) Can*t discuss facts, take minutes, and can only discuss policy
b) @ust disclose any new grounds and allow for representations based on those new
grounds
- 7ere, the decision-makers, while possibly being %influenced% by persons who haven*t heard
the evidence, still have the freedom to decide according to their own opinions and must
assume full responsibility for the final decision, so there*s no undue pressure
- =opinka ) in dissent found that the effect of full board meetings would unduly influence
#unior members, which creates a reasonable apprehension of bias, and treating policy as *law*
is incorrectAshould be treated like *fact* for new submissions
- 'rembley v. 2uebe ("992 SCC) (the %first draft favoured us, but it was sent to the Cresident of
the Commission who disagreed, and after he raised this opinion at the %consensus table%, one of
original members changes his mind and leads to our denied claim% case)
- :hile a consultation process by plenary meeting designed to promote ad#udicative
coherence may be acceptable (ie+ Consolidated=Bathurst), the process must not impede the
ability or freedom of the members to decide according to their own conscience2opinion or to
;B
create an appearance of bias in the minds of the litigants
- 7ere, the mandatory consensus table practice of the Commission, with minutes, hand votes,
the Cresident of the Commission present, and not created by statute, was indicative of
coercive consultation that breached the rules of natural #ustice and created a reasonable
apprehension of bias
- ?eCa v. Canada (2005 Fed. Ct.) (the %institutional practice of lead cases to deal with the heavy
caseload of 7ungarian refugee claims created a reasonable apprehension of bias on an
institutional, not personal level% case)
- <or institutional bias, there must be the potential for conflict between the interests of
tribunal members and those of the parties who appear before them which will create a
reasonable apprehension of bias in the mind of a fully informed person in a substantial
number of cases; if not, personal bias on a case-by-case basis
- 7ere, the 1mmigration and 'efugee 6oard was on the high end of the procedural fairness
spectrum and the %entire factual matri,% raised fears of bad faith decision making, so there
was enough evidence for institutional reasonable apprehension of bias
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PART FIVE STANDARD OF REVIEW
I. INTRODUCTION
- U%i1$* 9+ when can courts substitute their #udgment for the #udgment of an administrative
tribunal0
- Jote that substantive review is much harder to get than procedural review, as the courts are
generally hesitant to overturn a tribunal*s substantive decisionAhowever, a court might intervene
for political reasons or where a tribunal lacks e,pertise
- Cre-1unsmuir, there were ; different standards of review; post-1unsmuir, there are ?, but the
6C A'A keeps patent unreasonableness alive in sE.+
a) P$*& U&"*$s!&$7%*&*ss > most deference, as court will only overturn decision if no one
in their right mind would*ve done it
b) R*$s!&$7%*&*ss Simpliciter > middle ground, most fre8uent, as court will only overturn if
the decision was unreasonable
c) C!""*#&*ss > least amount of deference, as court will only overturn the decision if it is
clearly %wrong%
- 1unsmuir+ these standards are separate buckets of review that are not applied on a spectrum
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II. STANDARD OF REVIEW FOR 5URISDICTIONAL 9UESTIONS CORRECTNESS
- $enerally, tribunals can only answer 8uestions that fall within their #urisdiction (ie+ human
rights tribunal can*t do labour law K*s)
;E
- 1unsmuir+ Correctness applies to %true 8uestions of vires% (resurrects #urisdiction), 8uestions of
%general law of central importance to the legal system and outside the ad#udicator*s e,pertise%,
and constitutional K*s regarding the division of powers
- BibeaultD in determining #urisdiction, 9+ did the legislature intend for this 8uestion to be within
the #urisdiction of this tribunal0
- @nbridge+ under a pure ultra vires analysis, ask whether s___ of the enabling statute, properly
interpreted, would give the 6oard #urisdiction to answer the 8uestion (or, in @nbridge, to make
rules2regulations)
- 1f the tribunal does not have #urisdiction to answer the 8uestion, the court accords no deference
to the 6oard*s view and the court must apply a correctness standard to the answer
- CUP@ v. 9e8 Bruns8i* ,i4uor Corp ("9%9 SCC) (the %s-G?(;)(a) of the Publi Servie
,abour &elations At shouldn*t prevent replacement workers and the 6oard didn*t have
#urisdiction to interpret the *with any other employee* wording% case)
- :hile past case law held that a 6oard couldn*t give itself #urisdiction by a wrong decision
on a preliminary2collateral point upon which the limit to its #urisdiction depends, (ickson )
warns that courts should not be so 8uick to consider everything a #urisdictional 8uestion
- Courts should be reluctant to brand as #urisdiction what the tribunal may actually be able to
do, given the enabling statute
- :here the statute is ambiguous, courts should grant the tribunal more deference in
answering the #urisdictional 8uestion, and this includes #urisdiction over the sub#ect matter,
parties, and the remedy
- 7ere, since the 6oard was asked by the parties to determine the complaints and neither party
raised the #urisdictional issue, can*t suggest that the 6oard didn*t have #urisdiction in the
narrow sense to enter upon an in8uiry
- Therefore, post-CUP@, there were two clearly articulated standards of review+
a) C!""*#&*ss /("is0i#i!&$% 7"i8- %i&* *s "i7(&$% 1(s B8* i "i8-B
- Jot a deferential standard, so if a court is in the correctness standard, the %deference as
respect% idea doesn*t apply
b) P$*& (&"*$s!&$7%*&*ss $44%i*s ,-*& "i7(&$% is $#i&8 ,i-i& is /("is0i#i!&
"i7(&$% is B*&i%*0 ! *""B
- 9sk if %the 6oard*s interpretation was so patently unreasonable that its construction
cannot be rationally supported by relevant legislation and demands intervention by the
court upon review% ((ickson ) in CUP@)
- Union 1es @mployes 1e Servie v. Bibeault ("9## SCC) (the %5abour Commission shouldn*t
have #urisdiction to consider whether a previous union could represent new #anitors because the
statute doesn*t allow it% case)
- :hile the old case law would hold that interpreting a 6oard*s own statute is a pure 8uestion
of law that must be #udged on a correctness standard, 6eet4 ) adopts a new conte,tual
%pragmatic and functional approach% combined with the idea of %deference as respect%
- Therefore, a court can still intervene if a tribunal steps out of its #urisdiction, but must
;"
consider everything in a big conte,tual picture rather than focusing solely on the te,t
- 7ere, since the answer to %what the legislature intended #urisdiction to be% was that the
legislature didn*t intend for this 6oard to interpret its own enabling statute, the standard of
review was correctness and the assuming of #urisdiction was incorrect
- Therefore, post-Bibeault, there were two ways that a tribunal could %lose% their #urisdiction+
a) T"i7(&$% 1$3*s $& *""!" i&*"4"*i&8 -*i" *&$7%i&8 s$(* i& 0*#i0i&8 ,-*-*" -*)
-$2* /("is0i#i!&
b) T"i7(&$% 1$3*s $ 4$*&%) (&"*$s!&$7%* *""!"
- Hssentially, a tribunal never has the #urisdiction to act patently unreasonably
- ie+ tribunal has #urisdiction to answer K they answer K patently unreasonable
answer therefore the decision is overturned and they lose their #urisdiction
- Fsually, the tribunal will have acted within its #urisdiction in answering the 8uestion, and after
passing this threshold on the correctness standard, begin an analysis into the standard of review
itself in the ne,t section
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III. STANDARD OF REVIEW FOR NON-5URISDICTIONAL 9UESTIONS
1< DOES PRECEDENT ALREADY DETERMINE IN A SATISFACTORY MANNER
THE DEGREE OF DEFERENCE>
- 1unsmuir introduced a new concept of respecting precedent where applicable, so courts must
first %ascertain whether the #urisprudence has already determined in a satisfactory manner the
degree of deference to be accorded to an administrative decision-maker with regard to a particular
category of 8uestion%
- Therefore, there is no need to go through the B-step Pushpanathan test if other precedents have
already dealt with the issue
- F+ unclear what 8ualifies as a %satisfactory manner% so that no standard of review analysis is
needed, but probably need at least ; of the B factors to be answered by precedent to forego the
%standard of review analysis%
- 1f this in8uiry proves unfruitful, analy4e the B factors from Pushpanathan to identify the proper
standard of review
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2< THE PRAGMATIC AND FUNCTIONAL APPROACH TO DETERMINING
LEGISLATIVE INTENT
- Pushpanathan and PeCim+ with the standard of review analysis, the bottom line is determining
what level of deference the legislature intended to give the courts on a particular issue; therefore,
the whole analysis is about construing legislative intent
- Pushpanathan v. Canada ("99# SCC) (the %1 shouldn*t be deported for being arrested for
conspiracy to traffic heroin while on parole because this act didn*t make me *guilty of acts
;/
contrary to FJ principles* case)+
- 6astarache ) creates the B-part Pushpanathan test that is applied when the courts use a
%pragmatic and functional approach% to determining the standard of review
a) P"i2$i2* C%$(s* P"*s*&#* !" $7s*&#* !. $ 4"i2$i2* #%$(s* !" s$(!") "i8- !.
$44*$%
- 9 privative clause is a statutory provision which bars courts from #udicially reviewing
tribunal decisions
- Two main kinds of clauses+
i) Fi&$%i) > ie+ %The decisions of this board under this ct upon all 8uestions of fact
and law are final%
ii) O(s*" > ie+ %The board shall have e,clusive #urisdiction%
- 1unsmuir+ e,istence of a privative clause is a strong indication for reasonableness
standard as it*s evidence of Carliamentary intent to give deference to the tribunal;
however, it*s presence is not determinative
- Chevier+ no matter how strong the privative clause is, it can*t oust #udicial review
entirely
- =trongly worded privative clause may lead to more #udicial deference; weaker ones lead
to other factors considered
- :hile e,pertise can outweigh privative clauses, privative clauses can never outweigh
e,pertise
- Southam+ effect of a statutory appeal provision can be outweighed by the assessment of
e,pertise
- PeCim+ statutory right of appeals undermine privative clauses
- Ba*er+ privative clause indicated less deference, but court indicated that it was only one
of the factors to be considered
- .hosa+ tribunals that don*t have a privative clause but are acting within their area of
e,pertise get deference (like PeCim)
- .hosa+ dissent by 'othstein ) holds that+
i) 1f a court is concerned about legislative intent, privative clauses should be the most
important factor, and courts shouldn*t read in deference where the legislature hasn*t
provided any by not giving the tribunal a privative clause
ii) 6uilds on Charron )*s #udgment in 1unsmuir by holding that when there is a
8uestion of general law and there is no privative clause, the analysis should stop there
and the correctness standard should apply
b) E+4*"is* !. T"i7(&$% T-* *+4*"is* !. -* "i7(&$% "*%$i2* ! -$ !. -* "*2i*,i&8
#!(" !& -* iss(* i& '(*si!&
- :hile Southam claimed that this was the most important factor in determining the
standard of review, 1unsmuir holds that %e,pertise is no longer the most important
factor%
- $enerally, the higher the e,pertise of the tribunal, the more deference it gets; however,
the tribunal e,pertise must always be understood in relation to the e,pertise of the court
- Therefore, do a ;-step analysis to compare the e,pertise of the tribunal to the court+
i) T"i7(&$%:s E+4*"is* > Hither in deciding this K ('rinity <estern) or in answering
K*s of law (+ossop)
ii) C!(":s E+4*"is* > Characteri4e court*s e,pertise as a whole, not as individual
#udges
iii) P$"i#(%$" 9(*si!& > 5ook at specific K and ask who has more e,pertise in
answering this specific K
;.
- Pushpanathan+ courts can use e,pertise to get the final say in the face of a privative
clause
- Southam+ %more economic than legal problems% lead to more deference
- PeCim+ =ecurities Commission received a lot of deference in a comple, field
- .hosa+ e,pertise is not the most important factor, but it is where the analysis should
start
- F+ ; ways that courts evaluate relative e,pertise+
i) 9(*si!&s !. G*&*"$% L$,
- K*s of general law are generally for courts, and courts always answer Charter
challenges
- PeCim+ superintendant able to answer legal %material change% 8uestion
ii) 6!$"0:s #!14!sii!& A%!!3i&8 $ -* *&$7%i&8 s$(*? &! -* i&0i2i0($%
1*17*"s<
- 5ook for security of tenure v at pleasure appointments, tripartite, elected
officials, ectA
- Southam+ ?2; of board were economists, so 8ualifications were influential
- PeCim+ considered whether board had a policy-making role who administers the
regime
- Ba*er+ considered who appointed the members
iii) Is -* s(7/*# 1$*" 4"*0i#i2*>
- This is the most important factor
- 6odies that deal with economic, financial, or technical matters are seen as
having the broadest e,pertise
- ie+ securities commission, international trade tribunals, telecommunication
bodies get deference
- ie+ human rights tribunals and labour boards are seen as relatively weak on legal
8uestions
c) P("4!s* !. S$(!") S#-*1* - T-* 4("4!s*s !. -* %*8is%$i!& $&0 -* 4"!2isi!& i&
4$"i#(%$"
- Southam+ purpose and e,pertise often overlap, as the purpose of a statute is often
indicated by the legislative structure, while the need for e,pertise is often manifested by
the re8uirements of the statute
- The main K here is the polycentric v ad#udicative administrative scheme+
i) M!"* 4!%)#*&"i# $&0 4!%i#)-!"i*&$*0 s#-*1*s 8* 1!"* 0*.*"*&#*
- Colycentric 3 multi-factored balancing of interests, constituencies, and factors
- ie+ labour boards and securities commissions, as they have broad mandates with
comple, policymaking
ii) S!%*%) $0/(0i#$i2* 0*#isi!&s 8* %*ss 0*.*"*&#*
- 9d#udicative 3 competing rights of two parties (traditional #udicial model)
- ie+ decision affects rights of an individual in relation to the gov*t directly
d) N$("* !. -* 9(*si!& - L$,? .$# !" 1i+*0 %$, $&0 .$#
- The greater the precedential impact, the greater the assessment of e,pertise tilts towards
the courts (not determinative)
- Southam+ there are three possibilities+
i) 9(*si!& !. .$# I 1!"* 0*.*"*&#*
- K*s of what actually happened, as if K is highly specific to the case, it will have
little precedential value
ii) 9(*si!& !. 1i+*0 .$# $&0 %$, I 1!"* 0*.*"*&#*
- K*s of what is the answer if given the correct legal test and stated facts
;!
- 6ut see sE. of the A'A, which sets a correctness standard for 8uestions of
mi,ed fact and law
iii) 9(*si!& !. %$, I %*ss 0*.*"*&#*
- K*s of correct legal test and potential to apply widely in terms of precedential
value
- PeCim+ superintendent of brokers had authority to answer what was a %material change%
which was a specific 8uestion of law tied to the e,pertise of the tribunal which would
have little precedential value
- Pushpanathan+ 1'6 didn*t have authority to answer general legal 8uestion of which acts
were %contrary to FJ principles%, and such a 8uestion with high precedential value would
be better answered by a court
- 7ere, 1acobucci ) weighs the factors and decides on a standard of correctness+
i) P"i2$i2* #%$(s* > only partial, as there was a finality but not an ouster clause (ie+ %sole
and e,clusive #urisdiction%)
ii) E+4*"is* > court has greater e,pertise in determining what constitutes acts %contrary
to FJ principles%
iii) S$(!") s#-*1* > 1'6 was more ad#udicative than polycentric
iv) N$("* !. 9 > general legal K with high precedential value
- PeCim v. British Columbia ("99> SCC) (the %1 disclosed *material changes* of negative gold test
results *as soon as possible*, so 1 shouldn*t be prosecuted for insider trading by the 6C =ecurities
Commission% case)
- 7ere, 1acobucci ) weighs the factors and decides on a standard of reasonableness
simpliiter+
i) P"i2$i2* #%$(s* > automatic right of appeal and no privative clause indicates less
deference, but not determinative
ii) E+4*"is* > =ecurities Commission receives a lot of deference for dealing with
economic and financial matters
iii) S$(!") s#-*1* > Seurities At sets out large, comple, polycentric scheme with
power to make policy
iv) N$("* !. 9 > definition of *material change* is a pure K of law but falls s8uarely
within tribunal*s e,pertise
- Therefore, an absence of a privative clause and a statutory right of appeal may still lead to
deference (ie+ reasonableness standard) if an e,pert tribunal is answering a general 8uestion
of law within their field of e,pertise
- Canada v. Southam ("99% SCC) (the %we shouldn*t be prosecuted by the Competition Tribunal
for buying up all of Oancouver*s community newspapers, as the markets for mass media papers
and community papers weren*t the same% case)
- 7ere, 1acobucci ) (yet again) weighs the factors and decides on a standard of
reasonableness simpliiter+
i) P"i2$i2* #%$(s* > statutory right of appeal and no privative clause indicates less
deference, but not determinative
ii) E+4*"is* > most important factor here, as tribunal had e,pertise in matters of
economics and commerce
iii) S$(!") s#-*1* > purpose to promote competition, which was more economic
policy than law, so more deference
iv) N$("* !. 9 > K of whether the markets were the same was mi,ed fact and law, so
BG
more deference
- Therefore, post-Southam and pre-1unsmuir, there are ; standards of review from -!!/-?GG.+
a) %C!""*#&*ss% is about substituting the court*s right answer for the decision of the tribunal
b) %P$*& (&"*$s!&$7%*&*ss% is about #udicial restraint and not substituting the court*s
#udgment for the tribunal*s so long as it was reasonable
c) %R*$s!&$7%*&*ss si14%i#i*"% is about looking at a somewhat probing e,amination of the
tribunal*s reasoning as asks if there is a basic #ustification for reasons that underlies the
decision
- Jote the analysis is different than procedural fairness under Ba*er, as in Ba*er, once you get
procedural fairness, there*s a spectrum of fairness you might be entitled to; however, after
Southam, there*s three buckets of standard of review that has no sliding scale
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@< STANDARDS OF REVIEW
A< CORRECTNESS
- 1unsmuir+ standard is unchanged from past #urisprudence, as it*s still a de novo review
- 1unsmuir+ when applying the correctness standard in respect of #urisdictional and some other
8uestions of law, a reviewing court will not show deference to the decision makerPs reasoning
process; instead, it will rather undertake its own analysis of the 8uestion and decide whether it
agrees with the determination of the decision maker
- &yanD if the court doesn*t agree that the tribunal %got it right%, it will not be %entitled to err% and
the court will substitute its own view and provide the correct answer
- )ustification+ the court, through a pragmatic and functional analysis, deems itself best placed to
resolve the matter under review, and is free to revisit the decision originally put to the
administrative decision-maker as it sees fit
- 1unsmuir+ values underlying correctness include+
a) Consistency, uniformity, predictability, stability
b) 'ight answer and #udicial e,pertise
c) Jo deference to other reasoning
d) 'ule of law and uni8ue role of the courts
- :hile a case-specific pragmatic and functional analysis is always re8uired to determine the
standard of review, and correctness is always used on #urisdictional 8uestions, a correctness
standard will also apply in determining+
a) Bibeault+ #urisdictionAie+ #urisdictional scope of different tribunals, such as tribunal v
tribunal battle
b) 1unsmuir+ resurrects #urisdiction and says correctness is for %true 8uestions of vires%
c) ,aFontaine+ municipalitiesAie+ whether non-ad#udicative decisions of municipal decision-
makers are ultra vires
d) +ossop+ K*s of law that are not within what the legislature intended to be within the
e,pertise of tribunal (ie+ human rights)
e) Crocedural fairness (but in doubt after Ba*er)
B-
f) Bibeault+ background common law or civil law concepts (ie+ meaning of %alienation% and
%undertaking%)
g) Pushpanathan+ 8uestions of %pure law%, %general law%, or law of %great precedential value%
- Union 1es @mployes 1e Servie v. Bibeault ("9## SCC) (the %did accepting replacement
workers fit the criterion of %alienation% of an %undertaking% under the successor provisions of the
2uebe ,abour Code% case)
- 9+ did the legislature intend for this 8uestion to be within the #urisdiction of this tribunal0 1f
yes, decision will not be set aside unless decision was patently unreasonable; if no, can*t
allow two different tribunals to proceed on the same issue, so correctness
- 7ere, through a pragmatic and functional analysis, 6eet4 ) applies the correctness standard
because the Kuebec 5abour 'elations 6oard erred in deciding they had #urisdiction to answer
the 8uestion
- Canada v. +ossop ("993 SCC) (the %*family status* should apply to same-se, families because 1
want to get bereavement leave to attend my same-se, partner*s father*s funeral as an *immediate
family* member% case)
- <or 5amer ) and the ma#ority, 8uestion of law N no privative clause N lack of relevant
e,pertise 3 correctness, as human rights tribunals were seen as e,perts in fact-finding only,
not in law
- Therefore, absent a Charter challenge (which @ossop declined to make), the legislative
intent was clear and she got no leave
- <or 5*7eureu,-(ube ) in dissent, fle,ibility N deference N conte,tual approach 3 patent
unreasonableness, as the Charter shouldn*t be ignored simply because there*s no Charter
challenge and determining enumerated grounds is in 7'T*s e,pertise
- 9+ do the ma#ority #udgments by 5amer and 5a <orest )) protect minority rights more than
5*7eureu, (ube )0 (oes a correctness standard for human rights decisions mean that courts
will protect human rights more because they are more willing to overturn a tribunal*s
incorrect decision even if it is perfectly reasonable0
- 'rinity <estern University v. BC College of 'eahers (200" SCC) (the %6C College of
Teachers, in the *public interest*, won*t recogni4e our graduates because we think homose,uality
is a *biblically condemned practice*0 &utrageousQ% case)
- 9fter determining that the K was in the #urisdiction of the tribunal, @c5achlin ) determines
correctness as the standard+
a) P"i2$i2* #%$(s* > none, plus statutory right of appeal
b) E+4*"is* > tribunal had no e,pertise in human rights 8uestions
c) S$(!") s#-*1* > policymaking role sub#ect to Cabinet approval
d) N$("* !. 9 > 8uestion of law on a human rights issue
______________________________________________________________________________
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6< REASONA6LENESS SIM&LICITR ABREASONA6LENESSB<
B?
- 1acobucci ) in Southam+ %9n unreasonable decision is one that, in the main, is not supported by
any reasons that can stand up to a somewhat probing e,amination%
- Southam+ therefore, reasons without logical coherence and for which there is no logical or
evidentiary underpinning will produce unreasonable decisions
- 6astarache ) in 1unsmuir+ notwithstanding theoretical differences between standards of patent
unreasonableness and reasonableness simpliiter, any actual difference between them in terms of
their operation appears to be illusory; therefore, both are now combined into one standard of
review+ "*$s!&$7%*&*ss
- 1unsmuir+ %'easonableness is concerned mostly with+
a) the e,istence of #ustification, transparency and intelligibility within the decision-making
process, and
b) whether the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of facts and law%
- 1unsmuir+ it is a deferential standard which re8uires respect for the legislative choices to leave
some matters in the hands of administrative decision makers, for the processes and
determinations that draw on particular e,pertise and e,periences, and for the different roles of the
courts and administrative bodies within the Canadian constitutional system
- 1unsmuir+ as there is now a bright-line test to determine the standard of review between
reasonableness and correctness, a reasonableness standard will apply when+
a) CUP@+ privative clause, as it speaks to legislative intent (but still not completely
determinative)
b) Southam+ 8uestions of mi,ed law and fact, fact, discretion, and policy (anything other than
8uestions of law)
c) PeCim+ administrative decision-maker is interpreting their own statute
d) PeCim+ 8uestion before tribunal goes to the core of their e,pertise or regulatory function
- 1n PeCim, there was reasonableness simpliiter because (-) e,pert tribunal, (?) no privative
clause, (;) statutory right of appeal, and (B) 8uestion of law within the tribunal*s e,pertise
- 1n Southam, there was reasonableness simpliiter because (-) e,pert tribunal, (?) no privative
clause, (;) statutory right of appeal,
(B) 8uestion of mi,ed law and fact, and (E) more economic than legal problem
- 1n 1unsmuir, there was reasonableness because (-) full privative clause, (?) labour nature of
regime, (;) not a 8uestion of central importance with little precedential value, (B) 8uestion of law
______________________________________________________________________________
______________________________
C< PATENT UNREASONA6LENESS
- (ickson ) in Southam+ - %The difference between %unreasonable% and %patently unreasonable%
lies in the immediacy or obviousness of the defect 1f the defect is apparent on the face of the
tribunal*s reasons, then the tribunal*s decision is patently unreasonable 6ut if it takes some
significant searching or testing to find the defect, then the decision is unreasonable but not
patently unreasonable%
- H,amples+ acting in bad faith, basing decision on e,traneous matters, failing to take relevant
B;
factors into account, breaching the rules of natural #ustice, misinterpreting the provisions of the
9ct
- 6innie ) in 1unsmuir+ this distinction between patent unreasonableness and reasonableness
simpliiter is to be abandoned, as it was unproductive and distracting in hindsight
- F+ with past case law with three standards of review, it is unclear how to handle the precedents;
however, the best guess is that past patent unreasonableness cases would fall under the standard
of reasonableness today
- 5e6el ) in 'oronto v. CUP@D in trying to establish a boundary between patent unreasonableness
and reasonableness simpliiter and failing to find one, he holds that %in the end, the essential
8uestion remains the same under both standards+ was the decision of the ad#udicator taken in
accordance with reason%0
- CUP@ (2003)+ one #udge may see a 8uestion of fact, while another may see a 8uestion of law;
admin law is all up in the air
- CUP@ v. 9e8 Bruns8i* ,i4uor Corp ("9%9 SCC) (the %s-G?(;)(a) of the Publi Servie
,abour &elations At shouldn*t prevent replacement workers and the 6oard didn*t have
#urisdiction to interpret the *with any other employee* wording% case)
- (ickson ) establishes the patent unreasonableness standard by granting new respect for
tribunals, a standard that is based on immediacy or obviousness of the defect
- Catent unreasonableness standard applied because (-) e,pert tribunal, (?) clear privative
clause, (;) ambiguous and poorly drafted statutory wording on #urisdiction, so the tribunal is
%entitled to err%
- 9ational Corn ?ro8ers v. Canada ("990 SCC) (the %Canadian 1mport Tribunal*s decision to
determine potential *material in#ury* to Canada on subsidi4ing grain imports should be overturned
because it was patently unreasonable% case)
- :ilson ) in concurring reasons, disagreed on the %depth of probing%, as she holds that %to
embark upon a detailed analysis of the e,tent to which the evidence will support the
Tribunal*s finding in the face of a privative clause is to engage in the very kind of meticulous
analysis of the Tribunal*s reasons that CUP@ made clear courts should not conduct% (ie+ it*s
not correctness)
- 7owever, $onthier ) for the ma#ority says that patent unreasonableness is not limited to
statutory interpretation, but a CF analysis can review of 8uestions of fact
- 1n reviewing K*s of fact, evaluating evidence, and mi,ed law and fact, the court must
e,amine the record to determine whether the standard of %no evidence% is met; therefore, the
reviewing court is not to determine the correct answer with which to compare the Tribunal*s
decision in order to determine the reasonableness of it
- 7ere, according to $onthier ), the standard under which the decision can be reviewed is
one of patent unreasonableness, and the Tribunal could indeed consider the issue of potential
in#ury because the e,istence of a privative clause was sufficient to accord the Tribunal
deference in review
BB
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______________________________
4< STATUTORY DETERMINATION STANDARD OF REVIEW WHERE THE ATA
APPLIES TO THE TRI6UNAL
- The A'A attempts the close the door on #udicial review as much as possible, so always check to
see whether the tribunal in 8uestion is affected by ssE. and E!
- Crocess for applying the A'A to a problem+
a) D!*s ATA $44%)>
- <or e,am purposes, probably yesAonly 6C self-regulated professions or federal boards
get off
b) L!!3 $ *&$7%i&8 s$(*
- (oes sE. or sE! apply because of presence2absence of a privative clause0
c) W-$ 3i&0 !. '(*si!& is i>
- Catent unreasonableness if it*s a discretionary decision within the #urisdiction of the
tribunal
- The statute also defines what defines patent unreasonableness
- Correctness if there is no privative clause or if it*s a 8uestion of law outside of the
e,pertise of the tribunal
- There are ; important sections in this respect+
a) s.EG Ti1* %i1i #%$(s*
- $ives "G days to file a motion for #udicial review
- Creates finality; limits scope of #udicial review, and allows the tribunal to accept the
decision as final
b) s.EC S$&0$"0 !. "*2i*, .!" "i7(&$%s ,i- $ 4"i2$i2* #%$(s*
- 1f there is a privative clause, then the tribunal is considered to be an e,pert tribunal in
relation to all matters over which it has e,clusive #urisdiction; this also eliminates the
%strong v weak privative clause% discussion
- The default standard is correctnessAso ask+
- (id the tribunal have the #urisdiction to answer the 8uestion0
- 1s the 8uestion of mi,ed fact and law within the tribunal*s e,clusive #urisdiction (ie+
their area of e,pertise)0
- 1f yes to these K*s, then go to patent unreasonableness
- 1f no, then correctness (different than C5 )' because default for 8uestions of
mi,ed fact and law was reasonableness)
- H,ceptions include+
- Kuestions of fact 3 patent unreasonableness
- Kuestions of law 3 patent unreasonableness
- (iscretionary decisions 3 patent unreasonableness
- Crocedural fairness2natural #ustice 3 did the tribunal act fairly0 (no other standard)
- =ections E.(?)(a) and E.(;) define how a patently unreasonable discretionary
decision is defined
- H,ception+ if the tribunal did not have e,clusive #urisdiction over the matter, then
standard is correctness
c) s.EH S$&0$"0 !. "*2i*, .!" "i7(&$%s ,i-!( $ 4"i2$i2* #%$(s*
- (efault standard is correctness
- H,ceptions+
- Kuestions of fact 3 reasonableness
BE
- (iscretionary decisions 3 patent unreasonableness
- Crocedural fairness2natural #ustice 3 did the tribunal act fairly0
- 9s defined by sE.(;) and sE!(B), discretionary decisions which are patently unreasonable
under the A'A are those that are+
a) H,ercised arbitrarily or in bad faith
b) <or an improper purpose
c) 6ased entirely or predominantly on irrelevant factors
d) <ail to take statutory re8uirements into account
- .hosa (2009 SCC)+ according to the ma#ority, the standard of patent unreasonableness is alive
and well in 6C because the A'A statutorily entrenched patent unreasonableness as a standard
______________________________________________________________________________
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PART SID THE C$ARTR AND ADMINISTRATIVE LAW
I. DISCRETION AND THE CONSTITUTION
- 1unsmuir+ )' should be less concerned with the formulation of different standards of review
and more focused on substance, particularly on the nature of the issue that was before the
administrative tribunal under review
- 9+ if there*s a Charter issue embedded in your problem (ie+ +ossop), how does it differ from
normal )'0 Can administrative tribunals making decisions involving Charter interests use a
Charter analysis, or should they be restricted to using administrative law principles as outlined in
Pushpanathan;s pragmatic and functional approach0
- There have been ; frameworks used to address this problem+
a) O"-!0!+ $44"!$#- $0!4*0 7) Di#3s!& 5. i& Slaight $&0 C-$""!& 5. i& Multani
- Can only apply the Charter because it allows the tribunal to deal with conflicting values
- Slaight+ this re8uires a ?-step framework +
i) (oes the impugned decision infringe a Charter right0
ii) Can the infringement be saved under s- as a reasonable limit prescribed by law
and demonstrably #ustified in a free and democratic society0 (ie+ use /a*es rational
connection, minimal impairment, and cost2benefit analysis)
- Can still use administrative law principles to review K*s of #urisdiction, fact, and
application of law to facts, or if the complainant fails to establish prima faie
infringement of a discrete Charter right
b) Mi+*0 $44"!$#- $0!4*0 7) L$1*" 5. i& Slaight
- Court must e,amine the decision and review it under administrative law principles first
(ie+ ultra vires, unreasonable, ect)
- 1f, and only if, the authority granted by legislation is consistent with the decision, you
then apply the Charter framework
- Slaight+ this re8uires a ?-step framework+
i) 9pply administrative framework
ii) 1f the decision survives the preceding analysis, apply the Charter framework
c) A01i&is"$i2* %$, $44"!$#- $0!4*0 7) D*s#-$14s $&0 A7*%%$ 55. #!&#(""i&8 i&
Multani
- Court disregards review under the Charter and limits scrutiny to e,clusively that which
is available as a matter of administrative law
B"
- Colicy for both approaches+
a) W-) "i7(&$%s s-!(%0 &! 7* $%%!,*0 ! $&s,*" #!&si(i!&$% '(*si!&s Ai*=
D*s#-$14s $&0 A7*%%$ 55.<
i) E..i#i*&#) > Charter litigation is comple, and e,pensive, and it*s better to hold a
hearing on the presumption that the law is constitutional and seek )' later
ii) C!&sis*&#) > courts should avoid #udicial bifurcation by simply having the courts
consider constitutional 8uestions, as allowing tribunals to consider constitutional K*s
could lead to inconsistency
- Kuestionable, as all tribunals look at past decisions to determine inconsistency, and
assumes #udges know more
iii) S(4"*1$#) !. -* Charter > if the constitution is so important, efficiency should not
override it
iv) L$#3 !. i&0*4*&0*&#* .!" "i7(&$%s > tribunals are an arm of gov*t, so allowing
them to decide whether their statutes are constitutionally invalid would be un#ust
b) W-) "i7(&$%s s-!(%0 7* $%%!,*0 ! $&s,*" #!&si(i!&$% '(*si!&s Ai*= Di#3s!& $&0
C-$""!& 55.<
i) E+*#(i2* 0i#$!"s-i4 > A'A allows the e,ecutive to dictate when and where
constitutional 8uestions will be considered, which in and of itself might be
unconstitutional
ii) A##!(&$7i%i) > only rich people get the benefit of the courts, while poor people get
uneducated tribunals
iii) I&*..i#i*&#) > not efficient for people to have to sit through moot hearings when they
know that they*ll challenge constitutionality later (sBB tribunals), so it*s 8uicker at the
tribunal level to have Charter rights considered there
iv) E+4*&s* > not everyone can afford )' simply because a law is unconstitutional, as
well as standing, money, time, and comple,ity issues; A'A only allows rich powerful
parties to argue constitutional issues at the 5abour and =ecurities 6oards
v) I14!"$&#* !. -* Charter - the Charter is not a holy grail (@c5achlan ) in Cooper)
so it should be debated at all levels of society, including administrative tribunals; the
A'A doesn*t reflect the polycentric modern rule of law
- Slaight Communiations v. 1avidson ("9#9 SCC) (the %you can*t impose *positive* and *negative*
orders on us as a remedy for un#ust dismissal because it infringed our s?(b) freedom of speech
rights% case)
- 6oth #udgments agree that the Charter applies, the positive order to right a reference letter
infringed =laight*s s?(b) right, but this violation was saved by s-; however, they disagree on
the gag order
- (ickson ) takes an orthodo, approach, concluding that the gag order was saved by s-+
(surviving #udgment post-Slaight)
a) Charter "i8- i&."i&8*0> > yes
b) S$2*0 (&0*" s.1> > yes, as orders were rationally connected to the purpose of
remedying ine8uality of bargaining power
- 5amer ) takes a mi,ed approach, concluding the gag order was patently unreasonable
because it e,ceeded board*s #urisdiction
a) A44%) $01i& %$, ."$1*,!"3 > decision was %totalitarian% because recipient would
impute opinions =laight didn*t hold
b) Charter Ai&."i&8*1*& $&0 s.1< > gag order was unreasonable and didn*t need to do a
B/
Charter analysis
- +ultani v. Commission Solaire (200$ SCC) (the %school*s order prohibiting my =ikh child from
wearing a kirpan2sword to school violated s?(a) freedom of religion or s-E e8uality rights% case)
- 6oth #udgments agree that the Charter applies and that the infringement couldn*t be saved
by s-
- Charron ) takes an orthodo, approach+
a) Charter "i8- i&."i&8*0> > yesAfocus was on @ultani*s Charter rights, not on
whether school had #urisdiction to make the rule banning the kirpan; council of
commissioners is a creature of statute and was bound by the Charter
b) S$2*0 (&0*" s.1> > no, as while ob#ective was reasonable (school safety) and banning
weapons was rationally connected to that ob#ective, it was not proportional (ie+ could sew
it into clothes)
- (eschamps and 9bella )) take a strict administrative law approach
- 'eview of admin decision under s- impermissible because it*s inconsistent with rights-
limiting portion of <rench s- te,t
- 'eal issue was whether the law banning the kirpan was reasonable, and they conclude
that it was unreasonable based on the evidence (ie+ sewing it into clothes, other ob#ects
commonly could be weapons, ectA)
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II. AGENCY 5URISDICTION OVER THE C$ARTR
1< INTRODUCTION
- 1t is a principle of statutory interpretation that administrative tribunals and courts alike should
try to interpret legislation in light of the Charter and Charter values
- 9+ do admin agencies, as creatures of statute, have the authority to interpret and apply the
Charter to their enabling legislation for the purpose of refusing to give effect to provisions found
to violate the Charter0
- The standard of review is correctness when a tribunal is+
a) (eciding whether they have the #urisdiction to answer a constitutional 8uestion, and
b) 9nswering a 8uestion on the constitutional validity of their enabling statute
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2< STATUTORY DETERMINATION OF WHETHER THE TRI6UNAL HAS
5URISDICITON TO ANSWER CONSTITUITONAL 9UESTIONS
- The 6C A'A is clear legislative intent that administrative tribunals should not be considering
constitutional 8uestions
- Therefore, if a tribunal has a section %to consider 8uestions of law%, but also has a section that
says sBB of the A'A applies, sBB is clear legislative intent2rebuttal of any presumption that the
tribunal has e,press or implied authority to consider constitutional K*s
B.
- Fnder s-, %constitutional 8uestion% means any 8uestion that re8uires notice to be given under
s. of the Constitutional 2uestion At
- The A'A divides tribunals into ; categories in terms of whether they can consider constitutional
8uestions+
a) s.4@ T"i7(&$%s ,-i#- -$2* -* 4!,*" ! #!&si0*" #!&si(i!&$% '(*si!&s
- sB;(-)+ %The tribunal has #urisdiction to determine all 8uestions of fact, law or
discretion that arise in any matter before it, including constitutional 8uestions%
- sB;(?)+ %1f a 8uestion of law, including a constitutional 8uestion, is raised by a party in
a tribunal proceeding, on the re8uest of a party or on its own initiative, at any stage of an
application the tribunal may refer that 8uestion to the court in the form of a stated case%
- This applies to 5abour 'elations 6oard and =ecurities Commission (as they have
permanent legal counsel and all parties can afford to e,haustively litigate constitutional
8uestions)
b) s.44 T"i7(&$%s ,i-!( /("is0i#i!& !2*" #!&si(i!&$% '(*si!&s A$%1!s $%% 6C
"i7(&$%s<
- sBB(-)+ %The tribunal does not have #urisdiction over constitutional 8uestions%
- 9fter looking to the enabling statute and seeing which sections of the A'A apply, most
6C statutes will say sBB applies and they are denied #urisdiction over constitutional
issues (e,cept for sB; or sBE tribunals)
- These tribunals operate on the presumption that their statute is constitutionally valid;
after a decision by the tribunal, parties can challenge the constitutionality of provisions in
the enabling statute at the )' stage
c) s.4E T"i7(&$%s #$& #!&si0*" #!&si(i!&$% 9:s 7( ,i-!( /("is0i#i!& !2*" Charter
iss(*s
- sBE(-)+ %The tribunal does not have #urisdiction over constitutional 8uestions relating to
the Canadian Charter of 'ights and <reedoms%
- These relate to federalism issuesAie+ whether provinces or feds have #urisdiction
- 9pplies to ; tribunals+ Hmployment =tandards 6oard, 7uman 'ights, and Jatural
Croducts @arketing 6oard
- Cros and cons of taking constitutional authority2#urisdiction away from the tribunals+
a) P"!s
i) T"i7(&$%s #"*$*0 ! i14%*1*& 8!2: 4!%i#) > illogical that legislature would create
an enabling statute that may be unconstitutional and give the tribunal the tools to decline
to apply the unconstitutional enabling statute
ii) U&0*"1i&*s $01i&is"$i2* /(si#* 8!$%s > ie+ timelines, accessibility, sub#ect matter
e,pertise, efficiency, as ribunals have e,pertise in specific areas, not in general areas like
constitutional issues
iii) L$) %ii8$&s i%%-*'(i44*0 - purpose of tribunals is to resolve disputes 8uickly, not
bog down in Charter arguments, and must be careful that the Charter doesn*t get used as
obstructionist arguments for employers with deep pockets
iv) D$&8*" !. i&#!&sis*&? &!&-7i&0i&8 0*#isi!&s !& #!&si(i!&$% iss(*s
v) E..i#i*&#) > with correctness standards, admin constitutional law K*s will eventually
be re-litigated in courts anyways
b) C!&s
i) A##*ss ! /(si#* #!&#*"&s > massive barriers in complaints involving procedural,
human rights, and Charter issues
ii) Charter s-!(%0 7* $##*ssi7%* > Charter isn*t a %holy grail% and should apply to
everybody regardless of the forum
B!
iii) A%*"&$i2* s!%(i!&s $2$i%$7%* > there are ways of giving litigants more resources in
making Charter challenges
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______________________________
@< COMMON LAW DETERMINATION OF WHETHER TRI6UNALS HAVE
5URISDICTION TO ANSWER CONSTITUTIONAL 9UESTIONS
- 1n an old trilogy of cases (1ouglasE.8antlen! Cuddy Chi*s! and 'etreault=?adoury), 5a <orest
) held that tribunals had the power to interpret law and that the tribunal2agency must apply the
Charter to its enabling statute; however, the%power to interpret law% was narrowly applied and
tribunals could only refuse to give effect to constitutionally invalid provisions under sE?(-), as
striking them down was a power reserved to courts
- 9ova Sotia (<CB) v. +artin (2003 SCC) (the %:C6 denying me benefits beyond a B-week
period for workplace in#ury-related chronic pain violated my s-E(-) e8uality rights, and this
limiting provision in the <CA should be declared invalid% case)
- 9dministrative tribunals which have #urisdiction, e,plicit or implied, to decide 8uestions of
law arising from a legislative provision are presumed to have #urisdiction to decide the
constitutional validity of that provision (no %general% v %limited% 8uestions of law anymore)
- $onthier ) sets up a ?-part test to determine whether tribunals have authority to answer
constitutional 8uestions+
a) D!*s -* "i7(&$% -$2* e*press !" implie( $(-!"i) ! #!&si0*" '(*si!&s !. %$,>
- This can be e,plicit (in enabling statute terms) or implicit #urisdiction (statute as a
whole with factors)+
i) S$(!") s#-*1*+ must tribunal answer all 8uestions of law to function
effectively0
ii) S$(!") 1$&0$*+ does the statute allow the tribunal to answer 8uestions of
law0
iii) I&*"$#i!& ,i- !-*" $01i& *%*1*&s+ does tribunal operate in sync with
another tribunal0
iv) F(&#i!& !. "i7(&$%+ policy or ad#udicative0
v) P"$#i#$% #!&si0*"$i!&s+ ie+ capacity of members, backlog of files, ectA
- 1f there is implied #urisdiction, there is a rebuttable presumption that the tribunal has
Charter #urisdiction
b) C$& -* 4"*s(14i!& 7* "*7(*0 -$ -* "i7(&$% #$& #!&si0*" #!&si(i!&$%
'(*si!&s>
- The party opposing this can rebut the presumption by either showing that+
i) E+4%i#i+ there is e,plicit withdrawal of the authority by the legislature, or
ii) I14%i#i+ demonstrate that the statutory scheme points to an intention to
e,clude the authority
- 7ere, there was both e,press and implied authority (do both on an e,am) (:C6 is
ad#udicative, practical backlog concerns didn*t trump legislative intent), and presumption was
not rebutted
- The decision was upheld on a standard of correctness, so the <CB provision infringed the
claimants s-E e8uality rights
EG
- N!*+ in 6C, under sBB of the A'A, practitioners appearing before the <CB wouldn*t be able to
argue Charter issues
______________________________________________________________________________
______________________________
III. FURTHER ADMI'ISTRATI, TRIB-'ALS ACT ISSUES
- P"!#*ss+ must look to enabling statute of the agency and compare it to the overarching A'A
- =ome statutes have an %application of A'A to commission% section that specifies which
specific sections of the 9ct to understand which provisions of the A'A apply to which
specific sections
- Jote that the A'A doesn*t apply federally (ie+ immigration board) or to self-regulated
professions (ie+ law society)
- F+ Fncontroversial aspects of the A'A+
a) M*"i-7$s*0 $44!i&1*&
- @ost people %agree% that merit-based is better than at-pleasure or patronage
appointments to limit political influence
b) S$&0$"0iJ*0 4"!#*ss*s
- ie+ written notice in the same form for all tribunals under the A'A
c) Gi2*s "i7(&$%s 1!"* #!&"!% !2*" -*i" !,& 4"!#*ss*s s.11
- ie+ can enter default #udgment, can perform contempt orders, ectAbut must have
assistance of the court in enforcing any default #udgment ordered
- 5ess e,pensive when tribunals have more power to make meaningful orders and not
have to go to court so often
- F+ Controversial aspects of the A'A+
$< 5("is0i#i!& !2*" #!&si(i!&$%;Charter;-(1$& "i8-s iss(*s ss.4@-4F
- 1f sB; applies to the tribunal, it has discretion to consider Charter or human rights
issues; not under ssBB-BE
- ssB"--B"; limit discretion of a tribunal to apply the 0uman &ights Code before it, and
sB"- can be a nightmare for counsel because they will be unsure if the tribunal will use
their discretion to decline #urisdiction to apply the 0&C
- ie+ if labour standards review board can*t consider human rights 8uestions, it*s ridiculous
for the person standing before the tribunalAmay have to go to labour board, human
rights board, or court
b) F0-0$) i1* %i1i .!" /(0i#i$% "*2i*, s.EG
- Jormal minimum under the ,imitations At is ? yearsA? months is really short
- :hile sE/(?) can give #udge discretion to grant e,tension, it*s rarely given and
administrative #ustice is about certainty, not uncertainty
c) S$&0$"0 !. "*2i*, #!0i.i#$i!&s ss.EC-EH
- Hither sE. or sE! apply depending on whether the enabling statute contains a privative
clause or not
- Fnder sE., where a tribunal has particular e,pertise, standard is patent
unreasonableness for facts2law within their #urisdiction; standard is correctness for other
matters
- 1f there is a discretionary decision under sE.(?)(a), sE.(;) defines what is a patently
unreasonable discretionary decision
E-
- 9+ does the A'A oust the common law, such as patent unreasonableness under the A'A, or do
common law ideas of reasonableness from 1unsmuir import into the A'A0 ? views from .hosa
in obiter, so it*s still an open 8uestion+
a) 6i&&i* 5. C!11!& %$, i&.%(*&#*s ATA
- 1n 1unsmuir, 6innie ) in his concurring reasons held that reasonableness is a %single
standard coloured by conte,t%; therefore, the common law in#ects ideas of fle,ibility,
conte,t, and nuance into the language of the statute
b) R!-s*i& 5. C%*$" %*8is%$i2* i&*& !. ATA !(ss #!11!& %$,
- :hile courts can use the common law to define a term not used in the statute, if a
statute clearly uses administrative law language (ie+ patent unreasonableness in the A'A),
this is clear legislative intent to oust the common law
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PART SEVEN DISCRETION
- 5*7eureu,-(ube in Ba*er+ %The concept of discretion refers to decisions where the law does not
dictate a specific outcome, or where the decision maker is given a choice of options within a
statutorily imposed set of boundaries%
- H,amples+ %at one*s discretion%, %at pleasure%, %at your command%, %at your mercy%
- Therefore, discretion is the e,plicit legal power granted to a tribunal to choose a course of
action from a range of permissible options, including the option of inaction
- 9+ how do these unlimited delegated e,ecutive powers fit in with the concept of the rule of law0
- &onarelli v. 1uplessis ("959 SCC) (the %you cancelled my li8uor licence arbitrarily to punish
me for helping ):, even though the 9ct allowed *the commission to cancel any permit at its
discretion*% case)
- Two diametrically opposed positions regarding the court*s role in e,amining administrative
discretion during #udicial review+
a) R$&0 5. M$/!"i) E2*& i& (&.**"*0 0is#"*i!&$") 0*#isi!&s? i14%i*0 %i1is
si%% *+is
- <or discretion to be legally e,ercised, it had to pursue legitimate purposes and take
into account the situation of the individual affected by the decision
- 7ere, revoking the licence based on irrelevant considerations that causes significant
conse8uences on the licence holder went beyond the scope of discretion of (uplessis
(who had no immunity as Cremier)
- %Fnwritten% principle of the rule of law means e8uality before the law and this
constrains actions of public officials
b) C$","i8- 5. Diss*& U&%i1i*0 0*%*8$*0 *+*#(i2* 4!,*"s &! s(7/*# !
%*8$% #!&"!% i. ,i-i& s$(*
- =ince there was no guidance or rules e,pressly or implicitly in the statute, the
administrative decision-maker had unlimited discretion and became %a law unto
itself%
- $rounds of review for arguing that an abuse of discretion was unreasonable, even outside the
discretionary conte,t+
E?
a) Fnauthori4ed purpose and2or improper considerations
b) 6ad faith
c) 9cting under dictation or influence
d) :rongful delegation of powers
e) <ettering of discretion
f) Fnreasonableness on its face or on the evidence
- F+ sE.(;) of the 6C A'A states that when dealing with a discretionary decision, there are B
factors that make a decision patently unreasonable; therefore, if there*s a provincially-created
tribunal to which the A'A applies, and there is a discretionary decision that is at issue, must look
to the B factors that relate to these grounds of review
- Jote that in Ba*er, 5*7eureu,-(ube ) adopts 'and )*s analysis in 1uplessis and confirms that
there is no strict dichotomy between discretionary and non-discretionary decisions; therefore, the
standard of review of discretionary decisions is best approached within the framework of the
*pragmatic and functional* approach during the standard of review analysis
- &n approach, there*s ? ways+
a) Ba*er > weighed E factors after deciding on a reasonableness standard under special
circumstances regarding discretion, international obligations, and @inisterial guidelines, and
concluded @inister didn*t give %serious weight and considerations to the interests of the
children%
b) Suresh > Ba*er doesn*t authori4e courts reviewing decisions on the discretionary end of the
spectrum to engage in a new weighing process; instead, must limit to only weighing relevant
considerations; therefore, while the @inister had discretion he was wrong because he went
against their own @inisterial guidelines, not because they didn*t give *%serious weight% to the
rights of the child
- Therefore, post-Suresh, when considering whether the tribunal abused its discretion, do a ?-part
analysis+
a) L*8is%$i2* i&*& > what is the intention of the legislature in creating the tribunal0 (oes
the decision further its mandate0
b) R*%*2$&#* > in making the decision, did the tribunal consider all the relevant factors0
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PART EIGHT RULE-MAKING
I. INTRODUCTION
- 'egulations and guidelines are forms of delegated legislation developed by the e,ecutive branch
of government that typically do not set general government policy as statutes do, but rather
e,plain how statutes will work; they can be broken into ? broad categories+
a) R*8(%$i!&s
- 5egally binding re8uirements that must arise from a statutory power
- ie+ rules, regulations, bylaws, orders-in-council, ectA
b) S!. L$,
- :hile developed by the e,ecutive, these guidelines are not legally binding and power
doesn*t come from a statute
- ie+ tribunal guidelines, policy statements, interpretive bulletins, ectA
E;
- Ba*er+ soft law can impact lives, as @inister-issued guidelines setting out the bases on which
immigration officers should decide whether an individual deserved 7 M C consideration, and
these were important for 5*7eureu,-(ube ) in deciding the limits on the discretion to be
e,ercised under the federal -mmigration At
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II. CONTROLLING THE RISKS OF DELEGATION
1< SU6STANTIVE 5UDICIAL REVIEW
- The main problem inherent in delegation is the principle-agent problem, which has ?
dimensions+
a) Dis#!&&*#
- The party making the rules2soft law (the %agent%) is not following the wishes of the
legislature (the %principle%)
b) P(7%i# $##!(&$7i%i)
- 5egislature or party making the rules2soft law (either of which could be termed the
%agent%) may not be respecting the wishes of the ultimate principal > the public
- ie+ maybe the agent will read the statute in its own une,pected way or act in self-interest
- ie+ agency capture when the agent is being %bought% by particular public-interest groups
- 9+ what role do courts play in supervising the substantive content of the rules and in keeping the
parties making rules2soft law (ie+ the %agent%) within the bounds of the power delegated to it by
the legislature (the %principle%)0
- 'horne;s 0ard8are v. Canada ("9#3 SCC) (the %this order-in-council e,tending the limits of the
port to include our facilities is either invalid or inapplicable, and the bylaw imposing a tariff is
also inapplicable to us% case)
- Courts will only review an order-in-council if it is outside the #urisdiction of Cabinet or
made in bad faith, and will not+
a) 'eview the validity of an &1C simply on matters of public convenience and general
policy
b) 1nvestigate the motives behind an &1C based on economic policy
- 7ere, the &1C was within the #urisdiction of Cabinet to rationali4e marine activities, and it is
not an %egregious case% to warrant the action of striking down an &1C on bad faith grounds
- 1t was neither the Court*s duty or right to investigate the federal Cabinet*s motives, and the
matter was one of economic policy and politics which the court cannot in8uire into (ie+ gov*t
doesn*t publish reasons for passing regulations)
- @nbridge ?as 1istribution v. /ntario (2005 /nt. CA) (the %you had no #urisdiction to make gas
distribution rules under your enabling statute, in particular the provisions concerning billing
customers for gas commodity sales and distribution services% case)
- <irst, the Court decided on a correctness standard of review, both on a pure ultra vires
approach and through conducting a pragmatic and functional analysis (F+ #urisdictional
approach makes most sense, but both are &I)
- 7ere, on substance (ie+ no #urisdiction), the words of the enabling statute accorded ample
EB
#urisdiction on the 6oard to make billing provisions and this interpretation is harmonious
with the scheme of the 9ct and the intent of the legislature
- 7ere, on procedure (ie+ no ?
nd
notice and comment opportunity), the prior notice
re8uirement was sufficient as it allowed a reasonable opportunity to make written
submissions and there was evidence of considerable participation
- F+ Pushpanathan pragmatic and functional analysis should be used in ad#udicative matters,
not in rulemaking, as rulemaking (prospective) is entirely different from ad#udication
(retrospective)Abut either are fine
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2< PROCESS RE9UIREMENTS
- @uch of the public participation in rule-making in Canada consists of the provision of notice of
the proposed rule and the opportunity for the public to comment on the proposal (aka &!i#* $&0
#!11*&)
- 9gency puts out a draft rule, receives comments, and can accept or re#ect suggestions
- 9fterwards, the agency gives notice of a revised rule for further comment, and continues
with the process until they are satisfied about the final rule
- &nce the final rule is enacted, the legislature has "G days to accept2re#ect the rule
- 6enefits2costs of the notice and comment approach to rulemaking in Canada+
a) 6*&*.is 6**" i&.! $&0 0*%i7*"$i!& 1$) "*0(#* 1is$3*s $&0 i&#"*$s* 4(7%i#
i&2!%2*1*&
i) E&s("* 4(7%i# 4$"i#i4$i!&
- Cublic at least receives notice and some information about the proposed rule
- 'egulators potentially receive info from the public on the costs and benefits of and
trade-offs in making the rule
- This promotes deliberation and may lead to parties reaching une,pected agreements
ii) M$) 7* %!,*" #!s
- Jot as costly as formal deliberations
iii) M$) "*s(% i& 7**" 0*#isi!&s
- 9dditional info may reduce the mistakes made by the party making the regulation
about either the e,tent of any problems or the values of the public regarding the issue
b) C!ss T!! s%!,? #!s%)? i&si8&i.i#$&? $&0 %*$0s ! 1is$3*s
i) D*%$)
- Those making rules need to give notice of and time to comment on any proposed
material change to a rule
- Jot good with regard to fast-moving capital markets
ii) M$) 7* #!s%)
- 1f formal proposal-making, hearings or consultations to obtain public input are
needed, it can be very e,pensive
ii) N! 8($"$&** &!i#* $&0 #!11*& "(%*s ,i%% %*$0 ! 7**" "*s(%s
- Comment process often dominated by certain parties and interest groups (including
the regulated parties)
- $roups with more resources can make more detailed and effective comments
- 'ulemakers may simply go through the motions and not substantively change their
views
- Jo scope for deliberation, as comments simply provided to government and there is
EE
no e,change of ideas between those making the comments and the government
- 9n uninformed and imperfect public may also either overemphasi4e or ignore
problems on highly technical issues
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PART NINE LIMITS OF ADMINISTRATIVE LAW IN TIMES OF NATIONAL
SECURITY
I. PROCESS LIMITATIONS
- Jotice and an opportunity to be heard are bedrock elements of common-law procedural fairness,
and where triggered, there are e8uivalent fairness protections under the Canadian Bill of &ights
and the Charter; however, in national security admin proceedings, both notice and right to be
heard may be rudimentary+
a) A 6$s*1*& F%!!">
- Court has recogni4ed a bare minimum of fairness that must be met in national security
matters, at least where Charter interests are at stake
- Suresh+ applicant facing deportation to torture in =ri 5anka protected by the Charter*s
s/ concept of fundamental #ustice, meaning that he %must be informed of the case to be
met% and that he had an %opportunity be provided to respond to the case presented to the
@inister%
- Therefore, the final memo written wasn*t sufficient under s/ and not saved by s-
based on ramifications
- Char*aoui+ %the principles of fundamental #ustice cannot be reduced to the point where
they cease to provide the protection of due process that lies at the heart of s/%
b) N!i#* $&0 -* Ri8- ! 6* H*$"0
i) T"(&#$*0 N!i#*
- There is often e6 post fato appeal or #udicial review in lieu of notice
- 7owever, after-the fact #udicial review may be too late for a group that has been
erroneously placed on the official list of terrorist organi4ations (ie+ mistakenly put on
the no-fly list)
- 9lso, they will have been stigmati4ed as a terrorist group that will not be easily
e,punged
- 'isks of ethnic profiling as well as getting in trouble with foreign governments
ii) T"(&#$*0 Ri8- ! 7* H*$"0
- 1n other circumstances, when an individual is given notice > or at least an
opportunity to challenge a decision > special constraints may be imposed on his or
her right to be heard
- ie+ special closed-door (in amera) admin proceedings conducted in the absence of
counsel for the non-governmental party and that party themselves (e6 parte) were
permitted in several national security-related areas, including security certificate and
inadmissibility proceedings under the -&PA
- ie+ gov*t makes e6 parte application in court to put individuals on a no-fly or
terrorist list
- Char*auoi+ although there was a right to be heard, the Court did not signal that
confidentiality and a truncated opportunity to be heard are per se impermissible, nor
will it be significant in admin proceedings that don*t trigger s/ of the Charter
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E"
II. COURT REVIEW OF DISCRETIONARY NATIONAL SECURITY DECISIONS
- Courts must balance protecting the constitution and the fundamental pillars of a free and
democratic society with being mindful of national security threats when #udicially reviewing
national security cases
- There are two key concepts here+
a) D*.*"*&#* $s -* S$"i&8 P!i& i& N$i!&$% S*#("i) M$*"s
- To limit uncertainty in the definition of national security, courts have occasionally
added their own gloss to the concept
- Suresh+ =CC concluded that the phrase %danger to the security of Canada% in the then
current -mmigration At would survive constitutional challenge on vagueness grounds if
it were read as re8uiring the government to adduce evidence producing an ob#ectively
reasonable suspicion of a serious threat of substantial harm
b) T-* A44%i#$i!& !. D*.*"*&#*
- Suresh underscores difficult role of reviewing courts in the national security conte,t, as
generalist #udges are asked to second-guess government officials privy to arcane info and
e,pertise on matters that might shake the state to its foundation
- Suresh+ court found standard of review to be patent unreasonableness based on the
@inister*s special info and e,pertise
- Char*aoui v. Canada (200% SCC) (the %security certificate process under the -&PA, along with
in amera e6 parte admin proceedings conducted without counsel present, can*t be constitutional,
can it0 1 meanAcome onQ% case)
- =tandard of review was reasonableness, but even in national security conte,t at the s/ stage
of the analysis, they must conform to the principles of fundamental #ustice, which re8uire a
right to a hearing before an independent and impartial ad#udicator
- 7ere, while Charkaoui got a hearing before a #udge of the <ederal Court, the person named
in the certificate is not given disclosure of the materials; this infringes both the right to an
impartial ad#udicator (must be adversarial since they only have materials from one side) and
the right to know the case to meet and have an opportunity to answer it
- This doesn*t minimally impair rights, so the s/ violation isn*t saved by s-
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E/