1

Judicial Review of Administrative Action

Prof. Fox-Decent

Winter 2017
 2
Table of Contents
Part I: Introduction and Foundations ....................................................................................................... 4
Introduction to the Course ................................................................................................................................ 4
A Short Tour of What’s at Stake: Your Money and Your Life ............................................................................... 4
Roncarelli v. Duplessis,[1959] SCC .............................................................................................................................5
National Bank of Canada v. Retail Clerks International Union et al [1984] 1 SCR 269 ..............................................5
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231(headnote) ..........................................................6
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (headnote) .......................................6
The Nuts and Bolts and (Constitutional?) Basis of Judicial Review ...................................................................... 7
Chapter 1, An Introduction to Administrative Law, pp. 1-37.....................................................................................8
Chapter 2, The Rule of Law in the Administrative State, pp. 39-62...........................................................................9
BC v. Christie [2007] SCC 21 .....................................................................................................................................10
British Columbia v. Imperial Tobacco Canada Ltd, [2005] SCC ................................................................................10
Crevier v. Quebec (Attorney General), [1981] SCC ..................................................................................................10
Part II: Review of Procedural Fairness .................................................................................................... 11
Emergence of the Duty of Fairness .................................................................................................................. 11
Chapter 5, From Natural Justice to Fairness, pp. 147-154.......................................................................................11
Nicholson v. Haldimand Norfolk (Regional) Police Commissioners [1979] SCC ......................................................12
Knight v. Indian Head School Division No. 19 [1990] SCR 653 .................................................................................13
Sources of Procedural Fairness ........................................................................................................................ 15
Ocean Port Hotel v. BC [2001] SCC 52 .....................................................................................................................15
Authorson v. Canada (AG) [2003] 2 SCR 40 .............................................................................................................16
Limitation on the Scope of the Duty: Legislative and Policy Decisions............................................................... 17
Chapter 5, From Natural Justice to Fairness, pp. 155-162.......................................................................................17
Canada (Attorney General) v. Inuit Tapirisat [1980] 2 SCR 735 ...............................................................................18
Reference Re Canada Assistance Plan (B.C.) SCC [1991] .........................................................................................19
Dunsmuir v. New Brunswick [2008] – headnote & procedural fairness..................................................................19
The Content of the Duty of Fairness ................................................................................................................ 21
Chapter 5, From Natural Justice to Fairness; pp. 162 - 182 .....................................................................................21
Baker v. Canada (Minister of Citizenship and Immigration) (section on procedural fairness, including duty to give
reasons and bias) [1999] ..........................................................................................................................................23
Newfoundland Nurses’ Union v. Newfoundland and Labrador (Treasury Board) [2011] 3 S.C.R. 708 ...................24
An Act respecting Administrative Justice.................................................................................................................25
Impartial Decision-Making .............................................................................................................................. 26
Chapter 8, Tribunal Independence, Impartiality, and Bias; pp. 233-276 .................................................................26
The Charter and Administrative Law: S. 7 Principles of Fundamental Justice .................................................... 29
Chapter 12, The Charter and Administrative Law; pp. 407-419 ..............................................................................29
Singh v. Minister of Employment and Immigration [1985] .....................................................................................30
Suresh v. Canada (section at end on procedural fairness) [2002] ...........................................................................31
Part III: Review of Substantive Determinations ...................................................................................... 33
The Standard of Review .................................................................................................................................. 33
Chapter 9, Standard of Review: Back to the Future? pp. 279-291 ..........................................................................34
C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227 ............................................................................................34
Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 SCR 748 ..............................................35
Consolidation of the pragmatic and functional approach ................................................................................. 35
Chapter 9, Standard of Review: Back to the Future?; pp. 291 – 300.......................................................................35
Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] ...........................................................36
Law Society of New Brunswick v. Ryan [2003], up until para 24 .............................................................................37
Class 13: Three is a crowd! .............................................................................................................................. 38
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 323– 332 ................................................38
 3
Dunsmuir v. New Brunswick (from Chapter 8 or 9) [2008] paras. 27 – 43 ..............................................................39
Mondernizing Judicial Review, Bastarache J............................................................................................................39
Dr Q v College of Physicians and Surgeons of British Columbia (headnote) [2003] ................................................40
Review on a standard of correctness ............................................................................................................... 41
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342 ..................................................41
Canada (Attorney General) v. Mossop [1993] 1 SCR ...............................................................................................42
Pushpanathan v. Canada (Minister of Citizenship and Immigration) – after para. 37 ............................................43
Dunsmuir v. New Brunswick – paras. 51 – 55 ..........................................................................................................44
Review of reasonableness (patent or otherwise) ............................................................................................. 45
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 342-379 ..................................................45
Canada (Director of Investigation and Research) v. Southam Inc. (1997) after para. 47 ........................................47
Law Society of New Brunswick v. Ryan [2003] after para. 24 .................................................................................47
Dunsmuir v. New Brunswick [2008] paras. 44 – 49, paras. 58 – 76.........................................................................48
The Dunsmuir criteria and review post-Dunsmuir ............................................................................................ 49
Canada (Fisheries and Oceans) v. David Suzuki Foundation, [2012] FCA 40 ...........................................................49
Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals ............................51
Review of discretion ....................................................................................................................................... 52
Chapter 11, Administrative Discretion; pp. 381-406 ...............................................................................................53
Baker v. Canada (Minister of Citizenship and Immigration) (section on standard of review) paras. 57-65............56
Discretion Continued ...................................................................................................................................... 56
Suresh v. Canada (Minister of Citizenship and Immigration) (section on standard of review and “no reweighing”)
[2002] .......................................................................................................................................................................56
Canada (Citizenship and Immigration) v. Khosa [2009] SCC 12 ...............................................................................57
Discretion Continued ...................................................................................................................................... 59
Kanthasamy v. Canada (Citizenship and Immigration) [2015] .................................................................................59
Stratas J, A Plea for Doctrinal Coherence and Consistency .....................................................................................60
Review of Administrative Decision Involving Charter Rights ............................................................................. 62
Chapter 12, The Charter and Administrative Law; pp. 422 – 437............................................................................62
Slaight Communications Inc. v. Davidson [1989] .....................................................................................................63
Little Sisters [2000] (headnote) ...............................................................................................................................65
Multani v. Commission Scolaire Marguerite Bourgeoys [2006] (headnote) ...........................................................66
Review of Administrative Decision Involving Charter Rights Continued ............................................................ 68
Doré v. Barreau de Quebec [2012] (headnote) .......................................................................................................68
Loyola High School v. Quebec (Attorney General) [2015] .......................................................................................69
Agency jurisdiction to apply the Charter.......................................................................................................... 71
Chapter 12, The Charter and Administrative Law; pp. 438-448 ..............................................................................71
Nova Scotia (Workers’ Compensation Board) v. Martin [2003] ..............................................................................72
Administrative law and the National Security State ......................................................................................... 75
Charkaoui v. Canada (Citizenship and Immigration) [2007] (headnote) .................................................................75
Canada (Citizenship and Immigration) v. Harkat [2014] ..........................................................................................76
 4
Part I: Introduction and Foundations
Introduction to the Course

What is the difference between Judicial Review and Appeal Courts?

- Appellate courts will be able to substitute the lower court’s decision with their own.
- Judicial review will almost always send the case back to the administrative body to redo the case. The case is
set aside as null. They assess the legality of the decisions but not the merits of the decision.
- Judges police the decision-making of administrative bodies to ensure that they are complying with the
boundaries of the statutes that constrain their actions.

Why can’t the review body substitute their decision for the decision of the administrative body?
- The judiciary does not have the statutory authority to make this decision because the legislation does not allow
for judges to do so.
- All judges enjoy legal powers that they exercise from the statute. They are not permitted to go beyond the
boundaries of these statutes.

RULE OF LAW: All public decisions must find some authorization in a legal source. All government action must be
authorized by law, i.e. have a legal warrant. If it doesn’t, it can be struck down as extra-legal.
- Crown prerogative powers exists outside the rule of law: going to war, signing treaties, etc.

A Short Tour of What’s at Stake: Your Money and Your Life

Discussion of the role of the judiciary in ensuring that administrative actors comply with the law.

Readings
Roncarelli v. Duplessis (Rand and Cartwight JJ’s judgments)
National Bank of Canada v. Retail Clerks International Union et al (just the facts and then from [Page 283]
through to the end)
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (just the headnote)
Baker (just the headnote)
Dunsmuir (just the headnote)

Class Notes
- Roncarelli challenged the decision through judicial review. This didn’t go anywhere because the action had to
be approved by the attorney general, who was Duplessis at the time.
Cartright Dissent:
Privilege vs. Right:
- Liquor licence is not a right, it is a privilege – it can be suspended at any time or for any reason (Cartright)
Policy vs. Law:
- Is it better for policy interest for a particular individual to have a liquor licence? If not, then that liquor licence
can and should be revoked.
Administration vs. Adjudication:
- Privilege and policy belong in the realm of administration whereas right and law belong in the realm of
adjudication.
- The decision maker is a law unto itself – not subject to review. Where the law is silent, the policy maker operates
in a legal voice – it is not up to the judge to decide, even if the judge thinks it’s not fair. They do not have the
authority to second guess and set aside a policy decision.
- The remedy is to change the person who is writing the law.
Rand’s Response:
1. Common law perspective: What is the scope and purpose of the statute? To regulate the sale and distribution of
liquor. Nothing Duplessis was doing had to do with liquor. He was punishing Roncarelli and driving up the costs
for Roncarelli so he could not afford to post bail for the Jehovah’s Witnesses.
 5
2. Then you need to read it’s provisions that pay some respect to common law rights that exist outside of the law
– clear statement principle  if the legislation is going to be interpreted in a way that infringes on someone’s
rights, the infringement must be justified in a way that is clear and precise.
One of Duplessis’ defences was that this was in the interest of the public of Quebec and was celebrated by the public.
He claimed that he was immune from suit because of his stature as a public officer – sovereign immunity. Roncarelli’s
lawyers got past this hurdle by arguing that Duplessis was not acting in his capacity as a public officer. He was acting
as a private citizen who was carrying out a private grudge against Roncarelli.

Roncarelli v. Duplessis,[1959] SCC

Facts:
Premier Duplessis ordered the Quebec Liquor Commission to revoke the liquor license held by Roncarelli, because
he had posted bail bonds for Jehovah’s Witnesses who had been charged with distributing their literature in violation
of municipal bylaws. The liquor licensing statute simply stated that licenses could be revoked in the discretion of the
commission and did not specify the circumstances in which, or the purposes for which, the power was exercisable.
Issue: Was the Liquor Commission entitled to use its “discretion” to deny Roncarelli a license?
Holding: No. Appeal allowed.
Reasoning (Majority – Rand J.):
In a time of increasing public regulation, such an administration cannot act without complete impartiality and integrity,
and grounds for refusal must not be incompatible with the purpose of the regulation. No legislative Act can,
without express language, be taken to convey unlimited arbitrary power for capricious or irrelevant purposes. (e.g.
fraud and corruption are assumed to be exceptions  discretion implies good faith.
To deny or revoke a permit because a citizen exercises an unchallengeable right, totally irrelevant to the sale of liquor,
is beyond the scope of discretion conferred. It was a gross abuse of legal power designed to punish him for an act
totally unrelated to the statute and destroy his economic life. A decision to deny or cancel this privilege lies within
the “discretion” of the Commission – but that means that decision is to be based upon a weighing of considerations
pertinent to the object of the administration – I.E. LOOK TO PURPOSE
Discretion entails 1) good faith; 2) non-arbitrariness and 3) no fraud or corruption in discharging public duty.
Therefore, the respondent’s action is a breach of public statutory duty, an abuse of legal power. Duplessis, in
instructing the commissioner, acted outside of his legal powers.
Dissent – Cartright J.:
The statute empowering the commission gets its power grants unfettered discretion with regard to granting permits.
The commission’s function is administrative, not judicial or quasi-judicial. Under the statute, no one has a pre-
existing right to obtain a permit and it may be cancelled at any time. Without a right to have the permit, he has no
right of action. There are no standards or conditions in the statute about when permits can be revoked, and thus the
Legislature intended the commission “to be a law unto itself. The wisdom of conferring such unfettered power to a
commissioner is for the legislature to consider, not the court.

National Bank of Canada v. Retail Clerks International Union et al [1984] 1 SCR 269
Facts:
National Bank closed a branch at which 15 tellers had unionized. The Canadian Labour Board found that the Bank
had committed an unfair labour practice and imposed various remedies, including: No. 6 – The Bank must create a
trust fund to promote the objectives of the Canada Labour Code among all its employees; No. 5 – The Bank must
send a letter to all Bank employees on Bank stationary, written by the president, informing them of the decision and
the creation of the fund.
Issue: Did the Board exceed its jurisdiction by imposing the two noted remedies?
Holding: Yes, appeal allowed.
Reasoning (p. 283 – end):
The imposition of remedies is authorized by s. 189 of the Code: The Board is authorized to order an employer to do
or refrain from doing anything “in order to remedy or counteract any consequence of such failure to comply that is
adverse to the fulfilment of the Code’s objectives”. However, there must be a relation between the unfair practice, its
consequences and the remedy. This is not present for No. 6:
Remedy No. 6: This order constitutes an excess of the Board’s jurisdiction. The creation of a $144,000 trust fund is
unfair and is in no way connected to the wrong – it is an arbitrary figure to “allegedly” promote the objectives of the
 6
Code among persons to whom the decision has never applied. The trust fund promotes the unionization of other
employees and doesn’t remedy the consequences of closing the branch in question. The fact that a large number of
the banks’ employees are not unionized is not a consequence of the closure of that branch.
Since No. 5 repeats the conclusions of No. 6, in a letter, it should also be set aside.
Beetz (additional reasons):
No. 5 and No. 6 are both punitive in nature, and the Board has no power to impose punitive measures. The letter never
says that both it and the creation of the fund were imposed by the board – signor is not allowed to say so. The has the
effect of forcing the signor to agree with the provisions of the Code – to write a letter which may be misleading or
untrue. The is totalitarian – anathema to freedom of thought, belief, and expression.

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231(headnote)

Facts:
The appellant is a subsidiary of Shell Canada Ltd. and is involved in retail and wholesale marketing of petroleum
products in Vancouver. It was periodically invited to tender bids for municipal contracts to supply petroleum products
until Vancouver City Council passed resolutions that the City would not do business with Shell Canada "until Royal
Dutch/Shell completely withdraws from South Africa". Vancouver purchases petroleum products from another
company which, through one of its subsidiaries, also does business with South Africa. The British Columbia Supreme
Court quashed the resolutions as being ultra vires the municipality. The Court of Appeal reversed the judgment.
Holding: The appeal should be allowed.
Reasoning:
Vancouver was seeking to use its powers to do business to affect matters in another part of the world, a purpose which
is directed at matters outside the City's territorial limits. Under the Vancouver Charter, Council "may provide for the
good rule and government of the city". This places a territorial limit on Council’s jurisdiction. Any action taken in
regard for matters beyond its boundaries must have as its purpose the benefit of the citizens of Vancouver. Even if
there were a municipal purpose, the resolutions constitute unauthorized discrimination. Considerations relating to the
political policy of a foreign state are not so essential to the exercise of enumerated powers as to be implied.
Class Notes:
- Power of municipality – discretionary power
- Territorial limit – the city could do what they deemed necessary for the interest of its citizens. Their
discretionary power did not extend to South Africa. This amounted to discriminatory procurement and was
“ultra vires” to the powers of the municipality.

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (headnote)
Facts:
The appellant, a woman with Canadian-born dependent children, was ordered deported. Normally, applications for
permanent residency would have to be made outside the country but she applied for an exemption, based on
humanitarian and compassionate considerations under ss. 114(2) of the Immigration Act. A senior immigration officer
replied by stating that there was insufficient humanitarian reasons to warrant processing the application in Canada.
There were no reasons given for the decision.
Issue: Were the principles of procedural fairness violated in this case? Was the “humanitarian and compassionate
grounds” decision, as a substantive matter, made improperly in this case? Was the decision unreasonable?
Holding: No, there was no procedural fairness in this case. The claimant did have an opportunity to present the case
and was provided with reasons, but there was reasonable apprehension of bias. The failure to give serious weight and
consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the
section, notwithstanding the important deference that should be given to the decision of the immigration officer.
Reasoning (L’Heureux Dube, J.):
The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular
statute and the rights affected. The non-exhaustive list of factors relevant to determine the content of the duty of
fairness are: (1) the nature of the decision; (2) the nature of the statutory scheme; (3) the importance of the decision
to the individual; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure
made by the agency itself.
The lack of oral hearing did not constitute a violation of the requirement of procedural fairness.
 7
The Nuts and Bolts and (Constitutional?) Basis of Judicial Review
Examination of the constitutional and statutory basis of judicial review.

Readings
Chapter 1, An Introduction to Administrative Law
Chapter 2, The Rule of Law in the Administrative State; pp. 39 – 62
British Columbia v. Imperial Tobacco Canada Ltd [2005] (headnote and paras 56-78)
BC v. Christie [2007] SCC 21
Crevier v. Quebec [1981] (Attorney General) (just the headnote)

Class Notes – Rule of Law

Dicey:
Two interlocking principles for British constitutionalism:
1. Parliamentary sovereignty: there is no law that parliament is incapable of making. It can make any law it wishes.
(e.g.: Amnesty acts – granting amnesty to wrongdoers). But a present parliament cannot bind the hands of a
future government because for them to do so would make future parliaments less powerful than they could be.
2. Rule of law:
 Anti-arbitrariness  in the possession or execution of public power. He meant people who hold
administrative power, bureaucrats, not judges.
 Legal equality  private citizens, corporation and public servants can all be held accountable in civil
society.
 Common law judicial interpretation  of statutes. Whereas parliament has authority to draft any statute,
for that law to the effective, it always has to be subject to an interpretation done by a judge who takes
into account communal values under the common law – with an eye to equity, liberty, access to justice,
etc.

Fuller/Raz:
Internal morality of law:
Fuller came up with the “internal morality of law”. There must be some general rules and constraints. They must be
public, prospective, not retroactive, must be possible, relatively stable, clear, not vague or ambiguous, internally
consistent with each other. These are the formal requirements that comprise the internal morality of law. No express
limit on the content of the laws. Wicked regimes could comply with all these requirements. Fuller’s rule of law
component required that the laws be interpreted in line with the spirit and letter of the law.
Raz says that the internal morality is a good place to start. His substantive contribution is to say that laws must provide
a stable framework of rules that guide peoples’ behaviour.

Morality or efficacy?
Fuller and Raz would agree with each other on the importance of the rule of law but have different views about what
Rule of Law means. Fuller’s view is that the internal morality is really a morality. Clarity and stability allows people to
plan and live their lives. Failure to do this would be a moral failure. Raz says that the principles that condition lawmaking
govern the effectiveness, not the morality of the law. Law is just an instrument that can be used for good and for ill.
People use the rule of law as a kind of panacea to complain about slavery and discrimination. These are not necessarily
a violation of the rule of law, just a violation of human rights or common decency.

Minimalist View
- Rule of law is supreme
- Positive normative order – Manitoba Language Rights Reference
- State/individual relationship is always regulated by law
- Judicial independence
- No authority to strike down valid legislation on the basis of the rule of law.
 8
Chapter 1, An Introduction to Administrative Law, pp. 1-37
Administrative law concerns the “supervision” by courts of decision making made pursuant to statute or royal
prerogative. Administrative boards or tribunals and ministers and departmental officials, have no inherent power to
make decisions that affect people’s lives but for the statute (or royal prerogative) that empowers them to do so. The
role of the court is to make sure, at a minimum, that decision makers do not step outside the boundaries of what they
are legally empowered to do.
Reasons for the expansion of government activity:
1. The desire to depoliticize certain decisions;
2. The need for greater specialization and technical or subject-matter expertise to make decisions;
3. A reluctance to enmesh courts in matters not suitable to judicial review because of their specific nature or the
volume of decisions that have to be made.
Conflicts and Tension in Theories of Admin law:
The wave of expansion of the welfare state was met with resistance from the formalist English legal establishment.
Administrative agencies were challenged in the late 19th century and early 20th century for being outside the
jurisdiction (ultra vires) of the federal or provincial legislature that created the agency in question. The key complaint
was that tribunals “recklessly intruded upon liberty, by mistake or through excessive zeal.”
Remedies  Review
Where do courts get the power to review administrative decision making?
1. Original jurisdiction over decisions of administrative decision-makers when challenged directly by a citizen
in contract or tort on the ground that the state has infringed an individual’s private legal right.
2. Statutory right of appeal: there is no automatic right to appeal the substance of an administrative decision to
the courts. It must be provided for in the statute that established the administrative agency.
3. Inherent judicial review jurisdiction: the superior courts in each province may review decisions made by
institutions and officials with responsibility for administering public programs through the courts’ inherent
judicial review jurisdiction.
For the first ¾ of the 20th century, judicial review of statutory decision-making was very confined. However, with
greater governmental intervention in the private sector, the courts became less hospitable towards administrative
tribunals and reacted defensively against the government. The legislature inserted “privative clauses” to stop courts
from reviewing admin decisions but the courts ignored these clauses or interpreted them in a very restrictive way. The
courts were able to review admin decisions just like they would review a lower court decision.
Change in the 1960s and 1970s  McRuer Commission (1964) codified procedures for admin tribunals in a number
of provinces, enacted procedural law and made recommendations with respect to the scope of judicial review.
1971 Judicial Review Procedure Act (Ont.)  established rules for courts review errors of both law and fact.
Over the next 30 years, nearly all provinces enacted statutes that replaced the old common-law writs (remedies) with
a single application for judicial review.
Section 96 and the Constitutional Basis for Judicial Review:
S. 96 provides that the appointment of superior court judges is the sole responsibility of the federal government.
Superior courts have an inherent jurisdiction to review admin decision making and are themselves immune from
judicial review, because they do not have jurisdiction to judicially review other superior courts: they can only review
inferior admin tribunals.
Provinces do not have jurisdiction to create s. 96 courts. However, by inserting privative clauses and calling them
“admin tribunals”, they get the same immunity from judicial review as s. 96 courts. The leading case on admin
tribunals masquerading as s. 96 courts is Crevier  the court concluded that to give a provincial tribunal unlimited
jurisdiction to interpret and apply law and then preclude any supervision by provincial superior courts created a s. 96
court.
There is a constitutionally recognized right to judicial review.
General Principles of Admin Law:
1. Review for Procedural Fairness: threshold question; the content of procedural fairness; bias, independence,
and institutional decision making.
2. Substantive Review: correctness vs. reasonableness
3. Remedies and the legitimacy of judicial review
 9
Chapter 2, The Rule of Law in the Administrative State, pp. 39-62
The Purpose of the Rule of Law: The Non-Arbitrary Rule of Men
In a legal system governed by the rule of law, all persons will possess formal equality, ensuring that elected officials
and high-ranking members of the executive branch of government will be held legally accountable just like any other
person.
Need to prevent and constrain arbitrariness within the exercise of public authority and legal officials – process,
jurisdiction and substance. Usually about procedure but can also refer to substance – bias, illogical, unreasonable, etc.
Arbitrariness seems to suggest the absence of a rule, but judges or administrators can also arbitrarily apply a valid
rule.
Attributes of the Rule of Law:
“Metaprinciple”  organizes an open set of related principles such as the principle of legality, separation of powers,
responsible government, judicial independence, access to justice, fundamental justice, honour of the Crown, etc.
Core meaning  principle of legality: law should always authorize the use and constrain the risk of the arbitrary use
of public power.
Three ways it restrains arbitrary power:
1. Constrains the actions of public officials;
2. Regulates the activity of law making;
3. Seeks to minimize harms that may be created by the law itself.
Albert V. Dicey’s common law model:
The rule of law possessed three features:
1. The absence of arbitrary authority in government (especially in executive branch and admin state);
2. Formal legal equality (every person is subject to the law);
3. Constitutional law.
Lon Fuller’s Theory:
In contrast to Dicey’s model, a common set of principles has evolved: publicity, non-retroactivity, clarity, generality,
consistency, stability, capability of being obeyed, and declared rules constraining the administration of law as well as
the discretion of public officials.
Procedural approach to understanding the principle of legality  compliance occurs, in part, because citizens derive
benefits from following the law.
Joseph Raz’s Theory:
Law must be capable of guiding the behaviour of its subjects. The rule of law as the principle of legality acts as a
practical guide for making effective law, thereby constraining the harms created by law itself.
The Supreme Court of Canada and the Rule of Law:
The court has not set out a fully articulated conception of the rule of law (and perhaps never should).
As a foundational principle, the rule of law is both part of the written and “unwritten” Constitution. It implicitly
appears in the preamble of the Constitution Act, 1867 and explicitly in the Constitution Act, 1982. Appears also in the
Manitoba Language Rights Reference [1985], and the Secession Reference [1998].
The SCC disagree about the scope and content of the principle of the rule of law. In a trilogy of cases – Imperial
Tobacco, Charkaoui, and Christie – the Supreme Court has considerably narrowed the scope and effect of this
principle within Canadian law.
Four Key Principles:
1. It is supreme over private individuals as well as government officials, who are required to exercise their
authority non-arbitrarily and according to law;
2. It requires the creation and maintenance of a positive order of laws;
3. It requires the relationship between the state and the individual to be regulated by law;
4. It is linked to the principle of judicial independence.
The rule of law does not possess the ability to strike down legislation based on its content. It does not speak directly
to the terms of legislation. The government action it is able to constrain is usually that of the executive and
administrative branches. Legislatures are constrained by “manner and form” requirements in the processes of
enacting, amending or repealing legislation.
Peter Hogg: Unwritten principles like the rule of law have no direct legal effect, but are merely influential, interpretive
“constitutional values.”
 10
BC v. Christie [2007] SCC 21
Facts:
BC’s Social Service Tax imposed a 7% tax on the purchase price of legal services to fund aid in the province. Dugal
Christie, who worked with poor/low income clients in Vancouver, challenged the constitutionality of the tax, claiming
that the net effect of the tax was to make it impossible for some of his low-income clients to retain him to pursue their
claims. Christie’s argument was one for access to justice as an element of the rule of law.
Issue: (1) Does the 7% tax on legal services infringed upon the rule of law? (2) Is the general access to legal services
an element of the rule of law?
Holding: (1) The tax on legal services did not infringe the rule of law, because the Act itself adheres to the three
requirements imposed by the rule of law. (2) The general access to legal services is not recognised as a fundamental
aspect of the rule of law. Rather, the right to counsel is limited only to representation in the context of criminal law.
Reasoning: The proposed right to be represented by a lawyer in a court where legal rights or obligations are at stake
would be a very broad right and would encompass all – if not all – cases that come before the court, including corporate
cases and related legal advice. The result would be a constitutionally mandated legal aid scheme for virtually all legal
proceedings. Guaranteed legal services might lead to people to bring claims before courts who would not otherwise
do so. The fiscal implications of this right cannot be denied. This is a huge change which would alter the legal
landscape and impose a considerable burden on taxpayers.
Charter s.10: Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay…
The Court concluded that “the text of the constitution, the jurisprudence and the historical understanding of the rule
of law do not foreclose the possibility that a right to counsel may be recognised in specific and varied situations. But
at the same time, 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.”
Ratio: The Charter right assumes the existence of impending Criminal charges, not the right to legal services in
general. The “right to counsel” is understood as being limited to representation in the criminal context.

British Columbia v. Imperial Tobacco Canada Ltd, [2005] SCC

Facts:
The Tobacco Damages and Health Care Costs Recovery Act authorized the province to sue tobacco companies for
the recovery of health care costs from the past 50 years. The government argued that the companies had breached a
duty of care to the consumers. The Act reversed the burden of proof, and changed several other rules of civil procedure
to favour the government. Tobacco companies challenged the validity of the act on three grounds, one of which was
the rule of law (right to a fair trial).
Issue: Does the Act violate the rule of law?
Holding: No.
Reasoning (Major J.):
There are three aspects to the rule of law: (1) legislation applies to everyone, including government officials; (2)
legislation must exist – an actual order of positive law; and (3) state officials’ actions must be legally founded. Rule
of law cannot be used to invalidate legislation based on its content – none of these principles speaks directly to the
terms of the legislation, only to requirements of manner and form. Its normative power to constrain government action
is usually restricted to the executive and judicial branches.
Narrow reading of the rule of law: Does not require that legislation be prospective (except for criminal law)  there
is a presumption against retroactivity, but if retroactivity is clearly expressed, then the courts must uphold it. Does not
require that legislation be general and devoid of special advantages for the government. Does not ensure a “fair” civil
trial  no constitutional right to have one’s trial governed by ordinary rules of civil procedure.

Crevier v. Quebec (Attorney General), [1981] SCC

Facts:
The Professional Code (QC) sets up a discipline committee for each of the 38 professions that falls under it. These
committees have jurisdiction over every complainant of an offence under the Code “to the exclusion of any court”.
The Code also created a Professions Tribunal (composed of Provincial Court Judges) to which decisions of the
committees could be appealed. Ss. 194 and 195 of the code state that the CCP articles allowing for the oversight of
the Superior Court over decisions of the Tribunal “shall not be exercise”. A majority of the Court of Appeal ruled that
ss. 194 and 195 could be read down to preserve the Superior Court’s authority with respect to jurisdictional questions,
and thus save the Professions Tribunal from being invalidated by s. 96.
 11
Issue: Do the powers of the Tribunal violate s. 96 of the Constitutions Act 1867?
Holding: Yes, appeal allowed.
Reasoning:
When determining whether a tribunal infringes on s. 96, you must look at the context in which the power is exercised.
The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal. In this case, the
Tribunal has no function other than that of general tribunal of appeal. Therefore, its final appellate jurisdiction is not
part of an institutional arrangement set up as a regulatory scheme by the provincial government.
Privative clauses to limit judicial review of decisions are OK. However, provincially-constituted statutory tribunal
cannot be immunized from review of decisions on questions of jurisdiction (s. 96).
To give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation,
and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, is to
create a s. 96 court.
Class Notes:
Privative clauses started to be drafted in the 1920s – “subject to no review by any credible body”. Courts understood
that judicial review was inherited and so mostly ignored the privative clauses.

Part II: Review of Procedural Fairness

Emergence of the Duty of Fairness
The birth of the duty of fairness in Canadian public law; understand different interpretations of the basis of the duty of
fairness.

Readings
Chapter 5, From Natural Justice to Fairness; pp. 147 – 154
Nicholson v. Haldimand Norfolk (Regional) Police Commissioners [1979]
Knight v. Indian Head School Division No. 19 [1990]

Class Notes
Threshold  Does it apply?
Does a duty of procedural fairness apply to this case? Until Nicholson, the general rule was there was no free-standing
duty of fairness. The duty of fairness had to have some anchor in the statute. There was no specific rule.
- Exception to this: distinction between administrative decisions on one hand and judicial and quasi-judicial
decisions. If the decision was judicial in nature, then they would say that the rules of natural justice would apply
(e.g. impartiality). This preceded the rule of procedural fairness.

Content  What is it?

What does the duty of procedural fairness mean? The term is very flexible, driven by context.
Some content is constant. These are not in play:
Impartiality, independence
Other content is in play:
Participatory rights: duty to disclose, right to counsel, right to an oral hearing.
Reasons: where significant interests are at stake, you must give reasons (such as granting parole).

Chapter 5, From Natural Justice to Fairness, pp. 147-154

From Natural Justice to Fairness
Judicial and quasi-judicial decisions used to be required to be made in accordance with the rules of natural justice.
The decision-maker was required to “hear the other side” in a dispute before deciding. However, administrative
decisions (any decision other than judicial or quasi-judicial) could be made without any procedural impediments.
Judicial review proceedings focused on the nature of the power exercised rather than the impact of its exercise.
The growth of the modern regulatory state changed the nature of procedural protection afforded to administrative
decisions. In Nicholson v. Haldimand, the SCC abandoned the all-or-nothing approach to the provision of procedural
protection. Under the traditional common law approach, there was no entitlement to a hearing before dismissal, nor
 12
could his dismissal be characterized as the sort of “judicial or quasi-judicial” decision to which natural justice
protection applied. In a 5-4 decision, the SCC held that a general duty of “procedural fairness” applies to
administrative decisions. Nicholson was entitled to be treated fairly, not arbitrarily; he was entitled to be told why he
was being dismissed and given an opportunity to make submissions before being dismissed. It did not matter that the
board had the ability to dismiss him for any reason at all.
In subsequent cases the “duty of fairness” came to replace natural justice as the organizing principle in administrative
law. The duty of fairness is concerned with ensuring that public authorities act fairly in the course of making decisions,
not with the fairness of the actual decisions they make. It does not have anything to do with the outcome of particular
decisions, and does not require decisions of public authorities be “fair”, which is a subjective concept. It promotes
sound public administration and the accountability of public decision-makers by ensuring that decisions are made
with input from those affected by them.
The duty of fairness requires two things:
1) The right to be heard
2) The right to an independent and impartial hearing
Fairness may be limited or even ousted by ordinary legislation, subject only to compliance with the Charter.
Canadian Bill of Rights: protects a “right to a fair hearing in accordance with the principles of fundamental justice.”
Two questions arise:
1) Has the threshold for the application of the duty been met?
2) What does the duty of fairness require in the relevant circumstances?

The Threshold Test: When is Fairness Required?

Rights, Privileges and Interests
The duty of fairness applies to decisions of public authorities (executive actors, tribunals, and officials acting pursuant
to statutory authority) that affect an individual’s rights, privileges, or interests. (e.g. although prison inmates may have
no right to early release, once the state establishes a parole system of some sort, they are entitled to procedural fairness
in its operation.)
Constitutional Protection
When, and to what extent, does the Charter require the provision of procedural protection?
Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
The SCC has held that the principles of fundamental justice subsume procedural fairness protection, but the right does
not constitutionalize the duty of fairness per se. Section 7 establishes a higher threshold than simply demonstrating
that a right, privilege or interest is affected. (e.g. an application to renew a taxi license does not give rise to Charter
protection because the denial of a license does not constitute a deprivation of life, liberty or security of the person.)

Nicholson v. Haldimand Norfolk (Regional) Police Commissioners [1979] SCC

Facts:
Regulations under the Police Act state that police officers with 18 months or more of service have a right to an oral
hearing, an appeal, and written reasons if dismissed. Officers with less than 18 months do not have this right
(implication is that there is a probationary state of 18 months). Nicholson had served for 15 months and was terminated
by the Police Board without a hearing or reasons. Nicholson argued that he had a common law right to be treated
fairly and receive written reasons but the Police Board argued express mention of one thing excludes the other
(expression alterius rule) which was accepted by the Ontario Court of Appeal and the SCC dissent.
Issue: Did Nicholson have a right to be heard? YES.
Reasoning (Laskin Majority):
A police officer under this regime does not hold his office “at pleasure”. The statute contains a temporal point at
which full procedural protection is given to a constable. This indicates a turning away from the old common law rule,
even in cases where the full period of time has not yet run. Status enjoyed by the office holder has more substance
than to be dependent on the whim of the board up until 18 months have passed.
Thus, although the cop doesn’t have the right to the full procedural protections he would get at 18 months, he cannot
be denied any protection  “he should be treated fairly, not arbitrarily”.
“In the administrative or executive field, there is a general “duty of fairness”  involves something less than
procedural protection of traditional natural justice. The classification of statutory functions as judicial, quasi-judicial
or administrative is confusing, and to endow some with procedural protection while denying others any at all would
 13
work injustice, when statutory decisions raise the same serious consequences for those adversely affected, regardless
of the classification of the function.
In this case, the consequences to the appellant were serious indeed. But he was never told why he was deemed unfit
to hold his position. He should have been told why his services were no longer required and given an opportunity to
respond. This would have been good for the Board – it would have ensured they had not made a mistake of fact. Then
the Board could make any decision they wanted, and, assuming good faith, it wouldn’t be challenged. [Laskin found
on the facts that at no point had Nicholson been told why he had been dismissed… There were only vague assertions.]
Martland (Dissent):
Agreed with Ontario Court of Appeal that if less than 18 months is purely probationary, there are no procedural
fairness obligations. The statute didn’t impose any of these obligations on the Board. The right to dispense with
Nicholson was not limited to specific causes. There was no need to investigate, condemn or criticize. The decision
was purely administrative.
Class Notes:
Three types of employment
- Master/servant: employer can dismiss the employee with notice, no reason necessary.
- Office held at pleasure: higher level – serves at the pleasure of the crown (or minister) – Nicholson was an
office holder – can be summarily dismissed.
- “For cause”: job governed by a collective agreement (union) – can only be dismissed for cause – the employer
must allege and sustain reason to justify dismissal.
Martland: What’s the point of having a hearing if the Board can dismiss the officer for any reason whatsoever.
Laskin: There must be some middle ground – there can be a halfway house – duty of fairness. Somehow hear from
the person who will be touched by the decision. It’s a way of softening the blow.

Class Notes
Three ways to think about the duty of procedural fairness:
(1) Positive law view: for a duty of procedural fairness to apply, it has to be rooted in positive law (explicitly or
implicitly). Martland J. in Nicholson is an example of this view. What are the possible sources of procedural
fairness? All positive law (such as s. 7 the Charter – principles of fundamental justice).
(2) Legislative intent view: sometimes a duty of procedural fairness can apply even when there is no explicit anchor
in the statute. So long as there nothing that suggests in the statute that says that it shouldn’t be. Where the
legislation does provide a procedure but it is ambiguous about what that procedure should be. Where it differs
from positive law, is where the law is silent, the judge can say that the legislator usually acts in a certain way.
(3) Common law view: It’s a quasi-constitutional principle that adheres in the very tenets of our legal system. PF
comes from the very practice of JRAA itself; judges understood as defenders of individual interests, come to have
a certain significance when touched by administrators. Can give rise to a duty on the part of the admin body to
have certain procedures – so that the decisions are not arbitrary.

Knight v. Indian Head School Division No. 19 [1990] SCR 653

Facts:
Under the School Act the School Board can terminate the Director of Education with cause, or can give 3 months’
notice to terminate without cause (i.e. “at pleasure”). The Board dismissed the Director when he refused to accept a
renewal of his contract for a shorter term than the original. The director brought an action against the Board for judicial
review arguing he was entitled to procedural fairness before being dismissed.
Issue: Are there procedural rights for an office holder at pleasure? YES.
Reasoning (L’Heureux Dube, Majority):
The Education Act, which deals with the dismissal of non-teaching personnel does not provide grounds for dismissal
or procedures that must be followed  relies on the terms of the employment contract. There may be a general right
to procedural fairness, autonomous of the operation of any statute, depending on consideration of certain factors.
Existence of a general duty to act fairly depends on:
1. The nature of the decision to be made by the administrative body
2. The relationship between that body and the individual
3. The effect of that decision on the individuals rights.
Is there a duty to act fairly?
 14
1. Nature of the decision: It is no longer necessary to consider whether a decision is judicial, quasi-judicial or
administrative because the duty to act judicially and the duty to act fairly arise from the same general
principles of natural justice. However, not all administrative bodies are under a duty to act fairly. Legislative
and judicial decisions (e.g. broad public policy task, like writing delegated legislation) are less likely to
require procedural fairness; administrative and specific decisions are more likely. Preliminary decisions (e.g.
initial reports) are less likely to require procedural fairness than final decisions. In this case, the decision was
“administrative and specific” since it applied to one individual regarding his suitability for the job, and was
final.
2. Relationship between administrative body and the individual: In this case, the office encompassed some
elements of a public nature and some that were merely contractual. The office in question was one held at
pleasure, since the respondent could be dismissed for reasons other than cause. Recent developments in
administrative law necessitate procedural fairness when an administrative decision is made to terminate
someone who holds office at pleasure. Though, substantively, mere displeasure of the employer is still a
sufficient reason for dismissal.
3. The effect of that decision on the individuals rights. This is a significant issue, since individual losing
office (interests around livelihood, generally, require procedural fairness, but recall that this doesn’t apply to
ordinary master-servant employees). So, Knight is entitled to procedural fairness.

If there is a general duty of fairness owed, does the statute (or contract) eliminate or limit the rights to procedural
fairness?
The principle of Parliamentary supremacy, although Charter (e.g. s.7) and Bill of Rights trump the statute. In this
case, there is nothing in the legislation or the employment contract to defeat the presumption that the parties to the
contract intended procedural fairness to apply. The fact that the contract does not refer to the necessity of a hearing
does not amount to a waiver.

If not eliminated or limited by statute, what is the content of the procedural rights?
PFOs are “eminently variable” and must be decided on “the specific context of each case. But it is not purely
subjective. “Every administrative body is the master of its own procedure and need not assume the trappings of a
court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice
that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible,
adapted to their needs and fair.”
Spectrum – basically the same 3 steps as in threshold question above. The closer the administrative process is to the
judicial process (e.g. findings of wrongdoing, adjudication with evidence from parties, determinations of fact and
law), the more PFOs, and vice-versa.
In this case, Knight could be dismissed at pleasure, suggesting minimal duty of fairness. Knight only deserved notice
of reasons and opportunity to be heard, which did not need to be a formal letter of notice nor a formal hearing. Knight
got these PFOs through the negotiation process with the Board.
Class Notes:
Threshold question: looking at a number of considerations
1. Judicial/administrative distinction not relevant
2. Finality
3. Nature of the Relationship – in this context, it is an “at pleasure” appointment
a. Master/servant
b. “At pleasure”
c. “For cause”
4. Importance of the interest – may not apply when it is a de minimus employment.

Principle of legitimacy – whenever a public power is put to use, because it’s a public power, it is distinct from two
private parties enter into a contract with one another. It affects the public when a public agency is involved, it calls
for a greater degree of scrutiny. Procedurally it must be fair and reasonable  concern for the rule of law.
Sopinka (dissent) – took a positive law view. There must be some anchor in the statute. The statute says that they
must give three months’ notice.
 15
Sources of Procedural Fairness
Understand the sources of the duty of fairness and when they apply.
Sources of the Duty to be Fair include: the common law; statutory interpretation; section 2(e) of the Bill of Rights;
section 7 of the Charter; provincial charters of rights; explicit statutory obligations.

Readings
Ocean Port Hotel v. BC [2001] SCC 52
Authorson [2003] 2 S.C.R. 40 (headnote)

Class Notes
There are many sources of procedural fairness, such as the Charter of Rights of Freedoms, s. 7. But that’s not the only
source. Section 11 of the Constitution provides a number of rights to those charged with a crime. Sections 8-12 also
provide various procedural rights. Section 10 – being informed properly as to why you’re being tried. Section 35 provides
that aboriginal treaty rights are recognized and affirmed.

The Bill of Rights – ss. 1(a) and 2(e) – protects property rights. There must be an impartial adjudicator whenever
someone’s rights are affected – this is extended to property rights, not included in the Canadian Charter. But the Bill of
Rights is only applicable to Federal statute, not Provincial, whereas the Charter applies to all government statutes.

QC Charter – s. 23  Every person has a right to a full and equal, public and fair hearing by an independent and impartial
tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him. The
tribunal may decide to sit in camera, however, in the interests of morality or public order.

Enabling Legislation – legislation that enables a particular administrative tribunal or agency to act. Will often have
within it certain requirements or entitlements.

Common Law – crucial question around the common law: what is exactly the status of common law rights vis-a-vis
procedural fairness?

Ocean Port Hotel v. BC [2001] SCC 52

Facts:
A police investigation of Ocean Port Hotel found that they had committed 5 infractions of the Liquor Control and
Licensing Act and Regulations. After a hearing, a penalty was imposed that included a two-day suspension of the
respondent’s liquor license. The respondent appealed to the Liquor Appeal Board and 4 of the 5 allegations were
upheld and the penalty was confirmed. Pursuant to s. 30(2) of the Act, the chair and members of the Board “serve at
the pleasure of the Lieutenant Governor in Council”. Members are appointed for a one-year term and serve on a part-
time basis. The chair established panels of 1 or 3 members to hear matters before the Board “as the chair considers
advisable”. Ocean Port argued that the liquor appeal board lacked sufficient independence. The BC Court of Appeal
concluded that members of the Board lacked the necessary guarantees of independence required of administrative
decision makes imposing penalties and set aside the Board’s decision.
Issue: Whether members of the Liquor Board are sufficiently independent to render decisions on violations of the Act
and impose the penalties it provides.
Holding: The appeal should be allowed and the matter remitted to the BC Court of Appeal to decide the issues which
it did not address.
Reasoning:
Absent constitutional constraints, the degree of independence required of a particular government decision maker or
tribunal is determined by its enabling statute. The statute must be construed as a whole. When the legislation is silent
or ambiguous, the courts generally infer the intent of Parliament or the legislature to determine whether the tribunal’s
process comports with principles of natural justice.
There is a fundamental distinction between administrative tribunals and courts. Superior Courts, by virtue of their
inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional
independence. This also applies to provincial courts. Administrative tribunals lack this constitutional distinction from
 16
the executive. They are created to implement government policy. While tribunals may sometimes attract Charter
requirements of independence, as a general rule, they do not.
Where the intentional of the legislature, as here, is unequivocal, there is no room to import common law doctrines of
independence. Nor is a constitutional guarantee of independence implicated here. The Board is not a court, nor does
it approach the constitutional role of the courts. It is first and foremost a licensing body. Licenses can be suspended
for non-compliance. That is what they did. The exercise of power here at issue falls squarely within the executive
power of the provincial government.
Class Notes:
Clear case of the common law of natural justice butting up against legislation – to the detriment of common law
entitlement.
Regis 1996: institutional independence could apply in administrative tribunals based on s. 23 of the Quebec Charter,
a quasi-constitutional statute. Distinguished from this case by saying that all you need to do is look at legislative
intent.
Tension between the judges respecting parliamentary sovereignty and the body governing the way these
administrative tribunals are supposed to run. Administrative tribunals are an arm of the executive branch and therefore
merely enforces the statutes enacted by the executive. Independence does not play a role because they do not need to
be independent from the executive. That is the role of the judiciary.

Authorson v. Canada (AG) [2003] 2 SCR 40

Facts:
Authorson (the respondent) represented a class of disabled veterans were received pensions and other benefits from
the Crown under three different statutes. These funds were administered by the Department of Veterans Affairs
(DVA) because the veterans were deemed incapable of managing their money. In 1990, the DVA began paying
interest on the accounts but Parliament chose to limit the Crown’s liability for past interest by enacting s. 5.1(4) of
the Department of Veterans Affairs Act. The class sued the crown, alleging breach of fiduciary duty and claiming that
the s. 5.1(4) bar was inoperative under the Canadian Bill of Rights, because it was inconsistent with the right not to
be deprived of the enjoyment of property except by due process (s. 1(a)) and the right to a fair hearing (principles of
fundamental justice – s. 2(e)).
The Ontario Superior Court held that the Crown owed a fiduciary duty to the disabled veterans, and so was obliged
to either invest the funds on their behalf, or pay interest, and that s. 5.1(4) of the Act was inoperative under the Bill of
Rights. The Court of Appeal upheld the decision.
Holding: The appeal should be allowed. Judgement in favour of the AG.
Reasoning:
Where federal legislation conflicts with the protections of the Bill of Rights, unless the conflicting legislation expressly
declares that it operates notwithstanding of the Bill of Rights, the Bill of Rights applies and the legislation is
inoperative. The Bill of Rights protects only rights that existed in 1960, prior to its passage.
Section 5.1(4) of the Act is not inconsistent with either s.1(a) or s.2(e) of the Bill of Rights and the veterans were
lawfully denied interest on their pension and other benefits. The due process protection in s. 1(a) do not require that
the veterans receive notice and a hearing before Parliament prior to the passage of expropriative legislation. The right
of due process is not at issue in this case. No adjudicative procedure is necessary for the nondiscretionary application
of a law to incontestable facts.
The Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation.
Parliament has the right to expropriate property, even without compensation, if it has made its intention clear and, in
s. 5.1(4), Parliament’s expropriative intent is clear and unambiguous.
Section 2(e) of the Bill of Rights applies only to guarantee the fundamental justice of proceedings before any tribunal
or administrative body that determine individual rights and obligations. It does not impose on Parliament the duty to
provide a hearing before the enactment of legislation.
Class Notes:
It pits clear legislation against a common law right – an equitable right that disabled veterans are said to have had.
They succeeded in convincing the Superior Court judge that the Crown had an equitable fiduciary duty towards the
veterans. The Crown argued that they amending the Veteran’s Affairs Act – included a provision that disallowed the
veterans from claiming a right on past action. This provision expropriated this money.
The court said that ss. 1(a) and 2(c) provide guarantees only in matters of adjudication, not the law-making authority
of parliament – parliamentary sovereignty.
 17
This is the big difference between the duty of procedural fairness and the duty to consult under s. 35 of the Constitution
(aboriginal rights for aboriginal peoples, not individuals) – that goes to administrative and legislative acts. Before the
legislator can enact any law, they must consult with aboriginals – joint management.

Limitation on the Scope of the Duty: Legislative and Policy Decisions

The non-application of principles of procedural fairness to legislative-type functions and the private law exception.

Readings
Chapter 5, From Natural Justice to Fairness; pp. 155 - 62
Canada (Attorney General) v Inuit Tapirisat [1980]
Reference Re Canada Assistance Plan (B.C.) [1991] (headnote)
Dunsmuir v. New Brunswick [2008] (read just the headnote and the paragraphs on procedural fairness)

Class Notes
Procedural Fairness – exceptions
Legislative/policy decision
- Inuit Tapirisat
- Reference re: Canada Assistance Plan
Employment Contract
- Dunsmuir

Chapter 5, From Natural Justice to Fairness, pp. 155-162

Limitations on the Application of the Duty of Fairness
The Duty Applies to Decisions
The duty of fairness applies only in contexts in which decisions may be made. In principle, it does not apply to
investigations or advisory processes. This is so because the imposition of fairness duties at a preliminary stage may
well compromise the relevant processes.
The Duty Does Not Apply to Legislative Decisions
According to the SCC, the duty of fairness does not apply to legislative decisions or functions. In Re Canada
Assistance Plan (BC), the Court said that “the rules governing procedural fairness do not apply to a body exercising
purely legislative functions.” It is except from the duty of fairness because any meaningful conception of a separation
of powers between the legislature and the courts demands it.
In Wells v. Newfoundland, the Court rejected Wells’s argument that he should have been accorded procedural fairness
because “legislative decision making is not subject to any known duty of fairness. Legislatures are subject to
constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see
fit. The wisdom and value of legislative decisions are subject only to review by the electorate.”
In Authorson v. Canada (AG), the SCC rejected the notion that the Canadian Bill of Rights established due process
procedures with regard to the passage of legislation. “The only procedure due any citizen of Canada is that proposed
legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent.”
The idea of exemption by category is problematic, because it recalls the long-discredited distinction between the
administrative and judicial or quasi-judicial decisions.
Are Cabinet and Ministerial Decisions Covered by Legislative Exemption?
They are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet and
ministerial decisions as legislative in nature and, as a result, they will be exempted from the duty. In Canada
v. Inuit Tapirisat, Justice Estey considered the Cabinet’s power to be legislative in nature: “legislative action
in its purest form.” The courts are understandably wary of scrutinizing the decisions of the executive branch
of government, even for limited procedural purposes. The potential for conflict is great.
Is Subordinate Legislation Covered by the Legislative Exemption?
Subordinate legislation is made pursuant to executive authority and democratic accountability may be
minimal. In general, the courts have not imposed procedural requirements on the subordinate law-making
function. There are exceptions, however. In Homex Realty and Development Co. v. Wyoming (Village), the
SCC concluded that passage of a municipal bylaw was subject to the duty fairness because it was clear that
 18
the village’s motivation for passing the bylaw was an ongoing dispute it had with a particular developer.
Substance is more important than form where the legislative exemption is concerned.
Are Policy Decisions Covered by the Legislative Exemption?
The legislative exemption includes decisions that may be described as “policy” decisions as well as decisions
that are general in nature. In Martineau v. Matsqui, Justice Dickson observed that “[a] purely ministerial
decision, on broad grounds of public policy, will typically afford the individual no procedural protection.” In
Knight v. Indian Head School Division, Justice L’Heureaux-Dubé noted that many administrative bodies have
been required to assume duties traditionally performed by legislatures, and distinguished “decisions of a
legislative and general nature” from “acts of a more administrative and specific nature.”
The difficulty in identifying a policy decision creates inconsistent decisions. If a court does not want to
interfere in a particular case, it can characterize a decision as a policy decision.
The Duty Does Not Apply to Public Office Holders Employed Under Contracts
The court overruled its earlier approach in Nicholson and Indian Head School. In Dunsmuir, it held that the law will
no longer draw a distinction between public office holders and other employees in dismissal cases. If the terms of an
individual’s employment are governed by contract, then ordinary private law contractual remedies will apply in the
event if his dismissal.
The Duty May be Suspended or Abridged in the Event of an Emergency
The duty of fairness establishes duties that must be observed before a decision can be made. In an emergency situation,
however, compliance with the duty of fairness may be suspended until after the required decision has been made.
Deference to decision-makers? Care must be taken to ensure that public authorities are not overzealous in
apprehending urgent or emergency circumstances.

Canada (Attorney General) v. Inuit Tapirisat [1980] 2 SCR 735

Facts:
In 1976, Bell applied to increase their rates. The CRTC had authority to determine whether rate increases are fair “as
a question of fact” under the Railway Act. Inuit Tapirisat (IT) intervened to the CRTC to oppose part of Bell’s
application. The CRTC said no. IT then had the choice of appealing to the Federal Court of Appeal on a question of
law or jurisdiction, or filing with the Governor in Council (GIC) to vary or rescind the order – the chose the GIC.
The GIC had discretion to vary or rescind such orders by the CRTC (s. 64). There were alleged shortcomings with
the GIC process: the GIC didn’t tell IT the substance of material received from the Minister of Communications; the
GIC denied the petitions of IT before it had filed its responses to Bell and; there was no oral hearing.
Issue: Does the GIC have a duty to observe natural justice, or even a duty of fairness, when reviewing regulatory
decisions? NO.
Reasoning (Estey J):
The court must look at the statutory provisions for procedural requirements that Cabinet must observe to provide
notice to groups such as IT. The statute delegates to CRTC the function of approving rate hikes with directives on
standards to be applied. Secondary delegation of this function is to the GIC, but without any standards or guidelines
to follow in exercise of its rate review function. There are also no procedural standards imposed or even implied. “The
discretion of the GIC is complete provided he observes the jurisdictional boundaries of s. 64(1).
This doesn’t meant that the court wouldn’t intervene if “conditions precedent to the exercise of power so granted to
the executive branch have not been observed.” (e.g. if the GIC did not look at the contents of a petition at all)
The fact that there were oral hearings for similar cases in the past is not legally relevant – government operations and
the population were much smaller back then  it would be unwise for the courts to make a rigid rule to this effect.
It is true that a duty to observe procedural fairness need not be express, but it will not be implied in every case.
The Cabinet’s decision to give IT a hearing is not an obligation, it is discretionary. This is because the Cabinet
is at the high end of the policy-making spectrum.
The statute gives the GIC complete discretion provided it observes it jurisdictional boundaries. This means that there
is no need to hold any kind of hearing or even acknowledge the receipt of a petition.
 19
Reference Re Canada Assistance Plan (B.C.) SCC [1991]
Facts:
The federal government had a cost-sharing agreement with the provinces (including BC). The agreement could be
amended or terminated by consent, or terminated with one year’s notice by either party. Subsequently the federal
government introduced legislation reducing the amount it would have to pay. BC referred the question of whether the
province had a legitimate expectation that the federal government would not introduce legislation to limit its
obligations without the province’s consent.
Reasoning (Sopinka):
There is no support for the position that the doctrine of legitimate expectations creates substantive rights (i.e. the right
to veto the proposed legislation obtained without provincial consent). The doctrine of legitimate expectation is part
of the rules of procedural fairness which can govern administrative bodies. They can create a right to make
representations or be consulted, but it does not fetter the decision afterward. Also, procedural fairness doesn’t apply
to bodies exercising purely legislative functions. A purely ministerial decision, on broad grounds of public policy,
will typically afford the individual no protection, and any attack upon such a decision will have to be founded upon
abuse of discretion.
Refutation of other arguments:
The argument that the executive can be stopped from introducing the bill to Parliament is invalid.
The argument that a constitutional convention exists to prevent this is irrelevant, since constitutional conventions only
relate to the question as an aspect of legitimate expectations.
Class Notes:
The agreement could not be intended to tie the hand of subsequent parliaments.
Legitimate expectations: if a member of the executive makes some kind of representation to you, then you may be
entitled to greater procedural fairness than you otherwise would have been entitled to. Helps you get over the threshold
issue. Where some duty of procedural fairness applies, legitimate expectations gives you more procedural fairness.
Doesn’t give you a substantial outcome.

Dunsmuir v. New Brunswick [2008] – headnote & procedural fairness

Facts:
D was an office holder “at pleasure” in the DOJ. His probationary period was extended twice and the employer
reprimanded him on three separate occasions during the course of his employment. On the third occasion, a formal
letter of reprimand was sent to D warning him that his failure to improve his performance would result in further
disciplinary action up to and including dismissal. The employer concluded that D was not right for the job, and he
was sent a letter of termination. Cause for the termination was not explicit and D was given 4 months’ may in lieu of
notice. Under s. 100.1 of the Public Service Labour Relations Act (PSLRA), D alleged that he did not receive a
reasonable opportunity to respond to the concerns, that the termination was without notice, due process or procedural
fairness, and that the length of the notice period was inadequate.
Judicial History: The adjudicator found that, since D’s employment was hybrid in nature, he was entitled to and did
not receive procedural fairnes. D was ordered reinstated.
On judicial review, the Court of Queen’s Bench applied the correctness standard, quashed the reinstatement order but
upheld the adjudicator’s provisional award of eight months’ notice. The court found that D had received procedural
fairness because of the grievance hearing before the adjudicator.
The Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator’s authority
under the PSLRA was reasonableness simpliciter, not correctness, and that the adjudicator’s decision was
unreasonable. It found that where the employer elects to dismiss with notice or pay in lieu of notice, s. 97(2.1) of
the PSLRA does not apply and the employee may only grieve the length of the notice period. It agreed with the
reviewing judge that D’s right to procedural fairness had not been breached.
Issues: (1) What is the proper standard of review to be taken in judicial review?
(2) Did the appellant, who held an office “at pleasure”, have the right to procedural fairness in the employer’s
decision to terminate him?
Held: The appeal should be dismissed.
Reasoning:
Headnote:
There is no actual difference between patent unreasonableness and reasonableness simpliciter. There ought to be only
two standards of review: correctness and reasonableness.
 20
Correctness standard: with respect of jurisdictional and some other questions of law, a reviewing court will not show
deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and
decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view
and provide the correct answer.
Reasonableness standard: concerned mostly with the existence of justification, transparency and intelligibility within
the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative
choices to leave some matters in the hands of administrative decision makers.
If there is a privative clause, this is a strong indication that the standard should be reasonableness and the
administrative decision maker should be given greater deference. But this is not determinative. Where the question is
one of fact, discretion or policy, or where the legal issue is intertwined with and cannot be readily separated from the
factual issue, deference will usually apply automatically. Deference will usually result where a decision maker is
interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. A
question of law that is of central importance to the legal system as a whole and outside the specialized area of expertise
of the administrative decision maker will always attract a correctness standard.
The standard of reasonableness applied on the issue of statutory interpretation. Here, the adjudicator’s interpretation
of the law was unreasonable.
On the merits, D was not entitled to procedural fairness. Where a public employee is employed under a contract
of employment, regardless of his or her status as a public office holder, the applicable law governing his dismissal is
the law of contract, not general principles arising out of public law. Where a dismissal decision is properly within
the public authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law
purpose for imposing a duty of fairness.

Procedural Fairness [paras. 77-111]

Duty of Fairness: “the concept of procedural fairness is eminently variable and its content is to be decided in the
specific context of each case” (Knight, at p. 682; Baker at para. 21).
To what extent is a duty of fairness applied to the dismissal of a public employee pursuant to a contract of
employment? The grievance adjudicator concluded that the appellant had been denied procedural fairness because he
had not been granted a hearing by the employer before being dismissed with four months’ pay in lieu of notice [80].
This conclusion comes from the Court’s decision in Knight, which held that the holder of an office “at pleasure” was
entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed.
“In our view, what matters is the nature of the employment relationship between the public employee and the
public employer. Where a public employee is employed under a contract of employment, regardless of his
or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract,
not general principles arising out of public law.”
Procedural Fairness in the Public Employment Context: Ridge v. Baldwin and Nicholson established that a public
employee’s right to procedural fairness depended on his status as an office holder. There is a distinction between
office holders and contractual employees which affects the determination as to whether a duty of fairness is owed. In
practice, this distinction is difficult to maintain. There is no simple test to determine whether a job can be classified
as an ‘office’.
In our view, the existence of a contract of employment, not the public employee’s status as an office
holder, is the crucial consideration. Where a public office holder is employed under a contract of
employment the justifications for imposing a public law duty of fairness with respect to his or her
dismissal lose much of their force.
 21
The Content of the Duty of Fairness
What is the content of the duty of fairness? To receive notice; to know the basis of the decision; a right to make
representations; to know the case to be met; to have an impartial decider; to receive reasons; to have legitimate
expectations met. To whom is the duty owed? What is the intensity of the duty?

Readings
Chapter 5, From Natural Justice to Fairness; pp. 162 - 182
Baker v. Canada (Minister of Citizenship and Immigration) [1999] (section on procedural fairness, including
duty to give reasons and bias)
Newfoundland Nurses [2011] 3 S.C.R. 708
An Act respecting Administrative Justice (extracts on MyCourses)

Class Notes
Impartiality/Reasonable Apprehension of Bias:
The judge/arbitrator

Participatory Rights:
Refer to rights to participate in the decision-making procedure.
Baker test: notice, submissions, disclosure, counsel, cross-examination witnesses, oral hearings. There are other smaller
rights and entitlements but these are the main ones to fight for. Disclosure (discovery in civil cases) is considered the
most important participatory right.
How do you figure out which rights are applicable in any given case? Baker provides this test – 5 considerations (non-
exhaustive).

Duty to Give Reasons

Chapter 5, From Natural Justice to Fairness; pp. 162 - 182

The Content of the Duty of Fairness
Fairness requires compliance with some, but not necessarily all, of the requirements of natural justice. Fairness is a
minimum duty that must be met.
Baker v. Canada (Minister of Citizenship and Immigration):
Baker sought judicial review of the minister’s decision to deport her – arguing that the minister failed to observe the
requirements of the duty of fairness. She argued that she should have been granted an oral interview; that her children
and the fathers of her children be given notice of the interview; and that the fathers should have been given permission
to attend the interview. She also argued that she was entitled to reasons for the minister’s decision.
The SCC held that Baker was entitled procedural fairness protection but an oral hearing was not required.
The Baker Synthesis:
1. The nature of the decision being made and the process followed in making it: e.g. greater procedural
protection is likely to be required in an adjudicative context than a regulatory one.
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: e.g. the
existence of a right of appeal is an important consideration in deciding whether and to what extent reasons
for a first level decision are required.
3. The importance of the decision to the individual or individuals affected: “a high standard of justice is required
when the right to continue in one’s profession or employment is at stake.” (Dickson, J. in Kane v. Bd. Of
Governors of UBC).
4. The legitimate expectations of the person challenging the relevant decision: may extend the content of the
duty of fairness on the basis of the conduct of public authorities in particular circumstances. E.g. a person
might be led to understand that he or she will be afforded particular procedural protection, even though that
level of protection would not otherwise be required. That person may have legitimate expectation that they
will be afforded a certain amount of procedural fairness. (Akin to promissory estoppel)
5. The choices of procedure made by the agency itself: the procedural choices made by the decision-maker must
be taken into account in determining the requirements of the duty of fairness.
Specific Components of the Duty of Fairness
 22
1. Notice: the starting point for participation in any decision-making process. “Notice must be adequate in all
circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments,
and to respond to those presented in opposition.”
2. Disclosure: the duty of procedural fairness generally requires that the decision-maker discloses the
information he or she relied upon. The requirement is that the individual must know the case he or she has to
meet. In administrative proceedings, the question is not whether disclosure is required, but how much
disclosure is required.
3. Oral Hearings: often demanded, seldom required. They are not usually necessary to reach an informed
decision on an administrative matter. There are good reasons for not granting them: cost, delay. It depends
on the relevant circumstances. E.g. where a decision depends on findings of witness credibility.
4. Right to Counsel: There is no right to counsel in the context of administrative proceedings. The constitutional
protection to counsel under s. 10(b) of the Charter extends only to circumstances of “arrest or detention” (BC
v. Christie) Representation by counsel is usual in the context of oral hearings.
5. Right to Call Evidence and Cross-Examine Witnesses: normally part of the right to an oral hearing, which
is not an absolute right. Administrative actors control their own procedures and may limit the exercise of the
right.
6. Timeliness and Delay: Administrative decision-makers are not usually under specific statutory timelines for
holding hearings or making decisions. There is also no charter right to have an administrative matter heard or
determined within a reasonable time. S. 11(b) applies only to persons charged with an offence.
7. The Duty to Give reasons: Historically, there was no duty on administrative decision-makers to give reasons.
That changed with Baker: “…it is now appropriate to recognize that, in certain circumstances, the duty of
procedural fairness will require the provision of a written explanation for a decision.” Two such
circumstances: (1) if a particular decision has “important significance” for an individual; and (2) if a statutory
appeal process exists to facilitate the workings of that process. Baker contemplates flexibility in complying
with the duty to give reasons. The requirement is to provide “some form of reasons”, which may vary in
length and formality.
Two main concerns: (1) there may be a failure to provide reasons in circumstances in which a court concludes
that reasons were required; (2) questions may arise as to the adequacy of the reasons in particular
circumstances – inadequate reasons can be tantamount to no reasons at all. What is the quality of reasons
provided? This is a matter for substantive review, not procedural review.
In Newfoundland Nurses, the court emphasized that reasons need not be provided in all cases and that the
requirement to provide reasons is very low: if there are reasons provided, there is no breach of the duty of
fairness. Any challenge to the reasoning of the decision should therefore be made within the reasonableness
analysis.
Judicial Review of the Duty of Fairness
The requirements of the duty of fairness are independent of the merits of the substantive matter in issue and that
breach of the duty voids a decision. “The denial of a right to fair hearing must always render a decision invalid… The
right to a fair hearing must be regarded as an independent, unqualified right…” (Cardinal, 1985)
Historically, compliance with the duty of fairness has been regarded as a jurisdictional question and, as such, a
question that must be answered correctly – yes or no. Violation of the duty of fairness will not result in the imposition
of a substantive outcome by the court. A successful application for judicial review on fairness grounds will result in
an order quashing a decision and requiring it to be made anew.
 23
Baker v. Canada (Minister of Citizenship and Immigration) (section on procedural fairness, including duty to
give reasons and bias) [1999]
Facts:
After Mavis Baker was ordered deported, applied for permanent residency. Normally, applications for permanent
residency would be made outside the country, but an exemption may be made under s. 114(2) of the Immigration Act
where “the Minister is satisfied” that “humanitarian and compassionate considerations” justify such an exemption.
She submitted written documentation, but there was no oral hearing. Baker’s application was denied, in a letter signed
by Immigration Officer Caden, on the basis that there were insufficient humanitarian and compassionate grounds. No
reasons were given. However, Baker’s lawyer got the notes of Officer Lorenz
Issues:
Were the principles of procedural fairness violated in this case?
1. Can an appeal court address issues other than the certified question, as per s. 83(1) of the Immigration Act?
2. Was there procedural fairness in this case?
3. Was the “humanitarian and compassionate grounds” decision, as a substantive matter, made improperly in
this case? Was the decision in this case “unreasonable”?
Holding:
1) Yes. 2) No. Claimant did have opportunity to present case and was provided with reasons, but there was reasonable
apprehension of bias. 3) Yes, the failure to give serious weight and consideration to the interests of the children
constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important
deference that should be given to the decision of the immigration officer.
Reasoning (L’Heureux-Dube J.):
Existence of a duty of fairness:
Both parties agree that a duty of fairness applies to humanitarian and compassionate (H&C) decisions – long
recognized in case law that a duty of fairness applies to H&C decisions
Triggered by two factors:
1. The decision is administrative
2. It affects “the rights, privileges, or interests of an individual” (Cardinal)

Factors affecting the content of the duty of fairness:

The “concept of procedural fairness is eminently variable and its content is to be decided in the specific context of
each case” based on all the circumstances. (Knight) The purpose of participatory rights is to ensure administrative
decisions are made using a fair and open procedure, appropriate to the context, with an opportunity for those affected
by the decision to put forward their views and have them considered by the decision-maker.
Specific factors (not exhaustive):
Nature of decision being made and the process followed in making it 
Brought back the distinction test that had been cast aside in Nicholson – the distinction between administrative
decisions (dealing with regulations and polycentricity) and judicial and quasi-judicial decisions. The more a
decision is like a judicial decision, the more procedural protections apply (Baker). The more discretion is
involved, the less procedural fairness applies (Baker). The more factors need to be considered, the less
procedural fairness applies (Baker). If the decision is an exception to general principles, less procedural
fairness applies (Baker).
Nature of statutory scheme and the terms of the statute pursuant to which the body operates 
If final (i.e. no appeal procedures), then greater safeguards. If preliminary, less.
Importance of the decision to the individual(s) 
Holds true whether the matter affected is a right, an interest, or a privilege. Includes right to consider one’s
profession or employment (Kane).
Legitimate expectations of the person challenging the relevant decision 
If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be
required by the duty of fairness. If the claimant has a legitimate expectation that a certain result will be reached
in her case, fairness may require more extensive procedural rights than would otherwise be accorded.
(However, does not confer any substantive rights)
Deference to the procedural choices made by the decision-maker 
 24
Particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency
has an expertise in determining what procedures are appropriate in the circumstances (Brown and Evans). [Not clear
how decisive this consideration is in practice– we only know that “important weight” must be given to it (Baker)]

Application to the case at bar:

Was there a legitimate expectation on the part of Baker that an augmented duty of fairness would apply, based
on the Convention and the fact that Canada ratified it?
No – not the equivalent of a government representation about how H&C applications will be decided (thus
Factor 4 does not apply)
Was the failure to provide an oral hearing and give notice to Baker and her children a breach of PF?
Question is whether those whose interests were affected had a meaningful opportunity to present their case
fully and fairly.
Nature of the decision: H&C decisions are very different from judicial decisions, since they involve considerable
discretion and involve the consideration of multiple factors. Also, exception to a general rule  both point to less
procedural fairness.
Nature of the statutory scheme: No appeal provision, although judicial review may be applied for with leave of the
Federal Court.
Importance of the decision to the individual: Exceptionally important to the claimant and her close family.
Deference to procedural choices made by the decision maker: Significant, but not determinative.

Some factors pointing each way – on balance, duty of fairness owed is not “minimal”, but requires “a full and fair
consideration of the issues”, and claimant and others affected must have a meaningful chance to prevent evidence and
have it fully considered. However, an oral hearing is not a general requirement for H&C decisions. In this case, Baker
had a chance to put forward evidence in writing  oral hearing not a requirement  duty of PF not violated.

Was the failure to provide reasons a breach of PF?

Pros of reasons:
The writing of reasons may help to foster better decisions. Applicants are more likely to feel they’ve been
treated fairly. Invaluable if case is appealed or under judicial review.
Cons of reasons:
May impose inordinate burdens on administrative decision-makers (Osmond). May also produce a lack of
candor in decision-makers.
Reasons should be required (non-exhaustive):
In cases where the decision has important significance for the individual (as in this case)
In cases where there is a statutory right of appeal
The reasons requirement was met in this case by Officer Lorenz’s notes, which were given to her when her counsel
asked for reasons. Because there is no other record of the reasons for making the decision, the court can infer that
these were the reasons.
In an administrative context, the right to transparency can be met in various ways  this provides needed flexibility

Newfoundland Nurses’ Union v. Newfoundland and Labrador (Treasury Board) [2011] 3 S.C.R. 708
Facts:
The union disputed an arbitrator’s award which involved the calculation of vacation benefits. The issue the arbitrator
had to decide was whether time as a casual employee could be credited towards annual leave entitlement if that
employee became permanent. In his decision, the arbitrator concluded that it was not to be included in calculating the
length of vacation entitlements. On judicial review, the arbitrator’s reasons were found to be insufficient and therefore
unreasonable and the decision was set aside. The majority of the Court of Appeal agreed with the arbitrator.
Issues: Whether the arbitrator’s reasons in this case satisfied the criteria of “justification, transparency and
intelligibility” and whether the reasons engaged procedural fairness.
Held: The appeal should be dismissed.
Reasoning (Abella J.):
According to Dunsmuir, when determining whether a decision is reasonable, the inquiry for reviewing a court is about
“justification, transparency and intelligibility”. In the collective agreement, casual employees are expressly excluded
from a number of benefits, including the vacation entitlement calculations applicable to permanent employees.
 25
On judicial review, the chambers judge was of the view that such a review is based not only on whether the outcome
falls within the range of possible outcomes, in accordance with Dunsmuir, but also requires that the reasons set out a
line of analysis that reasonably supports the conclusion reached.
Dunsmuir: “In judicial review, reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. It is an unhelpful
elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of
the duty of procedural fairness. Any challenge to the reasoning/result of the decision should be made within the
reasonableness analysis. Here, the reasons showed that the arbitrator was alive to the question at issue and came to a
result well within the range of reasonable outcomes.

An Act respecting Administrative Justice

2. The procedures leading to an individual decision to be made by the Administration, pursuant to norms or standards
prescribed by law, in respect of a citizen shall be conducted in keeping with the duty to act fairly.
4. The Administration shall take appropriate measures to ensure:
(1) that procedures are conducted in accordance with legislative and administrative norms or standards and
with other applicable rules of law, according to simple and flexible rules devoid of formalism, with respect,
prudence and promptness, in accordance with the norms and standards of ethics and discipline governing its
agents and with the requirements of good faith;
(2) that the citizen is given the opportunity to provide any information useful for the making of the decision
and, where necessary, to complete his file;
(3) that decisions are made with diligence, are communicated to the person concerned in clear and concise
terms and contain the information required to enable the person to communicate with the Administration;
(4) that the directives governing agents charged with making a decision are in keeping with the principles and
obligations under this chapter and are available for consultation by the citizen.
 26
Impartial Decision-Making
Analysis of independence and impartiality in administrative settings.

Readings
Chapter 8, Tribunal Independence, Impartiality, and Bias; pp. 233-276
Ocean Port (review)

Chapter 8, Tribunal Independence, Impartiality, and Bias; pp. 233-276

Sources of the Guarantee of an Independent and Impartial Tribunal
Stems from the common law, and from constitutional or quasi-constitutional principles. Two central ideas of natural
justice in the common law: (1) a decision-maker should neither judge his own cause nor have any interest in the
outcome of a case before him (nemo judex in sua causa debet esse); (2) the decision-maker must hear and listen to
both sides of the case before making a decision (audi alteram partem).
Some have argued, with limited success, that the promise of an independent and impartial administrative tribunal is
also guaranteed by unwritten constitutional principles and the rule of law. A determination by an independent and
impartial tribunal is guaranteed in some cases through the Charter.
– Canadian Charter s. 7: “Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.”
– Canadian Charter s. 11(d): “Any person charged with an offence has the right … to be presumed innocent
until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.”
– Quebec Charter s. 23: “Every person has a right to a full and equal, public and fair hearing by an independent
and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought
against him.
– Bill of Rights s. 1(a): “The right to the individual to life, liberty, security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law; 2(e) No law of Canada shall
be construed or applied so as to … deprive a person of the right to a fair hearing in accordance with the
principles of fundamental justice for the determination of his rights and obligations.”
– Alberta Bill of Right s. 1(a): “the right of the individual to liberty, security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law.
What is “Tribunal Independence” and Why is it Important?
Administrative decision-making bodies have been created in a way that leaves them connected to government. Given
the political nature of the executive branch of government, the general public may be wary that inappropriate
interference may stem from the regular interactions between government departments and tribunals.
When we speak of “independence”, we are referring to the tribunal’s ability to decide matters free of inappropriate
interference or influence. E.g. executive branch, litigants, other tribunal members, staff, etc. In the context of the
administrative state, the difficulty arises in determining what constitutes “relevant” considerations or “inappropriate”
interference.
The Development of the Law of Tribunal Independence in Canada
Three waves of jurisprudence on tribunal independence in Canada:
1. Independence of the judiciary as a foundation
2. Ocean Port Hotel – there is no general constitutional guarantee of independence where tribunals are
concerned.
3. Retrenchment: push to have judicial declarations that administrative tribunal independence is guaranteed by
the Constitution.
Laying the groundwork: the theory of judicial independence
Judicial independence is a means of insuring that judges act free from any interference or influence. Dickson CJ: “the
complete liberty of individual judges to hear and decide cases.” What does “complete liberty” mean? Three structural
conditions for guaranteeing independence from government: (1) security of tenure; (2) financial security; and (3)
administrative (or institutional) control.
Security of Tenure: guaranteed by the constitution. A judge can only be removed for cause. Superior courts
shall hold office during good behavior or until they reach the age of 75. Judges must also be provided with
an opportunity to respond to allegations against them before removal.
 27
Financial Security: two goals  to guarantee that the government will not alter their pay for arbitrary reasons
such as discontent; a promise that the amount that judges are paid will be sufficient to keep them from seeking
alternative means of supplementing their income.
Administrative Control: the manner in which the affairs of the court are administered – from budgetary
allocations to the assignment of cases.
These three conditions aim to make sure that judges are not put in compromising situations where they might choose
to make decisions to protect their own employment and interests.
Adjudicative independence: independence from interference in deliberations. It deals with relational matters
and the internal process of deliberation by individual decision-makers. Frequently called into question in the
administrative state.
The purpose of judicial independence is to help boost public confidence in the justice system. Independence is said
to be maintained in order to provide an appearance of impartiality in the decision-making process.
From judicial independence to tribunal independence
Litigants have pushed for tribunals to be held to the same degree of independence as courts, arguing that the various
constitutional safeguards (ss. 7, 11(d) of the Charter) and quasi-constitutional provisions (s. 23 of the Quebec Charter
and the Canadian Bill of Rights) guarantee tribunal independence.
Test for tribunal independence: whether a reasonable, well-informed person would conclude that an administrative
decision-maker is sufficiently free of factors that could interfere with his ability to make impartial judgments. This is
a less strict standard than the standard for judicial independence. “The test for institutional independence must be
applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional
independence will depend on the nature of the tribunal, the interests at stake, and other indices of independence such
as oaths of office.” (Canadian Pacific v. Matsqui Indian Board)
Administrative actors are not required to hold office for life (Regie des permis d’alcool). They must not, however, be
able to be dismissed at the pleasure of the executive branch of government. They could also contest any dismissals in
court.
Ocean Port Hotel
The court attempted to lay to rest the issue of whether “at pleasure” appointments provide a satisfactory degree of
independence for decision-makers sitting on tribunals that impose penalties. On appeal to the Supreme Court, Ocean
Port Hotel argued that the Liquor Appeal Board, as an administrative tribunal exercising adjudicative functions,
required the same degree of independence guaranteed to the courts. They argued that, as an unwritten, constitutional
principle, judicial independence should be interpreted to extend to administrative tribunals as well.
The Supreme Court disagreed. They held that there is no freestanding constitutional guarantee of administrative
tribunal independence. Administrative tribunals are not separate from the executive and are created precisely for the
purpose of implementing the policies of the executive branch. It is up to Parliament, therefore, to determine its
structure, responsibilities, and degree of independence required of any particular tribunal. The will of the legislature
should prevail in determining how much independence any given tribunal should have.
Tribunal independence is a common-law principle of natural justice, and the degree of independence at common law
could be ousted by express statutory language or necessary statutory implication, so long as the statute is
constitutionally valid. As a general rule, administrative tribunals do not attract Charter or quasi-constitutional
requirements of independence. However, by the nature of their work, some tribunals may be subject to these
protections.
Reasserting the push for independence: unwritten constitutional principles, tribunal independence, and the rule of law
The third wave of tribunal independence jurisprudence is marked by litigants reasserting a push for tribunals to have
the same independence as courts.
The petitioner in McKenzie argued that, because several other courts seemingly on the outer edge of the
judiciary had been deemed to attract unwritten constitutional guarantees of independence, residential tenancy
arbitrators, because of the nature of their work, should also attract such guarantees. The BC Supreme Court
held that judicial independence should apply to residential tenancy arbitrators as well.
Although some argue for judicial independence for “purely adjudicative” administrative decision-making bodies,
what about administrative bodies endowed with both adjudicative and policy-making functions? Can any tribunal be
said to be purely adjudicative?
The appointment and removal process: institutions, ideologies, and institutional culture
To what extent is it acceptable for a tribunal to reflect a particular ideology? And when, if ever, is it feasible for a
government to appoint members who reflect certain political values? Is it ever possible to make appointments that
completely evade political thought or ideology?
 28
Reasonable Apprehension of Bias
The rule against bias contributes to the maintenance of public confidence in the administration of justice by ensuring
that decision-makers are not reasonably perceived to be deciding matters that will benefit them or those with whom
they have significant relationships. It seeks to avoid partiality that will result in negative treatment of a party resulting
from the decision-maker’s interests and relationships. And it serves to prevent decision-makers from making decisions
based on factors that are irrelevant to the decision-making process.
Two major forms of reasonable apprehension of bias in administrative law:
1) Perceptions of individual bias – the impartiality of individual decision-makers;
2) Perceptions of institutional bias – whether reasonable perceptions of partiality regarding the decision-
making body as a whole can be raised in a substantial number of cases.

The reasonable apprehension of bias test

The test for bias relies on perception. To have a decision quashed, it is sufficient that a reasonable person with an
informed understanding of how the tribunal functions perceives that the decision making is biased. The classic test
was formulated in the dissenting opinion of Justice De Grandpré in Committee for Justice and Liberty v. National
Energy Board:
“The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. That test is “what would an
informed person, viewing the matter realistically and practically – and having thought the matter through –
conclude.”
The grounds for the apprehension of bias must be substantial. A real likelihood or probability of bias should be
demonstrated. Mere suspicion is not sufficient.
The institutional aspect of bias was first recognized in Lippé, where the test was identified as determining whether
there could be “a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of
cases.”
The standard of bias varies, depending on context. The nature and context of the decision-making process drives the
content of procedural fairness, including what constitutes impartiality. Determining which procedural safeguards,
including the degree of independence and impartiality, are needed in any particular administrative context is a matter
of balancing several factors including the nature of the decision being made, the nature of the statutory scheme, and
the agency’s choice of procedures.
Perceptions of Individual Bias
Four situations in which a reasonable apprehension of bias may arise:
1. A pecuniary or material interest in the outcome of the matter being decided: The nemo judex maxim is
designed to prohibit an administrative actor from making decisions that advance his or her own cause. It is
more flexible when dealing with cases in which the financial interest is indirect, as opposed to direct. As a
general principle, the common law must cede to legislative will. Statutory authorization that allows for
indirect pecuniary benefit has prevailed over the common law rule against bias.
2. Personal relationships with those involved in the dispute: It is not only their relationships with the parties
that can be disqualifying. Significant relationships with counsel or witnesses, for example, must also be
considered. Does the relationship present a significant enough interest to affect the impartiality of the
decision-maker? Is the relationship current enough to reasonably pose a significant threat to impartiality?
3. Prior knowledge or information about the matter in dispute: Tribunals and courts on review will focus
on the nature and extent of the decision-maker’s previous involvement. More often, issues surrounding prior
knowledge arise when a tribunal adjudicator is asked to hear an appeal or a subsequent proceeding of an
original matter.
4. An attitudinal predisposition toward an outcome: Predispositions giving rise to a reasonable apprehension
of bias have been gleaned from decision-makers’ comments and attitudes in both the course of the hearing
and outside the proceedings. During the hearing, antagonism toward litigants, ex parte communications, and
irrelevant or vexatious comments as well as the adjudicator or any other member of the tribunal taking an
unauthorized role as an advocate to the proceeding before it, have all given rise to a reasonable apprehension
of bias.
Perceptions of Institutional Bias
Tribunals create policy in their day-to-day work through decision making, informal rule making through the use of
soft law, and formal rule making through delegated legislation. Policy making relates to the expertise possessed by
the tribunals that administer and further the law under a particular statute. There is often tension between the need for
 29
tribunal members to collaborate to further the law as an institution and the need to give each decision-maker space to
render his or her rightful decisions.

The Charter and Administrative Law: S. 7 Principles of Fundamental Justice

An analysis of the relationship between the s. 7 principles of fundamental justice and the common law duty of fairness,
and when and how the s. 7 principles are applied in administrative law decisions.

Readings
Chapter 12, The Charter and Administrative Law; pp. 407-419
Singh v. Minister of Employment and Immigration [1985]
Suresh v. Canada [2002] (section at end on procedural fairness)

Chapter 12, The Charter and Administrative Law; pp. 407-419

There is an emerging consensus that the Charter does not replace the common law, but rather embodies and
supplements fundamental legal principles contained within it.
Procedural Fairness and the Principles of Fundamental Justice
In addition to the duty of fairness that applies at common law, a duty of fairness may also be owed under the Charter.
The class of entities to which the Charter applies may be narrower than those captured by the common law duty of
fairness. Where the Charter does apply, the duties are considerable.
S. 7 of the Charter stipulates that “[e]veryone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice.” The presence of the principles
of fundamental justice within s. 7 has led to that section’s emergence as the primary source of procedural safeguards
within the Charter.
The complainant must cross the “threshold” of establishing that their “life, liberty or security” interests are impaired
by the relevant decision. If the affected individual cannot establish that an impugned decision touches a s. 7 interest,
procedural fairness may still be due, but as a matter of common law, or the Bill of Rights, rather than as a consequence
of s. 7 and the principles of fundamental justice.
Oral hearings and the scope of section 7
Singh v. Minister of Employment and Immigration established that the principles of fundamental justice include
procedural fairness. The statutory scheme at the time provided for the possibility of an oral hearing, but precluded the
IAB from granting an oral hearing to claimants who failed to set out “reasonable grounds”. Because the statutory
scheme excluded the possibility of an oral hearing in these cases, the common law of procedural fairness could not
“supply the omission of the legislature”.
Wilson J  “everyone” in s. 7 includes “every human being who is physically present in Canada.” Held that
s. 7 applied to Singh. Although he did not have a constitutional right to remain in Canada, he did have a
constitutional right to have his claim determined in accordance with the principles of fundamental justice.
Singh is an example of how review under the Charter can overcome clear legislation and is a foundational case in
Canadian immigration law. As a result of this case, the government established the Immigration and Refugee Board
to ensure that all refugee claimants received a fair hearing in accordance with the principles of fundamental justice.
Incorporation of the Common Law framework under section 7
Suresh v. Canada  the case was decided in Suresh’s favour because the minister had breached the s. 7 principles of
fundamental justice by failing to provide Suresh with adequate procedural safeguards and reasons for the decision.
Unlike the statutory provisions under scrutiny in Singh, s. 53(1)(b) of the Immigration Act did not require the minister
to adopt or follow any particular procedure. The officer recommended in a memorandum to the minister that she issue
an opinion under s. 53(1)(b) that Suresh constitutes a danger to Canada. Suresh did not have an opportunity to see or
respond to the officer’s memorandum.
Without the guidance of statute, the court turned to the Baker framework to assess the adequacy of the procedure. If
s. 7 is engaged, procedural requirements are likely to be very significant, but it does not follow that the common-law
analysis would not produce the same result.
The duty to disclose and the right to reply
The Court said that Suresh was entitled to disclosure “[s]ubject to privilege or similar valid reasons for reduced
disclosure, such as safeguarding confidential public security documents.” An ordinary statute can oust privilege
 30
because privilege is a doctrine of the common law. It seems to follow that a duty to disclose found in the principles
of fundamental justice could also reduce the effect of privilege.
The duty to give reasons
Baker established that decision-makers have a duty to give reasons whenever important interests are at stake. In
Suresh, the Court held that the minister herself must provide “responsive” reasons that demonstrate both that the
individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture.
Because the duty to give reasons is part of the duty of procedural fairness, court have traditionally reviewed it on a
standard of correctness.
The right to state-funded legal counsel
Procedural fairness does not necessarily entail a right to legal counsel even at one’s own expense. The SCC has held
that neither procedural fairness nor the rule of law in the administrative setting requires the state to fund legal
representation. In certain circumstances, where a decision impairs a s. 7 interest, the state must provide the individual
with legal counsel in order to satisfy the requirements of the principles of fundamental justice.
Undue delay
Bastarache J. speaking for the majority in Blencoe v. BC, acknowledged the possibility that an undue delay in the
resolution of a human rights complaint could infringe the security interest protected under s. 7. But the threshold is
very high, to the point of it being difficult to imagine a delay that could actually constitute an infringement of s. 7.

Singh v. Minister of Employment and Immigration [1985]

Facts:
Appellants asserted a claim to Convention refugee status. MEI determined they were not refugees (s.45); they applied
for redetermination (s.70), IAB refused applications to proceed on the basis that it didn’t believe that there were
“reasonable grounds to believe that a claim could, upon the hearing of the application, be established.” (s.71(1))
Minister argued that no person that is not a citizen, and no unqualified person, has a right to stay. Singh argues that
his status as a refugee implicates s.7, and particularly, security of the person and possibly life, by virtue of the prospect
of deprivation of security of the person by a third party (not Canadian gov’t). The appellants claim that they did not
have fair opportunity to present their claims or to know the case they had to meet.
Issue: Do procedures in the Immigration Act for the adjudication of the claims of persons claiming refugee status in
Canada deny claimants rights under s.7?
Holding: Yes.
Reasoning (Wilson J.):
The Court first delineated the rights of Convention refugees under the Immigration Act, and the procedures for
determination of their status.
Are the appellants entitled to protection of s.7 of the Charter?
In section 7, “everyone” includes every human being who is physically present in Canada. Court goes through
parts of the Charter and shows that it refers to both citizens and PRs. “Security of the person” must encompass
freedom from the “threat of the physical punishment or suffering as well as from such punishment itself.”
Even though Canadian gov’t is not directly responsible, our understanding of the Charter does not turn on
whether the gov’t is directly or indirectly responsible, but the effects of a deprivation of a right.
Rights:
Under s.45, a refugee claim is asserted in the context of an inquiry (which assumes claimant is in Canada).
An adjudicator reconvenes the inquiry (s.47(1)) to determine whether a refugee falls into s.4(2), which gives
a refugee the right to remain in Canada while “lawfully in Canada”. Section 37 allows Minister to give a
permit to refugee at the time of determination. Refugee is entitled to require the Minister to exercise discretion
fairly. Refugee also has right not to be returned to a country where her life or freedom would be threatened
(s.55), and the right to appeal a removal or deportation order (s.72).
Procedures:
There is no oral hearing, and the Refugee Status Advisory Committee and Minister rely upon “the
government’s knowledge of world affairs” in rendering a hearing. Refugee is only heard through her claim
and the transcript of his examination under oath, and has no right of reply. Claimant can apply for
redetermination by the IAB if refused. Board cannot allow hearings in every case and can only do so if “it is
of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the
application, be established.”
Is Fundamental Justice denied?
 31
Yep. The legislative scheme provides inadequate opportunity to the refugee claimant to state his case (no oral
hearing) and know the case he has to meet. IAB is quasi-judicial so only material they should rely on is the
claimant’s application. The process is highly adversarial, and applicant must establish that Minister is wrong
without any knowledge of Minister’s case beyond rudimentary reasons for why the claim was rejected.
Even though appellants are not yet Convention refugees (i.e. without claim to s.55 rights), they may be
persons with a “well-founded fear of persecution”, and so it is “unthinkable” that the Charter would not apply
to entitle them to fundamental justice in adjudication of their status.
Saved under s.1?
Nope. Counsel for Minister says the UNHCF was okay with Canada’s procedures and many other Western
countries had administrative adjudication without right to appeal. Wilson finds that these types of “utilitarian”
considerations can’t justify a limitation on Charter rights. “Certainly the guarantees of the Charter would be
illusory if they could be ignored because it was administratively convenient to do so…”

Suresh v. Canada (section at end on procedural fairness) [2002]

Facts:
Suresh came to Canada from Sri Lanka (1990) as a convention refugee and applied for immigration. In 1995 the
government attempted to deport him on the grounds that he was a member of Liberation Tigers of Tamil Eelam, an
organization alleged to engage in terrorist activity. Section 53 of the Immigration Act allowed for certain classes of
individuals (regarded by the minister to be a danger to the security or public in Canada) to be deported “to a country
where the person’s life or freedom would be threatened.” Suresh challenged the order for his deportation.
Issue: Are the procedures for deportation set out in the Immigration Act constitutional?
Holding: No, decisions under s.53(1) which involve risk of torture require written reasons. The case should be
reconsidered in accordance with the procedures laid out in these reasons.
Reasoning:
What is required by way of procedural protection under s.7, i.e. the principles of fundamental justice (PFJ), are not
identical to DoF in Baker, but are same principles underlying that duty. Therefore, Court applies same factors from
Baker to decide what procedural protections ought to be provided. Note: “...we look to the common law factors not
as an end in themselves, but to inform the s.7 procedural analysis, i.e. to inform the constitutional principles but the
CML is not constitutionalized.
 Nature of decision to deport resembles judicial proceedings, but is still made by individual with discretion.
This doesn’t suggest either strong or weak procedural safeguards.
 Nature of statutory scheme in Immigration Act suggests need for STRONG safeguards. There is a disturbing
lack of parity between the protections under s.40.1 (ensure certificates issued fairly with meaningful
participation of those involved), and under s.53(1)(b), where there is no provision for a hearing, no
requirement of written or oral reasons, no right of appeal – no procedures at all. Greater procedural
protection.
 Importance of right affected: Interest in staying in Canada highly significant due to risk of torture he may face
on return to Sri Lanka. Greater protections.
 Legitimate expectations: Article 3 of the Convention Against Torture prohibits deportation to states where
there are substantial grounds for believing the person would be in danger of being subjected to torture. This
informs s.7 and so appellant had right to procedural safeguards at the s.53(1)(b) stage.
 Choice of agency procedures: Minister free to choose procedures, but this must be reconciled with increased
protection warranted by serious situation of refugees like Suresh.
Conclusion: Does not require full oral hearing or complete judicial process, but require more than the
procedures required by act under s.53(1)(b) – that is, none. In particular, the refugee must be informed of the
case to be met (i.e. material upon which Minister is basing decision). Without access to materials Minister was
receiving from her staff, Suresh had no knowledge of which factors they needed to address, or the chance to
correct factual inaccuracies.
Should also be given an opportunity to challenge the information of the Minister where issues to its validity arise.
Where the Minister is relying on written assurances from a foreign government that a person would not be tortured,
the refugee must be given an opportunity to present evidence and make submissions as to the value of those
assurances.
If the refugee makes out a prima facie case of risk of torture upon deportation, Minister must provide all relevant
information and advice she intends to rely on, allow the refugee to address the evidence in writing, and after
 32
considering all information must provide written reasons that articulate and rationally sustain a finding that there are
no substantial grounds to believe that the individual will be subject to torture, execution, or other cruel or unusual
treatment. The reasons must also articulate why the Minister believes the individual to be a danger to the security of
Canada (subject to privilege or reasons for not disclosing the info).
Regarding assurances of the foreign state: There is a difference between assurance that the state will not apply the
death penalty (a legal process) and an assurance that it will not resort to torture (an illegal process) – particularly when
they’ve engaged in torture in the past. Minister may also take into account HR record of the gov’t giving assurances.
The lack of basic procedural protections cannot be justified by s.1; there is no rational connection between the purpose
and the lack of protections in this case.
“I wrote this speech some three months before the recent events in New York and Washington. They are a reminder
that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the
judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for
terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has
access to special information and expertise in these matters. It is also that such decisions, with serious potential results
for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the
community through the democratic process. If the people are to accept the consequences of such decisions, they must
be made by persons whom the people have elected and whom they can remove. (Rehman, per Lord Hoffman, cited at
para. 33, Suresh.)

Process:
1. Oral statement
2. Review by
3. RSAC makes recommendation to Minister
4. Minister decides, limited reasons
5. IAB w/o disclosure
6. Oral hearing only if likelihood of success
 33
Part III: Review of Substantive Determinations
The Standard of Review
Introduction of the substantive review of administrative decisions. The creation of three standards of review: correctness,
reasonableness, and patent unreasonableness.

Readings
Chapter 9, Standard of Review: Back to the Future?; pp. 279-291
C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227
Canada (Director of Investigation and Research) v. Southam Inc. [1997] up to para. 47

Class Notes
Two considerations when it comes to substances:
1. Reasons for the decision is justified, intelligible, transparent
2. Outcome: does the outcome fall within a reasonable, or permissible range of outcomes?

Timeline:
Pre CUPE: ideological predisposition – laisse-faire market economy (stay out of the way, no avenue for redress or
review).
Metropolitan Life [1970]: labour relations board had exceeded its jurisdiction because it had not stuck to a literal
interpretation of the statute. Supreme Court – yes, the labour relations board has exceeded its jurisdiction by answering
a question not remitted to it; whether the people in the union satisfied a criteria developed over the decades.
This case was controversial – unaccountable justices.
Privative clauses are supposed to prevent justices from reviewing decisions that are outside the jurisdiction of an
administrative tribunal. But a decision that falls outside a board’s jurisdiction is technically not a decision, and therefore
not subject to review by the courts because the privative clause only applies to a decision, which that is not. (circular, I
know.)
One of the most difficult questions in public law: How do you distinguish between questions that are jurisdictional and
those that are not?

1979 1988 1997 1998 1999 2008 2012

CUPE Bibeault Southam Pushpanathan Baker Dunsmuir Doré
2 standards prag. + func. 3 standards zenith of P+F discretion 2 standards reasonableness
approach part of P+F everywhere!

Before CUPE judges tended to be quite interventionist. Most of administrative law was labour law. In the 1990s it
changed to mostly being immigration and refugee law – not sure why. Courts went out of their way to find jurisdictional
faults – way of avoiding privative clauses. Jurisdictional faults had a standard of correctness. Non-jurisdictional disputes
had a standard of patent unreasonableness. Privative clauses were all but ignored. CUPE was the first time the courts
talked about deference.
 34
Chapter 9, Standard of Review: Back to the Future? pp. 279-291
Is there always only a single correct answer?
Who is better situated to determine the answer, the first-level, specialist decision-maker or the generalist reviewing
judge?
What criteria can assist in assessing relative expertise?
Usually, a court called on to review the interpretation or application of a statutory provision by an administrative
decision-maker will determine that the tribunal or board’s decision merits deference. Baker: “Deference as respect
requires not submission but a respectful attention to the reasons offered or which could be offered in support of a
decision.”
Less deference means stricter review:
- No deference = decision judges in terms of “correctness”
- Deference = will only be set aside if “unreasonable”
Privative Clauses: originally intended to prevent courts from interfering with substantive outcomes of administrative
action through the doctrines of error of law or absence of evidence for findings of fact. Usually include a grant of
exclusive jurisdiction over the subject matter, a declaration of finality with respect to the outcome, and a prohibition
on any court proceedings to set the outcome aside.
Doctrine of Parliamentary Supremacy: the legislator enacts the law, and the court must interpret and apply the law
in accordance with the legislator’s intent.

Is Judicial Review Constitutionally Protected?

In Crevier v. AG (Quebec) et al, the constitutionality of a privative clause in a Quebec statute was challenged on the
basis that confiding final and unreviewable decision-making authority to a provincial administrative tribunal would
violate s. 96 of the Constitution Act, 1867, by depriving federally appointed, s. 96 judges of a quintessential judicial
function. Laskin C.J.C. upheld the privative clause but permitted a correctness review for challenges based on division
of powers and, by implication, patent unreasonableness review for matters within jurisdiction.

C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227

Facts:
A public sector union went on strike. Under s. 102(3) of the New Brunswick Public Service Labour Relations Act,
striking employees were prohibited from picketing and employers were prohibited from using replacement workers.
Section 101 contained a privative clause that every “award, direction, decision, declaration, or ruling of the Board …
is final and shall not be questioned or reviewed in any court.” The employer complained to the N.B. Public Service
Labour Relations Board that the union was picketing and the union complained that the employer was filling striking
employees’ positions with management personnel.
Judicial History: The Board upheld the complaint against the employer and ordered it to refrain from using
management personnel to do work ordinarily performed by bargaining unit employees. The employer sought judicial
review and the union appealed to the SCC.
Holding: appeal allowed.
Reasons:
Court of appeal referred to jurisdiction as a “preliminary” matter. Dickson J says it is not preliminary. There is a
privative clause. Parliament clearly intended to let labour relations board deal with these issues. Court of Appeal
divided. - the legislation is ambiguous. Dickson J comes up with 4 different possible interpretations.
“Was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the
relevant legislation and demands intervention by the court upon review?” Dickson J doesn't think so. The clause is
ambiguous. “There is no one interpretation which can be said to be “right”.
The Board's decision was not “patently unreasonable”
Ratio: short of a patently unreasonable interpretation of a statutory provision, courts should not interfere with the
result reached by the administrative decision-maker.
STANDARD OF REVIEW:
Jurisdictional question: “correctness”
Questions within jurisdiction: “patent unreasonableness”
 35
Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 SCR 748
Facts:
Two daily newspapers in Vancouver + lots of smaller, community newspapers. Southam owned both of the big dailies
and bought up a bunch of the smaller community newspapers. Federal person was worried about competition – wanted
Southam to divest itself of some of the smaller companies. Competition bureau agreed. Appeal.
Finding:
Considering factors to determine standard of review: No new legal principle, no error in law, therefore more deference
owed. No privative clause, therefore less deference owed. Expertise is the most important factor to consider. Tribunal
is expert in economics and commerce.
A standard more deferential than correctness but less deferential than “patent unreasonableness” is needed =
reasonableness simpliciter.
In this case, there is a statutory right of appeal. So jurisdiction is not an issue.
Factors to consider:
(1) Nature of the Problem before the Tribunal. Fact, law or mixed fact and law. In this case it is mixed.
(2) Words of the Tribunal's Constating Statute. There is a right of appeal. Means less deferential approach.
(3) Purpose of the statute that the tribunal administers. Aims of this act are more economic than strictly legal.
That means tribunal is well suited to oversee it. Means more deference.
(4) Area of the Tribunal's expertise. The most important factor a court must consider in settling upon a
standard of review. Also means more deference in this case.
Overall, a standard of reasonableness is required and appropriate.

Consolidation of the pragmatic and functional approach

Work through and understand the various elements of the Pushpanathan pragmatic and functional approach.

Readings:
Chapter 9, Standard of Review: Back to the Future?; pp. 291-300
Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] up to para. 38
Law Society of New Brunswick v. Ryan [2003] up to para. 24

Class Notes:
Pushpanatham in 1998 – zenith of pragmatic and functional approach.
 Jurisdictional analysis becomes most enveloped into pragmatic and functional approach.
 Bastarache J: all we mean by jurisdiction is that correctness standard applies after considering all those factors:
(1) privative clause (2) expertise (3) purpose of statute (4) nature of question
1 year later: Baker – takes pragmatic and functional approach and applies it to a review of discretion.

Chapter 9, Standard of Review: Back to the Future?; pp. 291 – 300

Beyond Privative Clauses
CUPE asked the question “should the court defer?” not only where statutes contain privative clauses, but also where
statutes contain finality clauses. This leaves open the option of judicial review, or even a full appeal to the courts on
questions of law and fact.
Iacobucci J. declared that “even where there is no privative clause and where there is a statutory right of
appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized
tribunals on matters which fall squarely within the tribunal’s expertise.”
The “jurisdictional question” was supplanted by “expertise” as the key determinant of standard of review.
Reasonableness simpliciter  “An unreasonable decision is one that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination.” Iacobucci seems to regard the most deferential standard of
patent unreasonableness as appropriate only in the presence of a privative clause, where intervention must formally
be justified by resort to the concept of jurisdiction.
Pragmatic and Functional Redux: Pushpanathan v. Canada
 36
The SCC took the opportunity to consolidate and summarize the factors to be taken into account in determining the
appropriate standard of review. Bastarache J. reformulated Bibeault’s pragmatic and functional question into: “Did
the legislator intend this question to attract judicial deference?”
He organized the factors into four categories: (1) privative clause; (2) expertise; (3) purpose of the act as a whole
and of the provision in particular; and (4) nature of the problem (question of law, fact, or mixed law and fact).

Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998]

Facts:
In 1985, P claimed Convention refugee status under the Immigration Act from Sri Lanka, on the basis of his being a
political prisoner in Sri Lanka. He was granted permanent residence in 1987 under an administrative program. In 1987
he was arrested on charges of conspiracy to traffic in a narcotic and he pleaded guilty to the offence and was sentenced
to 8 years in prison.
In 1991, P renewed his claim to Convention refugee status under the UN Refugee Convention. In 1992, a conditional
deportation order was issued by Employment and Immigration Canada against P under s. 27(1)(d) and s. 32.1(2) of
the Act, which provide that a permanent resident who has been convicted of an offence for which a sentence of more
than six months’ imprisonment has been imposed, may be deported. This deportation is conditional upon a
determination that the claimant is not a Convention refugee. P’s claim was referred to the Convention Refugee
Determination Division of the Immigration and Refugee Board. The Board decided that P was not a Convention
refugee.
The Federal Court, Trial Division and the Federal Court of Appeal refused to reverse that decision on an application
for judicial review. P appeals to this Court.
Issue: What is the standard of review to be applied to the decision of the Immigration and Refugee Board?
Holding: The standard of review was “correctness”. Appeal allowed.
Reasoning:
The correctness standard should be applied to the Board’s decision. The central inquiry in determining the standard
of review by a court is the legislative intent of the statute creating the tribunal whose decision is being reviewed.
The reviewing court must ask: “Was the question which the provision raises one that was intended by the legislators
to be left to the exclusive decision of the Board?”
Statutory interpretation requires a weighing of several different factors: “the pragmatic and functional approach”.
Traditionally, there were only two approaches available to a reviewing court: “correctness” standard and “patent
unreasonableness” standard. But in Southam, a “reasonableness simpliciter” standard was applied as the most accurate
reflection of the competence intended to be conferred on the tribunal by the legislator.
Factors to be taken into account:
1. Privative Clauses: the presence of a “full” privative clause is compelling evidence that the court ought to
show deference to the tribunal’s decision, unless other factors strongly indicate the contrary. A full privative
clause is “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies
and all forms of judicial review are excluded.”
2. Expertise: “the most important of the factors that a court must consider in settling on a standard of review”
(Southam, Iacobucci J.). If a tribunal has been constituted with a particular expertise with respect to achieving
the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure,
or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. This is a
relative, not absolute concept. Three dimensions: (1) characterize the expertise of the tribunal in question;
(2) consider its own expertise relative to that of the tribunal; and (3) identify the nature of the specific issue
before the administrative decision-maker relative to this expertise. A decision which involves highly
specialised expertise will militate in favour of a high degree of deference, and towards a standard of review
at the patent unreasonableness end of the spectrum.
3. Purpose of the Act as a Whole, and the Provision in Particular: The purpose of a statute is often indicated
by the specialized nature of the legislative structure and dispute-settlement mechanism. Where the statute or
provision can be described as “polycentric” – engages a balancing of multiple interests, constituencies, and
factors or contains a significant policy element, or articulates the legal standards in vague or open-textured
language, more judicial restraint is warranted.
4. The “Nature of the Problem”: a question of law or fact? Even pure questions of law may be granted a wide
degree of deference where other factors of the pragmatic and functional analysis suggest that such deference
is the legislative intention. However, where other factors leave that intention ambiguous, courts should be
 37
less deferential of decisions which are pure determinations of law. There is no clear line to be drawn between
questions of law and questions of fact.
All the factors must be taken together to come to a view of the proper standard of review.
Ratio: In the usual case, the broader the propositions asserted, and the further the implications of such decisions stray
from the core expertise of the tribunal, the less likelihood that deference will be shown.
Class Notes
Privative clause/Statutory right to appeal: restriction on getting up to the appellate court level and courts should be
mindful of that.
Expertise: always a question of relative expertise. General comparison of the expertise between tribunal and the court
and then an analysis of the expertise in relation to the question.

Law Society of New Brunswick v. Ryan [2003], up until para 24

Facts: Lawyer in NB had complaints by 2 former clients. He lied to them for years, never filed claim he said he would
file. Law Society decided he should be disbarred. Court of Appeal said he should be suspended with possibility of
reinstatement. Court of appeal said standards was “closer to correctness than patent unreasonableness”
Issue: What is the appropriate standard of review? Does reasonableness land of a spectrum? Did the CofA apply the
right standard?
Reasoning (Iacobucci): Courts should use the pragmatic and functional approach to determine the level of deference
to be accorded to the decision in questions.
The Pragmatic and Functional Approach:
How many standards are available in review of administrative decisions? Not more than three. “I find it difficult to
conceive more than three standards of review. In any case, additional standards should not be developed unless there
are questions of judicial review to which the three existing standards are obviously unsuited.” [24]
Applied to the decision:
(1) No privative clause – however, presence of a privative clause is not determinative (Pushpanathan)
(2) Expertise – there is reason to expect that the Discipline Committee has superior expertise relative to the
courts.
 38
Class 13: Three is a crowd!
The effect of Dunsmuir on the standard of review of analysis- the collapsing of three standards of review into two:
correctness and reasonableness.

Readings:
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 323– 332
Dunsmuir v. New Brunswick [2008] up to para. 43
Modernizing Judicial Review, Bastarache J.
Dr. Q v College of Physicians and Surgeons of British Columbia [2003] (headnote)

Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 323– 332
After Dunsmuir, the three standards of correctness, reasonableness simpliciter and patent unreasonableness was
condensed into two: correctness and reasonableness, or non-deference vs. deference. This simplified substantial
review.
What is required of administrative decision-makers in order to satisfy the expectations of substantive legality?
Sceptical account of substantive review: regards the standards of review and, in particular, the ideal of deferential
review or review for reasonableness as a grand illusion distracting us from the underlying truth of this area of law.
The truth being that that there exists irreconcilable differences between the legislative branch (and administrative
decision-makers) and the judicial branch. The sceptic views substantive review as a way in which judges can overturn
decisions that conflict with their values or policy preferences.
Statutory Interpretation and Substantive Review: Working Theories
“Modern principle” of statutory interpretation: “the words of the Act are to be read in their entire context and
in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament”
Positivist approach  statutory language contains a singular and unified meaning that is stable over time.
Interpretive techniques may involve a strict focus on the statutory text or efforts to situate the text in its legislative
context. Legal formalism  law is a self-contained system of formal concepts, and legal judgment consists in solving
case-specific problems by making deductive and inductive links to that stable conceptual-legal system.
In administrative law, a positivist approach may work against deference, since it restricts the potential for
judges to acknowledge their own value-laden presumptions in the fact of the potentially competing values or
perspectives of the administrative decision-makers.
Normative approach  assumption that contested matters of statutory interpretation cannot be resolved by exclusive
reference to the text, but also require judgments about the competing values or social priorities informing alternative
statutory constructions.
Baker  all law interpretation involves the exercise of discretion.
Normative model implies a conception of the rule of law in which the legitimacy of state action is contingent on
consistency with the important public values inscribed in our social and legal traditions.
In administrative law, it is possible to adopt the normative model of law interpretation while insisting on correctness
review of administrative efforts at law interpretation. Such insistence may be made particularly where fundamental
values are at stake in the interpretive exercise  Charter rights, statutory human rights, or individual rights at common
law.
 39
Dunsmuir v. New Brunswick (from Chapter 8 or 9) [2008] paras. 27 – 43
Issue 1: Review of the Adjudicator’s Statutory Interpretation Determination
Judicial Review
Judicial review is intimately connected with the Rule of Law. The function of judicial review is to ensure the legality,
reasonableness and fairness of the administrative process and its outcomes. The reviewing court will check the statute
to see what the scope of their decision making power is intended to be by the legislature as shown in the statute. Thus,
the courts are making sure of legislative supremacy.
Reconsidering the Standards of Judicial Review
The current approach involves three standards of review – correctness (no deference is shown), patent
unreasonableness (most deferential to the decision maker) and reasonableness simpliciter (somewhere in the middle).
The conclusion of this court is that there ought to be two standards of review: correctness and reasonableness.
Prior to CUPE, judicial review followed the “preliminary question doctrine”, which inquired into whether a tribunal
had erred in determining the scope of its jurisdiction. By simply branding an issue as “jurisdictional”, courts could
replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the matter
lie in the hands of the administrative tribunal. CUPE marked a significant turning point in the approach of courts to
judicial review.
Bibeault introduced the concept of a “pragmatic and functional analysis” to determine the jurisdiction of a tribunal,
abandoning the “preliminary question” theory. In arriving at the appropriate standard of review, courts were to
consider a number of factors including the wording of the provision conferring jurisdiction on the tribunal, the purpose
of the enabling statute, the reason for the existence of the tribunal, the expertise of its members, and the nature of the
problem.
In Canada v. Southam Inc., a third standard of review was introduced into Canadian administrative law –
“reasonableness simpliciter”. The difference between patent unreasonableness and reasonableness simpliciter is the
“immediacy” or “obviousness” of the defect in the tribunal’s decision.
Three standards of review have been practically and theoretically difficult to implement and one major problem lies
in distinguishing between patent unreasonableness and reasonableness simpliciter. This leads to difficulty in choosing
the appropriate standard of review.
“In the end, the essential question remains the same under both standards: was the decision of the adjudicator
taken in accordance with reason? Where the answer is no, for instance because the legislation in question
cannot rationally support the adjudicator’s interpretation, the error will invalidate the decision, regardless of
whether the standard applied is reasonableness simpliciter or patent unreasonableness . . . .”
Two Standards of Review
“What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires
it, but not otherwise. A simpler test is needed.”

Mondernizing Judicial Review, Bastarache J.

Argument  Southam brought three standards, and everyone started getting more and more critical about it. The
court really wanted to solve this in Dunsmuir.
Judicial review aims to address the tension between the rule of law and legislative intent. “Judicial review is the means
by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal
authority.”
Application of reasonableness standard:
(1) The coherence and intelligibility of the reasons, and
(2) Whether or not the decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
Criticism:
(1) This is going back to pre-CUPE jurisprudence. Is it really possible to avoid jurisdictional questions? The rule
of law demands that courts rectify the unauthorized and inconsistent applications of law.
(2) This actually achieves nothing.
(3) Presence of express statutory right of appeal. The majority would have wanted to leave the possibility to apply
a standard of review of reasonableness to cases where there is a right to appeal. Answer: where there is a
privative clause, the rule of law and the intent of the legislative are arguably in opposition. Where there is an
express statutory right of appeal, both factors militate towards correctness.
 40
(4) Binnie J: Majority’s reasons focus exclusively on the adjudicative context. So is it a “variable” standard? One
cannot be someone unreasonable, either its reasonable or its unreasonable. We must look at whether or not
reasons are rational and coherent, and whether or not the result falls within the range of possible, acceptable
outcomes. The driving force behind the decision to eliminate the distinction between unreasonable and
patently unreasonableness was the inability to distinguish between the two in practice.

Dr Q v College of Physicians and Surgeons of British Columbia (headnote) [2003]

Facts: Dr had an inappropriate sexual relationship with a client. College of Physicians and Surgeons believed her
over him (he denied it had happened). They suspended his licence for 18 months with strict requirements for being
re-accepted. The Trial Judge disagreed with College's findings of credibility and set aside decision. Court of Appeal
said Trial Judge was “clearly wrong”.
Holding: The appeal should be allowed and the order of the College restored.
Reasoning (McLachlin):
Reviewing judge not allowed to substitute her interpretation of evidence for the College. Appropriate standard was
that of reasonableness simpliciter. The reviewing judge did not adopt the pragmatic and functional analysis – she
should have done so. She considered only whether the statute grants a right of appeal, and failed to address the need
for deference in view of the purpose of the Act and the nature of the problem, credibility.
The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct
standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct
standard of review, reasonableness. The Court of Appeal erred by affording deference where none was due.
The Court of Appeal should have corrected the reviewing judge’s error, substituted the appropriate standard of
administrative review, and assessed the Committee’s decision on this basis. Judged on the proper standard of
reasonableness, there was ample evidence to support the Committee’s conclusions.
 41
Review on a standard of correctness
The application of the correctness standard for purposes of substantive review.

Readings:
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342
Canada (Attorney General) v. Mossop [1993]
Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] after para. 37
Dunsmuir v. New Brunswick [2008] paras. 51 – 55

Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342
The Standards of Review in Theory and Practice
A Contested Correctness
In Theory 
Central questions of law that are important to the whole legal system are outside the scope of administrative tribunals
(constitutional, jurisdictional, etc.). Arguable, Dunsmuir has reduced the reach of correctness review by: a) increasing
the specificity of the broad category of questions of “general” law; and b) indicating that a “narrow” approach should
be taken to jurisdictional questions.
But at the same time, Dunsmuir tells us that we don’t need to change any of the existing doctrine on conduct of
correctness review. What it means to “get it right” and the method by which you can get there is hotly contested.
In Ryan, the judge can undergo its own reasoning process to arrive at the result it judges correct. This is in contrast
with how a court must study carefully the tribunals reasoning in a deferential review.
Underlying rationales for the correctness standards:
The idea of jurisdiction  certain matters fall within the administrative tribunals authority, and some fall
outside.
Expertise  tribunals cannot claim expertise where it does not have it. Many exceptions have developed.
Consistency and predictability  judges are best placed to ensure this when it comes to the law.
In Practice 
Two cases that indicate the tension in correctness review are Mossop and Bibeault.
In Bibeault, Beetz J. continues to take a Diceyan approach to jurisdiction. He concluded that the issue is jurisdictional,
and thus no deference is due. To interpret certain terms in the civil law, judicial expertise was needed. Should terms
of art in civil or common law be protected from “novel” or contextually informed interpretations of tribunals?
In Mossop, the SCC overturned a decision of the tribunal on the basis that ‘family status’ could not be interpreted to
extend to same-sex couples. The correctness standard was applied, but the judges disagreed on what the right decision
to substitute was. Lamer J. found that the legislature did not intend that family would include same sex couples.
LaForest, concurring, found that family in the ordinary sense meant ‘traditional family’ to the Canadian public.
HD dissented. Human rights codes are interpreted with the fundamental ideas of equality and liberty which
usurp even legislative intent. Only the most explicit legislative intent can curtail them. Her judgement reflects
the model of the rule of law known as common law constitutionalism. Under this model, statutes are not
closed systems but requiring interpretation in light of animating principles of the wider social and legal
tradition. She also picked the standard of review of reasonableness simpliciter. She found that the tribunal
had a role in identifying and prioritizing the fundamental values she was speaking of.
Since Mossop and the introduction of review for reasonableness, there has been increased willingness to defer to
human rights tribunals on fact-intensive situations or where the matter is tribunal processes. It is not clear if, after
Dore, that a case like Pushpanathan would have received deference. In that case, they applied a correctness standard
to the decision of the refugee board involving the interpretation of the refugee act. The language had incorporated a
UN refugee convention so the issue was interpreting a general legal principle, something the board did not have the
requisite expertise in. Courts still get to interpret human rights, not tribunals.
If statutory interpretation is not an exact science, then, on what grounds can courts continue to apply the correctness
standard of review to disputes of this sort?
The bedrock of correctness review is the concept of jurisdiction. Administrative decision-makers do not enjoy
unlimited authority, nor do they have authority on questions regarding their own mandate. It also reflects the rule-of-
law concern for stability in law, particularly in matters of general legal (including constitutional) significance.
 42
Canada (Attorney General) v. Mossop [1993] 1 SCR
Facts:
Mossop, a federal civil servant, applied for a bereavement day of leave from work to attend the funeral of his same-
sex partner’s father (partners for 10y). The employer refused on the ground that collective agreement only referred to
death of “immediate family.” This latter term included “CML spouse”, but only of the opposite sex. M filed a
complaint to Canadian HR Commission for discrimination on the basis of “family status” (Canadian HR Act) and not
on the general grounds of sexual orientation as not being protected. HR tribunal upheld the complaint, forced the
employer to amend the C.A. and give M the day of holidays.
Overturned by the Federal C.A.: found that the Tribunal had erred in law in finding that a same-sex couple could be
afforded protection under on the ground of “family status”
Issue: Was the court of appeal correct in using a correctness standard? Was the decision overturned on a correctness
standard?
Holding: YES; YES
Lamer CJ (Majority):
General question raised is one of statutory interpretation  question of law. NO privative clauses that immunize the
decisions of the HRT from judicial scrutiny. Absent a privative clause the courts have shown deference where the
tribunal is interpreting its own Act
Given the HRT doesn’t have any particular expertise in findings of law related to the interpretation of its statute, no
deference is owed (but does suggest deference can be owed – see LaForest’s reasoning).
This is a question of law  what is the proper meaning of “family status”?
Pragmatic and Functional Approach:
1) Statutory right of appeal  exists, therefore less deference.
2) Expertise  no particular expertise in this matter. It’s a question of HR law, but the court makes a distinction
between tribunals that administer specialized areas of law (like labour relations law) and areas where the law
is very general. It’s expertise relative to the court is no greater, therefore no special deference due.
3) Purpose of the act and provision  policy purposes of the Commission. Therefore, some deference is due.
But, since the Canadian HR Act gives the Commission its adjudicative powers, the Commission is acting in
a quasi-judicial/adjudicative role, rather than a policy role of evaluating and balancing interests. Therefore,
less deference.
4) Nature of the problem  the question is the proper interpretation of family status. This decision has direct
impact on society at large with respect to basic social values. This is close to a constitutional litigation –
interpretation of fundamental interplay of HR statute and society at large – more deference.
THEREFORE, THE STANDARD IS CORRECTNESS.

Applying the standard to the decision

Family status has been added as enumerated grounds but sexual orientation has not. So, if L’H-D is right, we would
have funny situation whereby homosexuals in couples would have protection and those not in couples would not.
HRC’s decision is wrong in law – cannot add words to the statute that Parliament declined to put in.
Lamer grounds his analysis in legislative intent:
“Absent a Charter challenge, when Parliamentary intent is clear, courts and administrative tribunals are
not empowered to do anything else but apply the law. If there is some ambiguity as to meaning or scope,
courts should seek out the purpose of the legislation using the usual rules of statutory interpretation. If
more than one reasonable interpretation is constituent with the purpose, the one more in conformity with
the Charter should prevail.”
In this case, however, legislative intent was clear, so no need to use the Charter as an interpretive aid

La Forest J (concurring)
General question is one of statutory interpretation – therefore, question of law.
Agrees that without a privative clause or some other indication of judicial review jurisdiction, the normal supervisory
role of the court remains. Courts have been willing to show deference to administrative tribunals for reasons of relative
expertise, in addition to the normal deference of reviewing courts in respect of questions of fact.
BUT The superior expertise of a Human Rights Tribunal is in fact-finding and adjudication in a human rights context,
and not the interpretation of general questions of law.
Distinct entity from a labour board: “whose decision is imposed on the parties and has direct influence on
society at large in relation to basic social values.”
 43
Based on interpretation of legislative intent from statutory interpretation (ordinary meaning, context, purpose), no
way same-sex couples were meant to be included.

L’Heureux-Dubé (dissent)
Application to the substance of the decision
Courts should be cautious and exercise deference when reviewing a tribunal’s decision. The best approach to
determine appropriate standard of review is the P&F approach that was articulated in Bibeault.
Must ask: did the legislator intend the question to be within the jurisdiction conferred on the tribunal? If yes,
then the role of the courts should be a superintending one, and intervention will be warranted only if the
decision is patently unreasonable.
Courts will examine not only the wording of the enactment, but also the purpose of the statute creating the tribunal,
the reason for its existence, the area of expertise of its members, and the nature of the problem before the tribunal.
If after considering all these factors, then the test of correctness should apply. If not, then it will only be done for a
patently unreasonable decision.
The proper standard of review is patent unreasonableness. The tribunal has jurisdiction to interpret its Act and,
consequently, the meaning of the term “family status” in s. 3 of the Act. Courts should defer to the Tribunal’s
interpretation since the legislature specifically intended that the Commission and its tribunals carry out the task of
interpreting the grounds of discrimination in the Act.
In the absence of a definition of “family status” in the Act, concepts of equality and liberty which appear in human
rights documents are not bounded by the precise understandings of the people who drafted them – normative model
of statutory interpretation. Human rights codes embody fundamental principles, but permit the understanding and
application of those principles to change over time.
Class Notes:
This case is a good example of correctness: The court doesn’t examine the tribunal’s decision after determining that
the standard to apply is correctness. Rather they simply apply their own analysis to the issue.

Pushpanathan v. Canada (Minister of Citizenship and Immigration) – after para. 37

The Nature of the Problem: A Question of Law or Fact?
Even pure questions of law might merit a lot of deference, where the other factors of the test suggest that this was the
intention. However, where there is no such intention manifested, then the courts can be less deferential on pure
questions of law. This also relates to the relative expertise of the tribunal and the court. See Southam on mixed
questions of law and fact. If a question is based on a really specific set of facts and is unlikely to be passed on as a
general legal principle, it will be more on the fact side.
Sometimes as in the case of the Workers’ Compensation Board the creation of a legislative scheme combined with a
highly specialized administrative decision-maker and a strong privative clause is sufficient to grant an expansive
deference even over questions of law. However, in absence of a clear intention, general questions of law should be
assumed to be left to the courts.
Keeping this in mind, the generality of the proposition decided will be a factor in favour of the imposition of a
correctness standard. Generally the broader the propositions asserted and the further the implications of the decisions
go from the expertise of the tribunal, the more less likely they will be shown deference. Without clear intent,
legislatures are presumed to have left highly generalized propositions of law to the courts.
The proper standard: Correctness
Applying the pragmatic and functional test comes to a different conclusion than Richard J. S 83(1) would be
incoherent if the standard of review were anything other than correctness. The statute allows that serious questions of
general importance are reviewable by the courts. If courts are required to defer to questions that are incorrect in law
but “reasonable” then this section is incoherent. The only way to read this section would be that in serious cases of
general importance the CA and FC are allowed to substitute their own findings. S. 83 codifies the principle of
generality discussed in Southam. Furthermore, in this case the board does not seem to have expertise on the issue in
question here.
The board’s expertise is in the evaluation of whether the criteria for refugee status has been met. The relationship
between this function and the provision in question here is remote. As lawyers are not required to be on every panel,
it would be unthinkable to allow the board to make exclusive determinations on the broad definition of basic human
rights guarantees. The board is also not in a managing or supervisory function as in Southam and corn growers. They
 44
are not responsible for policy evolution. There is no poly-centricity. Also the P&F test allows for different standards
of review based on different decisions up for review.

Dunsmuir v. New Brunswick – paras. 51 – 55

Determining the Appropriate Standard of Review
Questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from
the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of
correctness.
The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the
reasonableness standard. However, the presence of a privative clause is not determinative. Neither Parliament nor any
legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies. This
power is constitutionally protected.
Where the question is one of fact, discretion or policy, deference will usually apply automatically. The same standard
must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily
separated. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected
to its function, with which it will have particular familiarity.
The following factors will lead to the conclusion that the decision maker should be given deference and a
reasonableness test applied:
- A privative clause
- A discrete and special administrative regime in which the decision maker has special expertise
- The nature of the question of law. A question of law that is of “central importance to the legal system . . .
and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a
correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does
not rise to this level may be compatible with a reasonableness standard where the two above factors so
indicate.
 45
Review of reasonableness (patent or otherwise)
The application of the reasonableness standard for purposes of substantive review.

Readings:
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 342-379
Canada (Director of Investigation and Research) v. Southam Inc. [1997] after para. 47
Law Society of New Brunswick v. Ryan [2003] after para. 24
Dunsmuir v. New Brunswick [2008] paras. 44 – 49, paras. 58 – 70

Class Notes:
Recap: fundamental structure for reasonableness comes from Dunsmuir.
- Cited David Dysenhaus – idea of “deference as respect” as opposed to “deference as submission.”
o Focus is on the reasons that could be offered, not outcomes. Reasons are ideas, concepts or evidence
that, taken together, can justify a particular outcome.
- Concerned not simply about reasons but also about outcomes.
o Two step approach: first reasons, then outcomes.
 Reasons  transparent, capable of supporting the outcome, both for the facts and the law.
 Outcomes  defensible in terms of the law.
o Nurses – reasons and outcomes must be evaluated together, not independently.
- More than one reasonable interpretation will generally be permitted/available.

Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 342-379
Review for Reasonableness
Pre-Dunsmuir case law: two main areas of controversy about deference on substantive review that remain  (1)
controversies about the method or conduct of judicial reasoning, and (2) controversies about the substantive indicia
of reasonableness or unreasonableness.
The Conduct of Deferential Review  Statutory language may accommodate more than one reasonable
interpretation. How are the limits of reasonableness to be discerned, consistent with deference? The reviewing
judge must not measure the decision against his sense of the “correct” decision. Iaccobucci (Ryan): “a decision
may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is
not one that the reviewing court finds compelling.”
Substantive Indicia of (Un)reasonableness  Simpliciter urged judges to attend closely to the administrative
decision-makers’ reasons on review. The interposition of simpliciter between correctness and patent
unreasonableness is the confidence in reason. There is concern that there are certain reasons that do not stay
close to logic. In Ryan, Iacobucci J. emphasized that “unlike a review for correctness, there will often be no
single right answer to the questions” attracting review for reasonableness. Deferential review must avoid
second-guessing administrators with respect to the weight or priority they assign to competing statutory
purposes. Reviewing judges are prohibited from revisiting the relative weight placed by administrative
decision-makers on the competing factors of relevance to their decisions.

Reasonableness Post-Dunsmuir
Dunsmuir Reasonableness in Theory  simplify the area of law and set it on a more principled foundation. Judges
applying a reasonableness standard should closely attend to administrative reasoning, and that the decision
should stand unless it “cannot be rationally supported by the relevant legislation” or the evidence.
Deference as Respect: Guidance in Dunsmuir comes from the concept of deference “as respect” (not as
submission). This is respect for the legislative intent (i.e. how much power put on the administrative decision
makers) – i.e. respect for the choices of the legislature. Pronouncements are made following the premise that
certain questions do not lend themselves to one specific, particular result. Instead, they will give rise to a
number of possible conclusions.
Targets of Reasonableness Review: reasons and outcomes: “A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. Reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also concerned with whether the decision falls
 46
within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
(Dunsmuir, para 47) Do the reasons support (justify) the outcome?
The Criteria of Dunsmuir Reasonableness: Three touchstones: justification, transparency, intelligibility.
Seems like they are embedded in the “process of reasoning”. But it seems like it can be argued that at least
the criterion of justification should be applied. Application of all three criteria to both foci of reasonableness
review (reasons and outcome) is suggested in Khosa.
Post-Dunsmuir Developments: Three important elements of significance that refer to the proper application
of the reasonableness standard:
(1) “No reasons” versus substantive (un)reasonableness  Newfoundland Nurses question is how to
advance when there are gaps in administrative reasoning. First, is this more a matter of substantive or
procedural fairness? Whether reasons are provided for is a low threshold; the quality of the reasons is
more a question of substantive review. Second, how should a court exhibit deference on reviewing a
decision alleged to have fatal gaps in reasoning? It is respect for “the reasons offered or which could be
offered in support of a decision” – may require looking beyond the reasons to the wider record of evidence
and argument “for the purpose of assessing the reasonableness of the outcome”.
(2) Contextual Dimensions of reasonableness  Binnie J. in Dunsmuir suggested that the simplicity
introduced by the shift to a single reasonableness standard was likely to be accompanied by the emergency
of shades of reasonableness. This fracturing of reasonableness review was likely to occur by way of
judicial consultation of contextual factors. Came again in Khosa, where reasonableness is described as a
standard that “takes its colour from the context”. Review for reasonableness “is essentially a contextual
inquiry.”
(3) Doré and Proportionality  Traditionally, common law substantive review avoided the relative weight
or importance to be assigned to competing factors of relevance, from evidentiary considerations to policy
goals or statutory purposes. This problem resurfaced with the notion of fundamental values in Baker. In
Doré, this seems to favour a proportionality approach. Proportionality has arisen within reasonableness.
In Doré, where an exercise of discretion engages Charter values, judicial review should be conducted
according to common law principles of substantive review rather than under the s.1 Charter framework
for justifying a rights-infringement.
Dunsmuir Reasonableness in Practice  Review for Dunsmuir reasonableness has not as yet overcome the instability
between the impulse toward judicial supremacy and the impulse toward judicial abdication that has historically
marked the case law on deference.
Dunsmuir: Judicial Supremacy in Practice?  Dunsmuir as an example of JUDICIAL SUPREMACY.
Despite the Dunsmuir majority’s stated commitment to deference to administrative decision makers’
interpretations of statutes, its application of a reasonableness standard to the arbitrator’s decision concludes
that it was unreasonable. Traditional common-law values seem to drive the reasoning.
Khosa as Judicial Abdication: Still Battling the Weight Problem  Khosa as an example of JUDICIAL
ABDICATION. Khosa confirms those statements in Dunsmuir indicating the importance of deference to
expert tribunals in matters falling within their expertise.
Resurgent Tensions in (Context-Sensitive) Reasonableness Review: Catalyst Paper to Dore  the court in
Doré concluded that the decision to issue a reprimand satisfied the criterion of proportionality and, thus, the
standard of reasonableness. Administrative decision makers balancing Charter values will not necessarily be
expected to engage in formal rights analysis on the model of Charter jurisprudence, nor must they necessarily
defend their decisions. What they must do is “demonstrate that they have given due regard” to the competing
values engaged by their decisions. In general terms, the way that reasonableness standard is applied in Doré
brings together two important trends in reasonableness review:
(1) Supplementation of the insistence that courts “stay close to the reasons” of administrative
decision-makers with an insistence that they first make efforts to ascertain the “perspective”, or
range of acceptable options, within which the decision is expected to stay; and
(2) Erosion of the once-dominant principle that courts may not revisit the weight accorded to
competing factors (in particular, legal values) on review – although this erosion is, so far,
restricted to adjudicative discretion implicating Charter values.
Conclusion
In administrative law, it is not about measuring the decision against an objective standard of legal accuracy: “Rather,
it is about striking the proper relationship among legislatures, judges, administrators, and those affected by
administrative decisions, in the common work of securing and advancing the rule of law.” Dunsmuir has prompted
 47
renewed reflection on the meaning of reasonableness as a criterion of substantive legality and on the reviewing
practices most consistent with deference.
The ongoing challenge posed by reasonableness review goes to how the commitment to deference, especially when
considering those tribunals with expertise, is to be reconciled with the judicial commitment to supervise administrative
decisions, and more broadly, to uphold the rule of law.

Canada (Director of Investigation and Research) v. Southam Inc. (1997) after para. 47
The Purpose of the Statute that the Tribunal Administers
The Tribunal is especially well-suited to the task of overseeing a complex statutory scheme whose objectives
are peculiarly economic. The purpose of the Act is better served by appellate deference to the Tribunal’s
decisions.
The Area of the Tribunal’s Expertise
Expertise is the most important of the factors that a court must consider in settling on a standard of review
and determining the intention of the legislator with respect to the degree of deference to be shown to a
tribunal’s decision in the absence of a full privative clause.
This Tribunal’s expertise lies in economics and in commerce. The dispute in this case concerns the definition
of the relevant product market – this is within the area of the Tribunal’s expertise.
The Standard
More deferential than correctness but less deferential than “not-patently unreasonable.” The third standard
should be whether the decision of the Tribunal is unreasonable. “An unreasonable decision is one that is not
supported by any reasons that can stand up to a somewhat probing examination.” [56]
Difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the
defect. If the defect is apparent on the fact of the tribunal’s reasons, then the tribunal’s decision is patently
unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is
unreasonable but not patently unreasonable. (What is the real difference, though, practically?)
Application of the Standard
Did the Tribunal act unreasonably when it decided that Southam’s daily newspapers and community
newspapers are in different product markets? NO.

Law Society of New Brunswick v. Ryan [2003] after para. 24

There are three standards of review in administrative decision. It is difficult, if not impracticable, to conceive of more
than three.
The Pragmatic and Functional Approach Applied to the Disputed Decision
Review of four contextual factors from Pushpanathan. Nothing new here.
Conclusion: the factors suggest a more deferential standard of review than correctness. The appropriate standard is
reasonableness simpliciter.
Reasonableness Simpliciter
“After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?”
This is the question that must be asked every time the pragmatic and functional approach directs
reasonableness as the standard.
When deciding whether an administrative action was unreasonable, a court should not at any point ask itself
what the correct decision would have been. Applying the standard of reasonableness gives effect to the
legislative intention that a specialized body will have the primary responsibility of deciding the issue
according to its own process and for its own reasons. The standard of reasonableness does not imply that a
decision-maker is merely afforded a “margin of error” around what the court believes is the correct result.
Unlike a review for correctness, there will often be no single right answer to the questions that are under
review against the standard of reasonableness.
 48
Dunsmuir v. New Brunswick [2008] paras. 44 – 49, paras. 58 – 76
Defining the Concepts of Reasonableness and Correctness [44-49]
Southam introduced the standard of reasonableness simpliciter to order to respond to perceived problems in the
operation of judicial review in Canada. These problems are best remedied by two standards of review, not three:
correctness and reasonableness.
Reasonableness is a deferential standard. Certain questions that come before administrative tribunals may give rise to
a number of possible, reasonable conclusions. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts
and law.
Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts
are subservient to the determinations of decision makers, or that courts mush show blind reverence to their
interpretations. Deference means respect for the decision-making process of adjudicative bodies with regard to both
the facts and the law. Within the context of the reasonableness standard, courts will give due consideration to the
determination of decision makers.
A policy of deference “recognizes the reality that, in many instances, those working day to day in the
implementation of frequently complex administrative schemes have or will develop a considerable degree of
expertise or field sensitivity to the imperatives and nuances of the legislative regime.” (Mullan)
[58-76]
Correctness review has been found to apply to constitutional questions regarding the division of powers between
Parliament and the provinces in the Constitution Act, 1867. Administrative bodies must also be correct in their
determinations of true questions of jurisdiction or vires. “Jurisdiction” is intended in the narrow sense of whether or
not the tribunal had the authority to make the inquiry.
Courts must also continue to substitute their own view of the correct answer where the question at issue is one of
general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized
area of expertise” (Toronto (City) v. C.U.P.E.). Because of their impact on the administration of justice as a whole,
such questions require uniform and consistent answers.
The process of judicial review involves two steps:
1. Has the jurisprudence already determined the degree of deference to be accorded, and
2. If not, then courts must proceed to an analysis of the factors making it possible to identify the proper standard
of review.
Proper Standard of Review on the Statutory Interpretation Issue - REASONABLENESS [66-70]
The question to be answered is whether, in light of the privative clause, the regime under which the adjudicator acted,
and the nature of the question of law involved, a standard of correctness should apply. The inclusion of a full privative
clause in the PSLRA gives rise to a strong indication that the reasonableness standard of review will apply.
The nature of the regime also favours the standard of reasonableness. Adjudicators acting under the PSLRA can be
presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as
related legislation that they might often encounter in the course of their functions.
The remedial nature of s. 100.1 and its provision for timely and binding settlements of disputes also imply that a
reasonableness review is appropriate.
Finally, the nature of the legal question at issue is not one that is of central importance to the legal system and outside
the specialized expertise of the adjudicator. This also suggests that the standard of reasonableness should apply.
Was the Adjudicator’s Interpretation Unreasonable? [72-76]
It does not reach the standard of reasonableness  NO, the reasoning process of the adjudicator was “deeply flawed”.
It was “outside the range of admissible statutory interpretations.”
The interpretation of the law is always contextual. The law does not operate in a vacuum. By giving the PSLRA
an interpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to
provide — or even have — such reasons, the adjudicator adopted a reasoning process that was fundamentally
inconsistent with the employment contract and, thus, fatally flawed. There is no requirement that the employer show
cause before dismissal. No reasonable interpretation can lead to that result.
The combined effect of s. 97(2.1) and s. 100.1 cannot, on any reasonable interpretation, remove the
employer’s right under contract law to discharge an employee with reasonable notice or pay in lieu of
notice.
 49
The Dunsmuir criteria and review post-Dunsmuir
The effect of a statutory standard of review on the standard of review analysis.

Readings:
Canada (Fisheries and Oceans) v. David Suzuki Foundation, [2012] FCA 40
Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals

Canada (Fisheries and Oceans) v. David Suzuki Foundation, [2012] FCA 40

Facts:
The Minister of Fisheries and Oceans is appealing a judgment of the Federal Court which declared that ministerial
discretion does not “legally protect” critical habitat under section 58 of the Species at Risk Act. He declared that it
was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in a protection statement
concerning the critical habitat of the Northeast Pacific Northern and Southern populations of killer whales.
Subsection 58(5) of the SARA provides that the Minister must make an order under subsections 58(1) and (4)
protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat “is not legally
protected by provisions in, or measures under, this or any other Act of Parliament. The Minister had determined that
the Fisheries Act legally protected some aspects of the critical habitat of killer whales and could thus be resorted to
as a substitute to a protection order under the SARA.
The Federal Court judge ruled that the Minister may avoid issuing a critical habitat protection order under the SARA
only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under
a protection order. The measures available to the Minister under the Fisheries Act could be diluted under the sweeping
and largely unfettered discretions granted to the Minister under that statute. He concluded that the Fisheries Act could
not be resorted to as a substitute to a critical habitat protection order under the SARA. The Minister submits that
Parliament made him responsible for the administration of the regulatory schemes of the SARA and of the Fisheries
Act; hence, his interpretation of their provisions is entitled to deference.
Issue: What is the standard of review? Did the Minister err by relying on the provisions of the Fisheries Act of its
regulations in making the Killer Whales Protection statement?
Reasoning:
Mainville
No deference is owed to the Minister as to the interpretation of the relevant provisions of the SARA or of the Fisheries
Act. The reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible
for its implementation unless Parliament has provided otherwise. Where an application for judicial review of a
decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a
provision of the SARA – or of the Fisheries Act as it relates to the SARA – the Minister's interpretation must be
reviewed on a standard of correctness.
When Parliament adopted section 58 of the SARA, its intent was to provide for compulsory and non-discretionary
legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species.
The Minister must make a protection order under subsections 58(1) and (4) of the SARA to ensure the protection of
that habitat.
If the Minister's position were accepted, the compulsory and non-discretionary protection scheme set out by
Parliament under the SARA would be transformed into a protection scheme largely subject to ministerial discretion.
Such was not Parliament's intent in adopting the SARA.

Standard of review
At its core, the principal question before this Court concerns the meaning of the words “legally protected by provisions
in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the SARA. The Minister
submits that Parliament has entrusted him with the responsibility to manage the regulatory schemes under the SARA
and the Fisheries Act, and that consequently, his interpretation of section 58 of the SARA – and of the provisions of
the Fisheries Act and of its regulations as they relate to that section – should be given deference.
Dunsmuir  deference must be shown to administrative tribunal when it interprets a provision of its enabling or home
statute or statutes closely connected to its functions. No deference is owed by this Court to the Minister as to the
interpretation of the relevant provisions of the SARA or of the Fisheries Act and its regulations.
 50
Thus, if Parliament (or a provincial legislature) has adopted a privative clause providing that the decisions of
an administrative tribunal – or of any other administrative decision maker – are not subject to judicial review
for error of law, the courts should strive to respect that legislative intent and should only interfere where a
given decision is unreasonable.
Some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which
errors of law result in the loss of jurisdiction.
Penzim + Pushpanathan  Central question in ascertaining the standard of review is to determine the legislative
intent.
Penzim + Southam  Pragmatic + functional approach. Factors such as the nature of the problem before the tribunal,
the wording of the enabling (or “home”) statute, the purpose of that statute, and the areas of expertise could be
considered to ascertain legislative intent, in addition to the presence or absence of a privative clause.

Dunsmuir at paragraph 30, “…determining the applicable standard of review is accomplished by establishing
legislative intent.” Judicial review is intimately connected with the preservation of the rule of law and with
maintaining legislative supremacy.
Dunsmuir has set out a two-step process:
o First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded with regard to a particular question;
o Second, where the first inquiry proves unfruitful, courts must proceed to a standard of review analysis
involving the factors making it possible to identify the proper standard of review.
In case of an administrative tribunal exercising adjudicative functions in the context of an adversarial process, and
explicitly or implicitly empowered by its enabling statute to decide questions of law, judicial deference will normally
extend to its interpretation of its enabling statute or of a statute closely connected to its functions.
Deference on a question of law will not always apply, notably where the administrative body whose decision
or action is subject to review is not acting as an adjudicative tribunal, is not protected by a privative clause,
and is not empowered by its enabling legislation to authoritatively decide questions of law.

The analysis must be contextual:

1. The presence or absence of a privative clause;
2. The purpose of the tribunal as determined by interpretation of enabling legislation;
3. The nature of the question at issue, and;
4. The expertise of the tribunal.
In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the
application of the reasonableness standard in a specific case.

Dunsmuir  “[a]n exhaustive review is not required in every case to determine the proper standard of review.
“at an institutional level, adjudicators … can be presumed to hold relative expertise in the interpretation of
the legislation that gives them their mandate, as well as related legislation that they might often encounter in
the course of their functions
Since Dunsmuir, unless the situation is exceptional, the interpretation by an adjudicative tribunal of its enabling statute
or of statutes closely related to its functions should be presumed to be a question of statutory interpretation subject to
deference on judicial review. By empowering an administrative tribunal to adjudicate a matter between parties,
Parliament is presumed to have restricted judicial review of that tribunal's interpretation of its enabling statute and of
statutes closely connected to its adjudicative functions. That presumption may however be rebutted if it can be found
that Parliament's intent is inconsistent with the presumption.

The issues in this appeal concern the interpretation of a statute by a minister who is not acting as an adjudicator
and who thus has no implicit power to decide questions of law. The Minister must take a view on what the
statute means in order to act. But this is not the same as having a power delegated by Parliament to decide
questions of law. The presumption of deference resulting from Dunsmuir does not extend to these
circumstances

Standard of review analysis

Neither the SARA nor the Fisheries Act contains a privative clause. This is a strong indication of Parliament's intent
not to shield the Minister's legal interpretation of these statutes from judicial review. The purpose of section 58 is “to
 51
ensure that […] all the critical habitat is protected”. Hence, under subsection 58(5), the Minister “must” make a
protection order to protect identified critical habitat unless that habitat is “legally protected by provisions in, or
measures under, this or any other Act of Parliament”. This is an indication that Parliament has greatly restricted the
Minister's discretion.
The Minister acts in an administrative capacity, and not as an adjudicator, when preparing and issuing a protection
statement under subsection 58(5) of the SARA. This is further indication of the legislative intent to empower the
courts with authority to adjudicate these issues on a standard correctness. The question in issue is one of statutory
interpretation which the courts are best equipped to answer in the circumstances of this case.

Finally, though the Minister – acting on the advice of the officials of the Department of Fisheries and Oceans – can
certainly claim expertise in the management of the fisheries and of fish habitat, this does not confer on the Minister
expertise in the interpretation of statutes. Expertise in fisheries does not necessarily confer special legal expertise to
interpret the statutory provisions of the SARA or of the Fisheries Act.

Did the Minister err by relying on the provisions of the Fisheries Act of its regulations in making the Killer Whales
Protection statement?
If we were to accept the Minister's position, the compulsory non-discretionary critical habitat protection scheme under
the SARA would be effectively replaced by the discretionary management scheme of the Fisheries Act. That is not
what the SARA provides.
Parliament's intent was to avoid interference with and destruction of critical habitat critical habitat must be preserved
through legally enforceable measures. Legal protection scheme is not a regulatory management scheme. Had
Parliament's intent been to authorize the Minister to regulate critical habitat of aquatic species through existing
regulatory schemes – such as the Fisheries Act – it would not have adopted a provision requiring the compulsory non-
discretionary legal protection of that habitat.
Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of the Species at Risk
Act, and it was unlawful for the Minister to have cited provisions of the Fisheries Act in the Killer Whales Protection
Statement where such provisions are subject to ministerial discretion.

Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals
 52
Review of discretion
Grants of discretion, and the Baker review of discretion on a reasonableness standard. Other grounds of review of
discretion.

Readings:
Chapter 11, Administrative Discretion; pp. 381-406
Baker v. Canada (Minister of Citizenship and Immigration) [1999] (section on substantive review)
Roncarelli v. Duplessis [1959] (review)

Class Notes:
Rand J vs Cartwright J
Improper purpose Privileges policy
Irrelevant consideration Law unto themselves
“Unwritten” vs underlying Abstinence

Within the larger review of substance, we can roughly divide the cases into two:
1. Interpretation of statutory provision (interpretation of law) – pragmatic and functional approach (CUPE,
Pushpanathan) until Baker
2. Discretionary power – power that the legislature has given to administrators for administrative reasons for the
sake of flexibility and filling in the gaps left by the legislation.

Administrative decision makers are really laws unto themselves. Courts may intervene where discretion applies but the
default is that they would be reviewing where it was patently unreasonable or in bad faith, improper purpose,
irrelevant considerations, not considering all relevant factors, fettering

Old Framework – the framework in play before Baker

– Bad faith: taking a bribe, for example.
– Improper purpose: Roncarelli, for example
– Irrelevant considerations: see Baker, poverty, for example
– Not considering all relevant factors
– Fettering: hands tied by a superior and the superior made the decision in place of the official responsible
(Roncarelli – Duplessis fettered the decision)
Understood to work on the basis of two particular distinctions: judges were not assessing the merits, but the legality;
and whether a particular factor was relevant vs. its weight.

Baker Framework
Old framework + questions of law and discretion should be understood as a unified part of admin law – and that both
will be subject to a standard of review question (which in Baker was still the pragmatic and functional approach)
The same over-arching approach applies. There are 5 considerations judges ought to consider:
1. Bounds of statute
2. Rule of law
3. Administrative law principles
4. Charter
5. Fundamental values of Canadian society – (opens door to question, how do we go about deciding fundamental
values?)

She looks to 3 places to inform her decision:

1. Statute – she sees purpose of family reunification
2. International law – this was controversial. Canada has historically followed the principle of dualism. Justice
L’Heureux Dubé uses the presumption of conformity  if law can be interpreted so that it conforms to
international law, it should.
3. Canadian Values  in this case, the ministerial guidelines used as “soft law”. The minister is not a law maker,
but of great assistance in determining reasonableness in the exercise of discretion of power.
 53

Literalist view of discretion – on exactly the same facts, an individual should be able to make different decisions on each
case. This is a problem because this is ad hoc, and a hodge-podge of intuition – everyone should be equal before the law.
Discriminating against no one, and privileging no one.
Fundamental reason discretion threatens rule of law:
 Implicit in understanding rule of law is that like cases should have like treatment
 This is a fundamental element of common law
 Discretion implies that one is NOT bound by how things have been decided before

Reception of International Law

“Convention on the rights of the child” – arts. 3 and 10 both instructed decision-makers to treat the best interests of the
child as a primary consideration in administrative decisions. Federal Court of Appeal was shocked – thought this was
unreasonable. The effect would be a violation of the separation of powers, turning the executive into a legislature.
Some countries are “monist” – international legal obligations have direct effect on domestic law (Netherlands, e.g.).
Canada is “dualist” – international law operates at a different level than domestic law. If the executive ratifies a treaty,
that treaty does not have immediate effect. It must be implemented into the domestic law by the legislature.
“Presumption of conformity”  reminiscent of procedural fairness. Legislation is always presumed to be enacted
within a particular legal and social context. There is a presumption that our domestic legislation conforms to Canada’s
international legal obligation.

Chapter 11, Administrative Discretion; pp. 381-406

“The concept of discretion refers to decision 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.” (Baker)
Is administrative discretion governed by the rule of law, subject to judicial oversight, or is it a political phenomenon,
subject to political controls?

The Role of Discretion and How it Was Viewed by Academics

In the Administrative State:
Deciding individual cases: the legislator or regulating authority cannot imagine all the particular situations that are
likely to arise under any given scheme, so it is impossible for them to formally conceive a comprehensive set of
binding rules.
Baker: the minister was given the ability to take into account a variety of factual situations that let to
“exemption” or “facilitation”
Roncarelli: the Liquor commission was delegated the power to “cancel any [liquor] permit at its discretion.”
Adopting general norms: many statutory provision expressly confer discretionary powers to adopt binding rules of
general application (regulations, bylaws, orders, tariffs, etc.). This is justified based on expertise and time constraints
and information. Delegation to the executive increases efficiency and flexibility of legislative schemes. The executive
endowed with discretion also has implicit power to adopt non-binding rules, such as “directive”, “guidelines” and
“manuals”  soft law.
Discretion and Academics
Disagreement over discretion as either arbitrariness or legitimate instrument for the welfare state.
A.V. Dicey  discretion is arbitrary power. “Where there is discretion there is room for arbitrariness”. The
executive may need discretionary power in exceptional circumstances, such as war. However, legislative
delegations of discretion are problematic. Decisions of the executive based on law could be properly
controlled by the court, but decisions based on discretion could not, because they dealt with public business
and were therefore made in a “lawless void.”
Lack of predictability  thus contrary to the rule of law.
Supporters of the welfare state perceived discretion as an instrument of welfare. W.A. Robson viewed the legitimacy
of the welfare state as depending on administrative tribunals to “exhibit a judicial frame of mind” or a “spirit of
justice”.

Discretion from Roncarelli to Baker

 54
The traditional approach to judicial supervision of administrative exercises of discretion operated under specific heads
or grounds of review (abuse of discretion).
Roncarelli  discretion is limited by legal principles but the two visions of discretion articulated by the majority and
minority opinions makes the case important in a discussion of discretion. Rand J. held that Duplessis lacked any legal
justification for cancelling the liquor license even though the statute stated that the commission could “cancel any
permit at its discretion.” For Rand J., “in public regulation of this sort there is no such thing as absolute and
untrammeled discretion,” regardless of the formal statutory language. Discretion could not be viewed as a pure
exercise of power. For discretion to be legally exercised, it had to pursue legitimate purposes and take into account
the situation of the individual affected by the decision.
Cartright J., for the dissent, took the position that no actionable wrong had been committed through the
cancellation of Roncarelli’s license. The commission had unfettered discretion to cancel a permit since the
statute contained no guidance as to the relevant circumstances for cancelling a permit. Where no formal limits
were prescribed and the statute conferred entire discretion on the decision maker, he is a “law unto itself.”
Rand J.  bottom-up approach, perspective of the individual affected by the decision.
Cartright J.  top-down approach, public authorities need to be free from legal control absent statutory imperatives.
Unauthorized Object or Purpose, Irrelevant Considerations
Decision makers must exercise discretion in line with the purposes of the statute AND discretion cannot be exercised
on the basis of “irrelevant” considerations. These two often overlap.
Old Framework:
Bad Faith  discretion necessarily implies good faith in discharging public duty.
Acting Under Dictation or Influence  only a decision-maker can exercise discretion when that discretion is
delegated by parliament.
Wrongful Delegation of Powers  discretion is presumed to be bestowed on executive decision-makers on
the basis of their expertise; cannot delegate that responsibility to another.
Fettering of Discretion  decision-makers cannot decide in advance how they will exercise their discretion.
Unreasonableness  a decision so outrageous in its defiance of logic or accepted moral standards that no
sensible person could have arrived at it. (high standard and rarely established before the courts)

Discretion from Baker to Dunsmuir and Beyond

The Contemporary Framework of Analysis
Traditionally, abuse of discretion was limited to the above stated grounds. For LHD, the traditional approach to the
review of discretion with its limited grounds of review incorporates two ideas: (1) the decision maker must be given
important margin of maneuver when exercising discretion and (2) the decision make must act within certain limits.
For her, there was no clear line between discretionary and non-discretionary decisions. A review of discretion could
follow the P&F approach because the factors it put forward to determine the applicable standard of review in any
given case could accommodate the specificity of discretionary powers.
“Discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the
rule of law, the principles of administrative law, the fundamental values of Canadian society, and the
principles of the Charter.” (Baker, para. 56)
She concludes that the minister’s discretion is to be evaluated under reasonableness simpliciter and that the decision
failed to meet the required standard. The officer failed to give “serious weight and consideration to the interests of the
children.” (para. 65) This demonstrated that it was “inconsistent with the values underlying the grant of discretion”
and therefore unreasonable.
The court had to engage in a process of statutory interpretation though a contextual approach. This involved taking
into account the objectives of the Immigration Act, international instruments, and ministerial guidelines. The
application of the P&F approach to the control of discretion marked the end of the law-discretion dichotomy in the
domain of substantive judicial review. Discretion can be controlled based on reasonableness.
The Baker case also softened the dichotomy between procedure and substance. Procedure may affect the substance
of the decision. Baker is in line with Nicholson, which shifted the starting point for determining the legality of
executive action, from the nature of the power to the consequences of the exercise of that power on the individual.
The duty to give reasons does not depend on the kind of power that is exercised by the executive, but rather on the
consideration that the dignity of the individual requires that he or she be told why a decision that is critical to his or
her future was made.
 55
In Dunsmuir, both questions of law and discretion are to be reviewed under the same approach. Dunsmuir clearly
indicates that questions of discretion “generally attract a standard of reasonableness” and that “deference will usually
apply automatically” to that kind of decision.
The Challenges
What is left of the previous approach?  “Discretion must still be exercised … in line with general principles of
administrative law governing the exercise of discretion.”
One might think that those among the previous grounds of review that rely on questions of fact are unaffected
by that approach. However, the grounds more closely related to an exercise of statutory interpretation might
need to be approached in conformity with the appropriate standard of review. This could mean that reviewing
courts will be called on to intervene only if it was unreasonable.
This is not clearly settled by the Supreme Court, but there are indications courts will not easily give up on
determining those elements based on what seems to be a correctness standard.
The Level of Deference  Dunsmuir raises questions more directly related to the relevance and impact of the standard
of correctness in judicial review of discretionary decisions. Holds that the question of discretion is reasonableness.
However, the SCC pronouncements indicate that the discretionary nature of the decision is not necessarily
the determining factor for the identification of the standard of review.
The interpretation of the home statute = reasonableness; true questions of jurisdiction = correctness.
Doré  the Charter framework is inappropriate in the case of judicial challenges to administrative decisions
as applied to individual cases, as opposed to “a law or other rule of general application.” The court in Doré
indicates that the standard of reasonableness is more appropriate in the context of Charter arguments.
To “Reweigh” or Not to “Reweigh”  when called on the review the validity of any given exercise of discretion, can
the reviewing court “reweigh” the considerations that were taken into account by the decision maker?
Suresh says NO. The authority required to “weigh” the relevant considerations in Baker was the minister, not
the reviewing court. Reviewing courts must therefore limit themselves to ensuring that only relevant
considerations have been taken into account; weighing is for the decision maker alone.
Reaffirmed in Lake and Khosa – reweighing was not the function of the reviewing court.
It is difficult to reconcile the principles established in Baker with the position in Suresh, Lake and Khosa.

Conclusion
Discretion is undeniably necessary: “Discretion allows the administrative state the flexibility that is required in order
either to make individual decisions adapted to particular situations, or to conceive general, regulatory norms that will
structure the way in which a particular legislative scheme is to be concretized.” The proper place of discretion within
a state governed by the rule of law is not easy to find. The view of discretion as governed by legal principles seems
to be formally recognized by the judiciary. But a concrete application of such discretion presents great challenges that
the courts have not entirely overcome.
“Discretion as Dialogue”  builds primarily on a bottom-up approach to discretionary power and seeks to
foster reciprocal relationship between the decision maker and the individual. It allows individuals to expose
the particularities of his situation and requires the decision maker to demonstrate openness and listening. It
requires the parties to transcend their particular position in order to deliberate on the norms and values that
should govern the exercise of discretion. The effect of the dialogue is to narrow the range of outcomes that a
decision-maker is legally entitled to reach, because the decision must be responsive to the dialogue that
preceded it.
“Discretion as Power”  top-down perspective, where discretionary powers are seen as “direct descendants
of what were once considered to be unreviewable or unjusticiable executive prerogatives.”
Author believes that discretion should be conceived as a dialogue. It best explains the development that has occurred
in administrative law over the past 30 years: why courts have been willing to impose procedural obligations on
decision-makers (Nicholson) and obligations to justify their decisions through a duty to give reasons (Baker). It also
justifies the evolution of the law of discretion because it suggests how discretion is compatible with both the rule of
law and democracy.
 56
Baker v. Canada (Minister of Citizenship and Immigration) (section on standard of review) paras. 57-65
The appropriate standard of review: based on the “pragmatic and functional” approach from Pushpanathan.
No privative clause in the Immigration Act  lower level of deference
Expertise  the decision maker is the Minister of Citizenship and Immigration therefore there should be
more deference.
Purpose of the particular provision and the Act as a whole  greater deference should be given to the Minister
in deciding when to exempt applicants on humanitarian and compassionate grounds.
Nature of the problem in question  does not involve the application or interpretation of definitive legal
rules.
Given the highly discretionary and fact-based nature of this decision, there should be deference in this case.
The appropriate standard of review is reasonableness simpliciter.
Was the decision unreasonable? The approach taken to the children’s interests shows that this decision was
unreasonable in the sense contemplated in Southam. The failure to give serious weight and consideration to the
interests f the children constitutes an unreasonable exercise of discretion.

Discretion Continued
No reweighing? Backsliding from Baker…

Readings:
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] (section on standard of review and “no
reweighing”)
Canada (Citizenship and Immigration) v. Khosa [2009]

Class Notes:
Judges have in their mind the merits of the decision and the legality of a decision.
1. Merits – taking into account relevant considerations and assigning particular weight and coming out with their
decision
2. Legality – small subset of the merits, which articulates old framework of discretionary decisions before Baker,
dealing with the legality of the decision. They can assess the legality of the decision without dealing with the
merits.

No reweighing comes from this underlying framework. Baker is revolutionary because it says that some factors deserve
special regard – some interests at play that cannot be violated without strong justification. In Baker, this was the best
interests of the child.

Suresh v. Canada (Minister of Citizenship and Immigration) (section on standard of review and “no
reweighing”) [2002]
Standard of Review:
Consideration of four types of issues:
(1) Constitutional review of the provision of the Immigration Act  Would it shock the Canadian conscience to
deport Suresh once a substantial risk of torture has been established? S. 7 of the Charter.
(2) Whether Suresh’s presence in Canada constitutes a danger to national security  what standard should be
adopted? Should set aside the Minister’s discretionary decision if it is patently unreasonable (arbitrary or in
bad faith, cannot be supported by the evidence, or the Minister failed to consider the appropriate factors).
(3) Whether Suresh faces a substantial risk of torture upon return to Sri Lanka  this is a threshold question, in
large part a fact-driven inquiry. This attracts deference by the reviewing court to the Minister’s decision. The
court may not reweigh the factors considered by the Minister, but may intervene if the decision is not
supported by the evidence or fails to consider the appropriate factors.
(4) Whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional
rights.
Pragmatic and Functional approach: (1) Parliament intended only a limited right of appeal; (2) Relative expertise of
the decision-maker favours deference; (3) Purpose of the legislation favours deference. The Minister is in a superior
 57
position to a court in balancing the relative factors; (4) Nature of the case points to deference due to the fact that it is
highly fact-based and contextual.
These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b)
opinion, reviewable only where the Minister makes a patently unreasonable decision.
Reweighing
The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.
The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion. The
Court in Baker made it clear that its approach “should not be seen as reducing the level of deference given to decisions
of a highly discretionary nature” and that any ministerial obligation to consider certain factors “gives the applicant no
right to a particular outcome or to the application of a particular legal test.”
Parliament’s task: establish the criteria and procedures governing deportation, within the limits of the Constitution.
Minister’s task: make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution.
Court’s task: determine whether the Minister has exercised her decision-making power within the constraints imposed
by Parliament’s legislation and the Constitution.

Canada (Citizenship and Immigration) v. Khosa [2009] SCC 12

Facts: Khosa had immigrated with his parents at age 14. He is a landed immigrant. At age 21 he was killed someone
while apparently street racing and was convicted of criminal negligence causing death. He was set to be deported. He
appealed deportation on humanitarian grounds. Immigration Appeal Division (IAD) refused his request. FCA found
this unreasonable.
Judicial History: Trial judge applied patent unreasonableness standard and said decision did not meet the standard to
be overturned. Court of Appeal said it should be reasonableness simpliciter and the decision was NOT reasonable and
should be overturned.
Issue: What is the standard of review? Does the IAD decision fall within it?
Holding: Correct standard is reasonableness. Appeal allowed, decision of the IAD reinstated.
Reasoning:
Dunsmuir recognized that with or without a privative clause a measure of deference has come to be accepted as
appropriate where a particular decision had been allocated to an administrative decision maker rather than to the
courts. Deference recognizes that the day to day work of the tribunal with a particular scheme will allow them to
develop expertise in applying it.
Section 18.1 of the FCA
Interpretation of the Federal Courts Act must be flexible enough to apply to the decision of hundreds of different
administrators.
Matter of statutory interpretation
The FCA was created to transfer the jurisdiction of certain writs away from provincial courts into federal courts. There
is nothing to indicate that the legislature intended to eliminate the long standing existence of the courts discretion in
judicial review remedies. The original intent of the statute was to ensure that federal tribunals were evaluated by
federal courts. Therefore, the courts get discretion to grant or withhold relief.
Judicial intervention is authorized where (1) the tribunal acted without jurisdiction, beyond jurisdiction or refused its
jurisdiction. According to Dunsmuir when reviewed on this there is a correctness standard. It is also authorized when
(2) the tribunal failed to observe a principle of natural justice, procedural fairness or other procedure. Dunsmuir says
that fairness is to be done on a correctness standard. Again relief to be granted is governed by the common law.
Intervention is authorized when (3) the tribunal erred in law. This is also on a correctness standard. However Dunsmuir
says that if the interpretation of the home statute by an expert decision maker is reasonable, then the judge will have
to stay out of it. Intervention is also authorized where (4) the tribunal based its decision on an erroneous finding of
fact that it made in a perverse or capricious manner. This demonstrates that the legislator intended that fact findings
by the tribunal get high deference, thus via Dunsmuir, reasonableness. Finally the court can intervene (5) if the tribunal
acted in a way that was contrary to law. This includes law outside the FCA. More evidence that the FCA is not meant
to be a self-contained code. A legislature has the power to specify a standard of review if it manifests a clear intention
to do so.
However, courts will not interpret grounds of review as standards of review; they will apply Dunsmuir principles;
they will presume the existence of a grant to withhold relief based on the Dunsmuir teaching of restraint.

Standard of review
The process of judicial review involves two steps:
 58
1) Review to determine the standard of review. Reasonableness or correctness.
2) when jurisprudential categories are not conclusive, look at
- Is there a privative clause
- Purpose of the tribunal as demonstrated by the enabling statute
- The nature of the issue
- The expertise of the tribunal dealing with their legislation

In this case there is a privative clause indicating that judicial intervention should be deterred. There is no statutory
right of appeal. The purpose of the IAD is to determine a wide range of appeals under the IRPA. They can also make
exceptions to the IRPA on humanitarian and compassionate grounds. They IAD had the advantage of conducting the
hearings and assessing the evidence. IAD members have considerable expertise in determining appeals under the
IRPA. All these factors point to deference. The standard is reasonableness.

Applying the Reasonableness Standard

Where reasonableness is used it requires deference from courts. They can’t substitute their own decision for that of
the tribunal. They have to determine whether the decision falls within a reasonable range of outcomes. In this case
because of the considerable deference owed to the IAD and the broad scope of discretion.
Fish J. takes a different view of what the scope of reasonable outcomes are in this case because he is seeking
exceptional and discretionary relief. Dunsmuir says that you have to look into the qualities that make a decision
reasonable. If it falls within a range of possible, acceptable outcomes which are defensible on the facts and law then
it is okay. This also reinforces the need for reasons. However , the lack of good reasons should not dilute the fact that
the tribunal gets a lot of deference. Both the dissenting and majority reasons of the IAD demonstrate the reasons why
they made their decision. Courts should not reweigh the facts. The decision not to grant an exception to the removal
order was within the range of reasonable outcomes.
 59
Discretion Continued
Backsliding from the backslide!

Readings:
Kanthasamy v. Canada (Citizenship and Immigration) [2015]
Stratas J, A Plea for Doctrinal Coherence and Consistency

Kanthasamy v. Canada (Citizenship and Immigration) [2015]

Facts:
K is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and
questioning by the Sri Lankan army and police, K’s family arranged for him to travel to Canada to live with his uncle.
He was 16 years old. When he arrived in Canada, he made a claim for refugee protection which was refused. K’s
application for a pre‑removal risk assessment was also rejected. K additionally filed an application for humanitarian
and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act seeking to apply for permanent
resident status from within Canada. The Officer reviewing his application concluded that relief was not justified as
she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or
disproportionate. On judicial review, the Federal Court found that the Officer’s decision to deny relief was reasonable.
The Federal Court of Appeal agreed.
Held (Moldaver and Wagner JJ. dissenting): The appeal should be allowed. The Officer’s decision was unreasonable
and should be set aside.
Reasoning:
Abella J. (majority):
Section 25(1) of the Immigration and Refugee Protection Act  gives the Minister discretion to exempt foreign
nationals — individuals who are neither citizens nor permanent residents — from the ordinary requirements of the
Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations.
Includes the best interests of the child affected.
Purpose of the s. 25(1): offer equitable relief.
The Ministerial Guidelines assist immigration officers in determining whether humanitarian and
compassionate considerations warrant relief under s. 25(1). The determination of whether there are sufficient
grounds to justify granting a humanitarian and compassionate application is done by an “assessment of
hardship”. What warrants relief will depend on the facts and context of the case. The Guidelines state that
applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under
s. 25(1) to be granted.
The Guidelines are useful but not legally binding – not exhaustive or restrictive. The words “unusual and undeserved
or disproportionate hardship” should be treated as descriptive, not as creating three new thresholds for relief separate
and apart from the humanitarian purpose of s. 25(1). The three adjectives should be seen as instructive but not
determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

Section 25(1) also refers to the need to take into account the best interests of a child directly affected. A decision
under s. 25(1) will be found to be unreasonable if the interests of children affected by the decision are not sufficiently
considered. Because children may experience greater hardship than adults faced with a comparable situation,
circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may
nonetheless entitle a child to relief.

In this case, the Officer failed to give serious consideration to K’s youth, his mental health, and the evidence
that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach,
assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”.
The Officer’s literal obedience to those words, rather than looking at K’s circumstances as a whole, led her to see
each of them as a distinct legal test. This had the effect of improperly restricting her discretion, rendering her decision
unreasonable.

The Officer concluded that there was no evidence of discrimination. This approach however, failed to account for the
fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is
 60
discriminated against. Evidence of discrimination experienced by others who share the applicant’s identity is
relevant under s. 25(1) , whether or not the applicant has evidence that he or she has been personally targeted.

The Officer misconstrued the best interests of the child analysis, disregarding the guiding admonition that children
cannot be said to be deserving of hardship. The Officer avoided the requisite analysis of whether, in light of the
humanitarian purpose of s. 25(1) , the evidence as a whole justified relief. This approach unduly fettered her discretion
and led to its unreasonable exercise.

Per Moldaver and Wagner JJ. (dissenting):

The scheme of the Immigration and Refugee Protection Act and the intention of Parliament in enacting s. 25(1)
suggest that this provision is meant to provide a flexible — but exceptional — mechanism for relief. Parliament did
not intend to provide relief on a routine basis. The test for humanitarian and compassionate (“H&C”) relief
must balance the dual characteristics of stringency and flexibility and reflect the broad range of factors that
may be relevant.

The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant
can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. However,
the test falls down on the flexibility side as it risks excluding or diminishing the weight that some factors may deserve
in deciding whether H&C relief should be granted. Section 25(1) does not limit when the relevant H&C
considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only
that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms
because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to
enter or remain in Canada. A more comprehensive approach is therefore required.

The test for granting relief should be reframed: whether, having regard to all of the circumstances, including the
exceptional nature of H&C relief, the applicant has demonstrated that decent, fair‑minded Canadians would
find it simply unacceptable to deny the relief sought.

The Officer’s decision in this case falls within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary
and is entitled to deference.

The decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as
a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual
and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors.
The Officer provided intelligible reasons for concluding that K did not meet his onus of establishing that he should
be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship
framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are
reasonable, and well‑supported by the record. While aspects of K’s situation warrant sympathy, sympathetic
circumstances alone do not meet the threshold required to obtain relief.

Although the Officer applied the hardship standard from the Guidelines, she did not do so in a way that fettered her
discretion. Further, had she applied the test reframed, she would inevitably have come to the same result. The Officer’s
decision to deny an exemption to K was reasonable.

Stratas J, A Plea for Doctrinal Coherence and Consistency

“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew
tears them down to build anew, seemingly without an overall plan.”
1. Decisions are either judicial, quasi-judicial or administrative (Martineau, 1978)
2. “Pragmatic and Functional” test (Bibeault, 1988)
3. Addition of reasonableness standard (Southam, 1997)
4. Follow the principles and methodology in Dunsmuir (2008)
The Supreme Court is often not deciding cases in accordance with the principles in Dunsmuir and other cases decided
under it. Confusion and uncertainty surround many fundamental questions in administrative law.
 61
Fundamental Questions:
1. Does the standard of review matter? It should. In Dunsmuir, the SCC told us to decide between correctness
review and reasonableness review. But the SCC does not always settle the standard of review and sometimes
does not discuss the standard of review at all.
2. What authorities are relevant to the standard of review analysis? Recently the SCC suddenly decreed that pre-
Dunsmuir cases on the standard of review survive only if consistent with “recent developments in the common
law principles of judicial review”, i.e. Dunsmuir and post-Dunsmuir cases. Kanthasamy adds to the confusion
by both dismissing the helpfulness of pre-Dunsmuir cases and then relying exclusively on pre-Dunsmuir cases
to determine the standard of review, all in the same paragraph.
3. When must we go beyond Dunsmuir presumptions and conduct a full standard of review analysis? Dunsmuir
never explained when we should resort to the factors rather than the presumptions. What should we follow?
Presumptions or factors?
4. Does the principle of legislative supremacy matter? In some cases, the SCC follows the intent of the legislator
vis-à-vis the standard of review and sometimes it doesn’t. For example, in cases where the legislator has enacted
a right of appeal from the administrative decision-maker to the reviewing court, the legislator is instructing the
court to interfere as it would in any appeal. Yet, even on questions of law where the standard should be
correctness, there is a presumption that administrative interpretations of legislation are subject to a deferential
reasonableness review (Khosa).
In Doré the Supreme Court, disparaging Slaight, suggests that there is a growing departure from the principle
that legislation governs the scope of authority of administrative decision-makers. This is contrary to the principle
of legislative supremacy, is unsupported by authority, and conflicts with the foundational case of Dunsmuir.
The recent case of Kanthasamy is seen by some as another example where the principle of legislative supremacy
has been flouted. Section 74 of the Immigration and Refugee Protection Act states that appeals can only be taken
to the Federal Court of Appeal if the Federal Court states a certified question on a question of law. This is a
signal from the legislature that the Federal Court of Appeal should answer the question correctly. But in
Kanthasamy, the majority of the SCC disagreed, holding that the standard of review was reasonableness.
5. How do we conduct reasonableness review? What does “reasonableness” mean? The reasonableness standard of
review means different things in different cases. Often the SCC purports to engage in a reasonableness review
(deferential standard) but then acts non-deferentially, imposing its own view of the facts or the law or both over
the view of the administrative decision-maker, without explanation. Sometimes there are exceptions where the
SCC defers to the administrative body but it is inconsistent. Kanthasamy adds to the confusion by being even
more inconsistent. It begins by interpreting the legislative provision as if it were on a standard of correctness,
then considers the standard of review and decides that it’s reasonableness, and then it reviews the administrative
decision-maker’s reasons for error, as if the standard of review were correctness.
Reasonableness requires that we start with the administrative decision and “inquire into the qualities that make
it reasonable.” But often the SCC does its own analysis of the merits and does not analyse the administrative
decision in any depth.
Sometimes under the reasonableness standard the SCC supplements the reasons to uphold an outcome. Sometime
not. We know not why.
6. Where does the Charter fit in? Doré causes doctrinal incoherence regarding the Charter – Dunsmuir stated that
if an administrative decision-maker applies a Charter provision and disregards the legislative provision, the
standard is correctness. But if an administrative decision-maker interprets a Charter provision finding a “Charter
value”, the standard of review is reasonableness. Why? Is Doré still good law? (Loyola)
7. What is the standard of review for procedural fairness? Why and when must be defer or not defer?
8. How are appellate courts to review first-instance judicial review decisions? Appellate courts are supposed to
“step into the shoes” of the first instance reviewing court – conducting de novo review of the administrative
decision. But shouldn’t the appeal court apply the normal appellate standard of review, the standard that governs
the relationship between appellate courts and first instance courts?
The author goes on to answer these questions in an effort to achieve doctrinal clarity, consistency, unity and simplicity.
Good luck!
 62
Review of Administrative Decision Involving Charter Rights
The role of the Charter in administrative decision-making. What about the Oakes test? Abella and Deschamps JJ. vs. the
majority in Multani.

Readings:
Chapter 12, The Charter and Administrative Law; pp. 422 – 437
Slaight Communications Inc. v. Davidson [1989]
Little Sisters [2000] (headnote)
Multani v. Commission scolaire Marguerite Bourgeoys [2006] (headnote)

Chapter 12, The Charter and Administrative Law; pp. 422 – 437
Review of Administrative Decisions Under the Charter
Very inconsistent approach in how the court deals with administrative decisions that engages rights protected by the
Charter. Doré sets the foundation for a new approach. It resolves a significant debate as to the appropriate approach
to take. Inconsistency is found in the following: whether, when and how to conduct a s.1 analysis of an administrative
decision that infringes a protected right.
The SCC in Doré upholds the previous decisions, but establishes a new approach that rejects the Oakes test and uses
proportionality instead. Abella  Oakes is appropriate for dealing with a law or rules of general application, but not
for an administrative decision that is said to violate the rights of a particular individual. In the latter case,
reasonableness is used, and will be retained only if it reflects a “proper balance” of implementation of statutory
purposes with the Charter protection. This approach is not revolutions.

The Slaight Framework and Doré

Dickson’s majority decision in Slaight held that the infringement could be saved under s.1. The orders were both
rationally connected to the laudable purpose of the enabling legislation as well as proportionate to its ultimate end –
remedying inequality of bargaining power between employers and employees. “Administrative law unreasonableness,
as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter
review.”
Lamer J.’s framework was employed by Dickson J. in the majority: determine whether the disputed order was made
pursuant to legislation that gives either expressly or by implication the power to infringe a protected right. If yes,
legislation itself must satisfy s.1. If legislation provides broad or imprecise discretion and the authority to infringe a
protected right is not express, then the order must be justified in accordance with s.1. If it cannot be justified, then the
order has exceeded its jurisdiction.
After this decision, the courts were inconsistent when following these steps. Sometimes they would apply a Charter
approach, sometimes an administrative law approach. Doré explicitly says that a decision itself will not invite an
application of the Oakes test. As a result, the dichotomy in Slaight takes on a new meaning: “A person who has his
or her rights infringes as the result of an express authority to do so appears to be in a different position than a person
who sees his or her rights infringed by a decision based on an imprecise authority.”
Two differences: (1) constitutionality of the rule = correctness standard, whereas an individual decision based on
imprecise authority = reasonableness; (2) the evidentiary burden of Oakes falls on person seeking to defend the rule
not on the person attacking it. In case of imprecise authority  burden of showing unreasonableness is on the party
seeking to have it reviewed.

Express Authority to Infringe a Protected Right

Slaight framework: if legislation expressly authorizes the infringement of a Charter right, the legislation must satisfy
the requirements of s.1. But it is silent on what to do with orders that resulted from the legislation. This was clarified
in Doré – “the order will not be subject to the Oakes analysis even if the law or rule that authorizes it could be.” It is
difficult to see why reasonableness analysis, which is primarily concerned w/ “justification, transparency and
intelligibility within the decision-making process,” would necessarily screen out decisions that don’t satisfy s.1. Doré
insists that there conceptual harmony between a reasonableness review and Oakes. But sometimes decision-makers
will skip parts of Oakes. Also if Doré’s assumption is correct, what do we gain by not following Oakes explicitly?
Abella J. believes both frameworks will lead to similar results. Lake stands for giving deference to Minister’s
evaluation of whether the infringement of s.6 is justified in accordance with s.1 (i.e. deference to the s.1 justification
 63
itself). And if this is the model adopted by Doré, then it means that the burden on the government to justify the
infringement is dramatically lighter.
Therefore, seems like most of the litigation that will arise when dealing with this type of issue will be around
determining whether a law has an explicit authority that infringes the Charter (correctness) of if it is imprecise or
discretionary (reasonableness). Little Sisters is case which shows that the course of the infringement can be really
complex. Here there was both an express legislative authority to infringe a protected right, but both rule and
application were subjected to s.1 analysis. In this case the court had applied Oakes for both, which would be currently
inconsistent with Doré.
In PHS Community Services (recent case): court said that Minister’s decisions must always conform to the Charter
as with all other acts of discretion. In this case, the court used a s.1 analysis. Will the reasonableness of Doré provide
a basis for intervention in Charter cases?

Imprecise Authority to Infringe Charter Rights

Prior to Doré the law was not more predictable with respect to imprecise grants of discretion than it was with express
grants of authority to infringe the Charter. Recent application of Oakes to administrative decision is Multani: Charron
J. applied s.1 to the decision (now rejected in Doré); Deschamps and Abella JJ. Applied an administrative law
approach; and LeBel J. offers further variation.
The majority’s approach was problematic here. The practical problem for litigants is when you go to first instance to
complain on imprecise authority, you don’t know if the court agrees that authority limits a right protected by the
Charter and that the limit is not saved by s.1. The court can always resolve your case without resorting to the Charter
(e.g. Baker). Doré doesn’t seem to resolve this question entirely: how do we know that there has been an infringement?
Did not consider administrative law implications where a Charter right was infringed, but the infringement could be
justified under s.1.
Doré seems to provide a solution, however, has problems on its own: “If the correct reading of Doré is that express
authority to infringe a Charter right requires the Oakes analysis, but imprecise authority does not, one can legitimately
question why, when the Constitution is the Supreme Law of Canada, there would be two different approaches to
determining the constitutionality of government action depending on whether it is expressly authorized by legislation
or not.”
In Doré, Abella does not address whether the new approach will yield a more relaxed standard of scrutiny, though
introduction of reasonableness points to this direction. But do the different approaches matter? In Multani there were
3 but they all reached the same conclusion. However, this might have been a fluke…
The difference with the majority in Multani is not the absence of express statutory authority, but rather that s.1 should
be only applied to a “norm or rule general application” and not to a particular decision.
Doré thus might be read to blur the line between the Oakes analysis as an analytic tool on the one hand and compliance
with s.1 on the other. But, it is one thing to say that individual discretionary decision are ill-suited for Oakes, and
another to say that they are a type of government action that can legally infringe a Charter right without needing to
satisfy s.1.

Conclusion
Doré provided much clarity to the debate over whether to apply Oakes to administrative decisions that infringe
Charter rights. Doré is clear that the administrative law approach and the standard of reasonableness will apply.
Approach must work for “balance and proportionality”. It is only a question of whether this approach will provide the
same protection as with Oakes. But this remains to be seen. Abella at least seems to think so, but many problems
remain.

Slaight Communications Inc. v. Davidson [1989]

Facts:
The SCC’s first extended treatment of the Charter’s applicability to administrative decisions. Davidson was radio
time salesman. He was fired and he filed a complaint. The adjudicator found that the “major complaint” was D’s
failure to achieve monthly sales budgets, but there was no evidence to support this. The Adjudicator asked for
disclosure of the “real reason for dismissal” but none was given. The Adjudicator ruled there was no just cause for
dismissal. He ordered payments and that Slaight draft a recommendation letter with certain provisions. This letter was
the only thing Slaight was to give when asked for references (i.e. they were forbidden to say anything else).
Issues: (1) Does s. 61.5(9) para. (c) of the Labour Code allow the adjudicator to order the employer to give the
employee a letter of reference of specified content and to order the employer to say nothing further about the
 64
employee? (2) Does this infringe or deny freedom of speech under s. 2(b) of the Charter
Holding: (1) Yes. (2) Yes, but justified under s. 1 (judgment for Davidson)
Reasoning:
Dickson CJ (majority):
Where a Charter right is clearly at stake and contending values are at issue, review must occur under the Charter
framework for review of legislation rather than under the principles of administrative law.
Unreasonableness in administrative law, as a preliminary standard of review, should not impose a more onerous
standard upon government than would Charter review. Patent unreasonableness is useful in making determinations of
fact. But in terms of value inquiry, should only use this standard in the clearest of cases where a decision could not
be justified under s.1
o Section 1 is better – analysis is more sophisticated
Both the positive order to send the letter and the negative order to refrain from saying anything else about the employee
infringe freedom of expression s. 2(b). Therefore, must go to s. 1 analysis.

Section 1 Analysis
Importance of the Objective
The objective sought, achieved by the positive order (the letter), was counteracting the effects of the unjust dismissal
by enhancing the ability of the employee to seek a new job without being lied about by his previous employer. The
negative order seeks to achieve this same goal, as a complement and reinforcement of the positive order.
The Adjudicator’s remedy in this case was a legislatively-sanctioned attempt to remedy the unequal balance of power
that normally exists between an employer and employee. It is in a class of government actions with the object of
protecting a vulnerable group or its members. In this case, it was designed to address a risk that the inequality would
continue even after the employment relationship had ended.
The court must avoid constitutionalizing inequalities of power such as this one. In this case, protecting the freedom
of expression would amount to continuation of an abuse of an already unequal relationship.

Proportionality
Rational connection:
Negative order is rationally linked to the objective, no less than the positive order. Adjudicator found that Davidson
had been the victim of a personal vendetta or set-up, and that the employer had engaged in bad faith and duplicitous
conduct. Negative order ensured that Slaight didn’t subvert the effect of the letter by unjustifiably maligning Davidson
in the guise of giving a reference.
Minimal impairment:
There was no less intrusive way that the adjudicator could have taken and still have achieved the objective. More
compensation might have addressed the economic effects of being fired, but not the personal effects – work is essential
to personal well-being. Employer was only obliged to state a narrow range of facts that weren’t contested anyway –
unlike in National Bank, employer wasn’t obliged to state opinions. This prohibition is limited since the letter will
only be sent when requested by prospective employers. Besides, the letter cannot be said to have a great beneficial
impact on D’s job hunt. Adjudicator went no further than necessary to achieve the objective.
Deleterious effects:
The effects of the measures are not so deleterious as to outweigh the objective of the measures. Important to take
account of Canada’s international legal obligations. Normally, the suppression of the freedom of expression is a
serious infringement of the Charter and only outweighed by very important objectives. Here, the negative order was
minimally intrusive in a relative sense and the order’s balance makes this a less serious infringement – and so it is
saved by s.1.

Lamer J (dissenting in part):

First does an administrative law analysis; THEN a Charter analysis for the parts of the order that “passed” the
administrative law analysis.
Are the orders reasonable from an administrative law standpoint?
The letter of recommendation is reasonable, but the gag-order isn’t. Letter of recommendation is factual; doesn’t
express opinion. Gag order can be construed as expressing Slaight’s opinion (by saying nothing). This is unreasonable.
Parliament could not have intended such an unreasonable use of the discretion conferred by it. This use of discretion
is never absolute, is subject to review, and cannot be exercised unreasonably by the Tribunal. Adjudicator, in ordering
silence, made a patently unreasonable decision and thus lost his jurisdiction. An adjudicator exercising delegated
 65
powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds
his jurisdiction if he does so. Thus, don’t need to do Charter analysis on the gag order.

Are the orders that weren’t unreasonable from an administrative law standpoint consistent with the Charter?
Adjudicators do not have the power to make orders that infringe the Charter. The Charter does not provide an absolute
guarantee of rights and freedoms. Therefore we are only dealing with an infringement of the Charter if the limitation
on a right or freedom is not kept within reasonable and justifiable limits.
Two basic principles to keep in mind:
- An administrative tribunal may not exceed the jurisdiction it has by statute.
- It must be presumed that legislation conferring an imprecise discretion does not confer the power to infringe
the Charter unless that power is conferred expressly or by necessary implication.
When applying these two principles above to the exercise of discretion leads to one of the following situations:
a) The disputed order was made pursuant to legislation which confers (expressly or implicitly) the power to
infringe a protected right. It’s then necessary to subject the legislation to Oakes test to see if it is a reasonable
limit that can be demonstrably justified in a free and democratic society.
b) The legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise
discretion and does not confer (expressly or implicitly) the power to limit Charter rights. It is then necessary
to subject the order to Oakes test to see if it is a reasonable limit that can be demonstrably justified in a free
and democratic society.
If it is not justified, the administrative tribunal has necessarily exceeded its jurisdiction.
If it is justified, then the administrative tribunal has acted within its jurisdiction.
Here, the order made by the adjudicator is only the exercise of discretion given to him by statute  it is the statute
that limits the right. The letter of recommendation infringes s. 2(b), but this limitation is prescribed by law and can
thus be justified under s. 1. The negative order is unreasonable, and doesn’t even reach the stage of a s. 1 analysis.

Beetz J (dissenting):
3. Both parts of the order violated section 2(b) of the Charter and could not be justified under s.1

Little Sisters [2000] (headnote)

Facts:
L is a bookstore that sells books to the gay and lesbian community. Since it began it has imported 80 to 90% of all its
erotica from the US. Code 9956(a) of Section VII of the Customs Tariff prohibits the importation of things that could
be considered obscene under s.163(8) of the Criminal Code. After lengthy trial, the Trial Judge found that these errors
were caused by the “systemic targeting” of the store’s importations. He concluded that customs legislation infringed
s.2(b) of the Charter, but that it was justified under s.1. He then denied a remedy under s.52(1), but he issued a
declaration under s.24(1) of the Charter that the Customs legislation had at times been construed and applied in a
manner contrary to ss.2(b) and 15(1) of the Charter. The Court of Appeal dismissed the appeal.
Issue: Does the legislation violate s.2(b) and 15(1) of the Charter? [YES] Is it saved by s.1? [YES] Did the
administrative decision violate s.2(b) and 15(1)? [YES]
Reasoning:
McLachlin (+5)
An interpretation of s.163(8) of Criminal Code in Butler does not discriminate vs gay and lesbian community.
Constitution does not prohibit border inspections: inspections can involve detention because Customs officials are
only human, erroneous determinations. If Parliament can prohibit obscenity, and Butler held that you could, then the
prohibition can be imposed at the border and in the country. The only material that was prohibited as obscene is
material that is subject of criminal penalties for those engaged in its production or trafficking (or have possession of
it for those purposes).
Parliament can make regulations and work under the assumption that their rules will be followed: There is no
constitutional rule that says that Parliament has to deal with Customs treatment of constitutionally protected
expressible material by legislation rather than by way of regulation or even by ministerial directive or departmental
practice. “Parliament can proceed on the basis that its enactments will be applied constitutionally.”
A court is the proper forum for resolution of an allegation of obscenity: the department had their chance to
determine whether it could establish on a balance of probabilities that the material was obscene. Since at the
 66
departmental level there were no procedures for taking evidence, this requires the appeal to the court in obscenity
matters to be interpreted as an appeal by way of a trial de novo.
Sexual orientation is definitely analogous ground to the listed personal characteristics of s.15 of the Charter, even if
not listed. The bookstore was entitled to the equal benefit of fair and open customs procedure, and they were adversely
affected in comparison to other individuals importing comparable publications of heterosexual nature.
Customs legislation (except reverse onus provision of s.152(3)) infringes s.2(b) of the Charter, and it is saved by s.1.
“Customs officials have no authority to deny entry to sexually explicit material unless it comes within the narrow
category of pornography that Parliament has validly criminalized as obscene. With respect to lawful publications, the
interference sanctioned by Parliament was limited to the delay, cost and aggravation inherent in inspection,
classification and release procedures.”

Iacobucci (+2, dissenting in part)

Application of the Customs legislation has discriminated against gays and lesbians in a manner that violated s.15 of
the Charter. Customs legislation does not violate the Charter for the majority’s reasons.
Legislation itself violates the charter in this case: As conceded by the government, Custom’s legislation violates
s.2(b) of the Charter. The legislation has been administered in an unconstitutional manner, but it is the legislation
itself, and not only its application that is responsible for the constitutional violations. A legislation must provide the
sufficient safeguards to make sure that government action will not infringe constitutional rights. “The issue is not
solely whether the Customs legislation is capable of being applied constitutionally. Instead, the crucial consideration
is that the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive
materials.”

Multani v. Commission Scolaire Marguerite Bourgeoys [2006] (headnote)

Facts:
Schoolboard (CSMB) authorized Multani to wear a kirpan to school provided it was sealed under his clothing; Multani
agreed. Two months later, the CSMB changed its mind, and forbade the wearing of a real kirpan under art. 5 of the
school’s Code de vie, which had been approved by the school’s governing board pursuant to its authority under s. 76
of the Education Act. Multani’s father filed a motion to annul the CSMB’s order on the basis of ss. 2 and 15 of the
Charter (and ss. 3 and 10 of the Quebec Charter).
Issues: Can the administrative law standard of review analysis be incorporated into s.1 Charter analysis?
Holding: No, standard of review analysis not is not applicable – the Charter issue is central here.
Reasoning:
(Charron +4 Majority):
The fact that an issue relating to constitutional rights is raised in an administrative context does not mean that the
constitutional law standards must be dissolved into the administrative law standards. Section 1 analysis is more
structured than administrative law analysis – it is the proper framework for reviewing values protected by the Charter
(Slaight).
Judicial review may involve a constitutional law component and an administrative law component (Ross)
o Ross: first necessary to determine whether the board had erred in making a finding of discrimination on
the appropriate standard of review (in that case, reasonableness) and whether it had jurisdiction to make
that finding (ADMINISTRATIVE LAW)
o Then necessary to determine whether the order infringed freedom of expression and religion under the
Charter, as was alleged (CONSTITUTIONAL LAW)
“An administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order that
infringes the Charter” (Ross, Slaight). The administrative law standard of review is not applicable to the constitutional
component of judicial review.

In the case at bar, it is the compliance of the commissioners’ decision with the requirements of the Charter that is
central to the dispute, not the decision’s validity from the point of view of administrative law. There is no suggestion
that the council of commissioners did not have jurisdiction. There is also no question about the administrative and
constitutional validity of the rule against carrying weapons. It is only the constitutionality of the application of the
rule that is at issue, and only the constitutionality of the decision that is at issue in the appeal. Thus, the administrative
standard of review is not relevant, and the Court of Appeal erred in applying the reasonableness standard. Moreover,
 67
if this appeal had instead concerned the review of an administrative decision based on the application and
interpretation of the Charter, it would have been necessary to apply the correctness standard (Martin).
Any right infringement resulting from the actions of a decision maker acting pursuant to its enabling statute is also a
limit “prescribed by law” within the meaning of s. 1. Where the legislation confers a discretion and does not confer,
either expressly or by implication, the power to limit the rights and freedoms guaranteed by the Canadian Charter, the
decision should, if there is an infringement, be subjected to the test set out in s. 1 to ascertain whether it constitutes a
reasonable limit.
The Charter can apply in two ways (Eldridge):
1. Legislation violates a Charter right and is not saved by s. 1  legislation is of no force or effect.
2. Actions of a delegated decision-maker applying the legislation (not the legislation itself) violate the Charter
and are not saved by s. 1  legislation remains valid, but a remedy for the unconstitutional action can be
sought at s. 24(1).
This is the situation in this case

Freedom of religion analysis: the CSMB’s decision infringed Multani’s freedom of religion
Section 1 analysis: deleterious effects outweigh salutary effects

Deschamps and Abella (concurring):

The expression “law” should not include the decisions of administrative bodies (based on the French text of s.
1). The legality of such decisions must be determined on the basis of administrative law, but administrative law
can incorporate Charter values.
In our view, the case is more appropriately decided by recourse to an administrative law review than to a constitutional
law justification for two reasons:
1. The purpose of constitutional justification is to assess a norm of general application, such as a statute or
regulation. Can’t use an analysis developed for this purpose for the quite different task of assessing the
validity of a decision – even on a human rights question. Better to use an administrative law analysis for
reviewing decisions and orders made by administrative bodies.
2. Don’t want to blur the distinction between the principles of constitutional justification and the principles of
administrative law (which would impair the analytical tools specifically developed for both). An
administrative law analysis avoids this. Simply raising an argument based on human rights doesn’t make
administrative law inapplicable. Also, Martin does not stand for the principle that the that all decisions
contested under the Charter are subject to the correctness standard.

While administrative bodies have the power and the duty to take Charter values into account, it does not follow that
their decisions must be subjected to the justification process under s. 1. This doesn’t mean that administrative bodies
can disregard constitutional values – they can’t. But the alleged breach should be dealt with by an administrative law
standard of review. Administrative decision-makers shouldn’t have to incorporate a s. 1 analysis into their decision-
making process. Like the courts, they cannot be treated as parties with an interest in the dispute; thus their decisions
should not be subject to a justification process as if they were such a party. There is no risk that this will let through
unconstitutional decisions, given the demanding nature of the judicial review standard where an administrative body
fails to consider constitutional values.

Administrative law analysis

In this case, the reasonableness standard applies. No privative clause, BUT the school board has to balance rights to
freedom of religion and safety. School board has much more expertise than a court with regard to safety – this is very
fact-specific and varies from school to school.
But the decision is not reasonable. Argument about safety is invalid in light of the Superior Court’s precautions.
School board disregarded freedom of religion or the accommodation measure proposed by the father and the student.
 68
Review of Administrative Decision Involving Charter Rights Continued
The ascendancy of reasonableness in Charter review

Readings:
Doré v. Barreau de Québec [2012] (headnote)
Loyola High School v. Quebec (Attorney General) [2015]

Doré v. Barreau de Quebec [2012] (headnote)

Facts:
A judge criticized D, who had appeared for him on behalf of a client. He accused D of using bombastic rhetoric and
hyperbole, of engaging in idle quibbling, of being impudent and of doing nothing to help his client discharge his
burden. D then wrote a private letter to the judge calling him horrible names (loathsome, arrogant, coward, petty,
etc.). The Assistant Syndic of the Barreau du Québec filed a complaint against D based on that letter alleging that D
had violated art. 2.03 of the Code of ethics of advocates, which states that the conduct of advocates “must bear the
stamp of objectivity, moderation and dignity”.
The Disciplinary Council of the Barreau du Québec found that the letter was likely to offend, rude and insulting, and
that the judge's conduct could not be relied on as justification for it. The Council reprimanded D and suspended his
ability to practice law for 21 days.
On appeal to the Tribunal des professions D abandoned his constitutional challenge and argued that the sanction itself
violated his freedom of expression.
At Quebec Court of appeal, D challenged the decision to reprimand him as a violation of the Charter. CA applied
Oakes and found that D's letter had limited importance compared to the values underlying freedom of expression.
Issue: Whether the Council’s decision to reprimand D reflected a proportionate balancing of the lawyer’s right of free
expression with its statutory mandate under art. 2.03 of the Code of Ethics.
Holding: The Council’s decision was reasonable.
Reasoning:
To determine whether administrative decision-makers have exercised their statutory discretion in accordance with
Charter protections, the review should be in accordance with an administrative law approach, not a s. 1 Oakes
analysis.
The standard of review is reasonableness.
An administrative decision-maker has discretionary power under his statute and, by virtue of his expertise and
specialization, will be in the best position to consider the impact of the relevant Charter guarantee on the specific
facts. When applying Charter values in the exercise of statutory discretion, an administrative decision-maker must
balance Charter values with the statutory objectives by asking how the Charter value at issue will best be protected
in light of those objectives.
On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection
and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate
balancing of the Charter rights and statutory values at play.
The reasonableness analysis in the Charter context centers on proportionality, ensuring that the decision interferes
with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is
disproportionately impairing of the guarantee, it is unreasonable.
Lawyers have a right to speak their minds freely, and arguably have a duty to do so, but they are constrained by their
profession to do so with dignified restraint. The context of disciplinary hearings criticism will be measured against
the public's reasonable expectations of a lawyer's professionalism.
D's letter was outside those expectations. The Council's decision to reprimand him represented a proportional
balancing of D's expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity,
moderation and dignity”.
The decision is, as a result, a reasonable one.
The Court has two options for reviewing discretionary administrative decisions that implicate Charter values:
- Oakes framework  protects Charter rights at the risk of undermining a more robust conception of
administrative law.
- Embrace a richer conception of administrative law, under which discretion is exercised in light of
constitutional guarantees and the values they reflect.
 69
Administrative law approach to the balancing of Charter values is more consistent with the nature of discretionary
decision-making.
How does administrative decision maker apply Charter values in exercise of statutory discretion?
1. Balance statutory objectives and charter values. Determine statutory objectives. Ask how the charter value at
issue will best be protected in view of statutory objectives.
2. Balance severity of interference of the Charter protection with the statutory objectives. Judicial review for
reasonableness here aligns with Oakes  proportionality test will be satisfied if the measure falls within a
range of reasonable alternatives. Same test as reviewing administrative decision for reasonableness.
3. On judicial review the question becomes whether the decision reflects a proportionate balancing. Conceptual
harmony between reasonableness standard and Oakes framework.
o Both contemplate giving a margin of appreciation, i.e. deference to administrative and legislative
bodies in balancing Charter values against broader objectives.
Ratio: If in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value
with the statutory objectives, the decision will be found to be reasonable.
Class Notes:
Disciplinary hearing: lawyer disciplined for calling a judge bad names (coward, etc.). Bar is very low to cross the
threshold of civility. Individual was sanctioned by the Bareau for 21 days.
Principle: did the Bareau unjustifiably infringe the lawyer’s freedom of expression?
The SCC applied the Oakes test.
Standard of review: reasonableness in the S. 1 analysis of the Oakes test.

Loyola High School v. Quebec (Attorney General) [2015]

Facts:
Loyola High School is a private, English-speaking Catholic high school for boys. Most of the students at Loyola come
from Catholic families. As part of the mandatory core curriculum in schools across Quebec, the Minister of Education
has required a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different
world religions from a neutral and objective perspective. The orientation of the Program is strictly secular and cultural
and requires teachers to be objective and impartial.
Pursuant to s. 22 of the Regulation respecting the application of the Act respecting private education, the Minister can
grant an exemption from the ERC Program if the proposed alternative program is deemed to be “equivalent”. Loyola
wrote to the Minister to request an exemption from the Program, proposing an alternative course to be taught from
the perspective of Catholic beliefs and ethics. The Minister denied the request based on the fact that Loyola’s proposed
alternative program was to be taught from a Catholic perspective. It was not, as a result, deemed to be “equivalent”
to the ERC Program.
Judicial History: The Superior Court found that the Minister’s refusal of an exemption infringed Loyola’s right to
religious freedom and accordingly granted the application and ordered an exemption. On appeal, the Quebec Court
of Appeal concluded that the Minister’s decision was reasonable and did not result in any breach of religious freedom.
Holding: The Minister’s decision limited freedom of religion more than was necessary given the statutory objectives.
As a result, it did not reflect a proportionate balancing and should be set aside. The appeal is allowed and the matter
remitted to the Minister for reconsideration.
Reasoning:
(LeBel, Abella, Cromwell and Karakatsanis JJ.):
Doré sets out the applicable framework for reviewing discretionary administrative decisions that engage the
protections of the Charter. The discretionary decision-maker is required to proportionately balance the relevant
Charter protections to ensure that they are limited no more than necessary given the applicable statutory objectives.
The reasonableness of the Minister’s decision in this case therefore depends on whether it reflected a proportionate
balance between the objectives of promoting tolerance and respect for difference, and the religious freedom of the
members of the Loyola community.
How should we balance robust protection for the values underlying religious freedom with the values of a secular
state. A secular state cannot interfere with the beliefs or practices of a religious group unless they conflict with or
harm overriding public interests. Nor can a secular state support or prefer the practices of one group over another.
The Minister’s decision suggests that engagement with an individual’s own religion on his or her own terms can be
presumed to impair respect for others. This assumption led the Minister to a decision that does not, overall, strike a
proportionate balance between the Charter protections and statutory objectives at stake in this case.
 70
It is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the
Charter protections and statutory objectives in issue. Preventing a school like Loyola from teaching and discussing
Catholicism, the core of its identity, in any part of the program from its own perspective, does little to further the ERC
Program’s objectives while at the same time seriously interfering with the values underlying religious freedom. The
Minister’s decision is, as a result, unreasonable.
(McLachlin C.J. and Rothstein and Moldaver JJ., concurring):
Loyola, as a religious organization, is entitled to the constitutional protection of freedom of religion. The freedom of
religion protected by s. 2(a) of the Charter is not limited to religious belief, worship and the practice of religious
customs. Rather, it extends to conduct more readily characterized as the propagation of, rather than the practice of,
religion.
The government bears the burden of showing that the Minister’s insistence on a purely secular program of study to
qualify for an exemption limited Loyola’s religious freedom no more than reasonably necessary to achieve the ERC
Program’s goals. As the legislative and regulatory scheme demonstrates, the intention of the government was to allow
religious schools to teach the ERC Program without sacrificing their own religious perspectives.
The legislative and regulatory scheme is designed to be flexible and to permit private schools to deviate from the
generic ERC Program, so long as its objectives are met. The Minister’s definition of equivalency casts this intended
flexibility in the narrowest of terms, and limits deviation to a degree beyond that which is necessary to ensure the
objectives of the ERC Program are met. In short, the Minister’s decision was not minimally impairing. Therefore, it
cannot be justified under s. 1 of the Charter as a reasonable limit on Loyola’s s. 2(a) right to religious freedom.
This Court is empowered by s. 24(1) of the Charter to craft an appropriate remedy. It is neither necessary nor just to
send this matter back to the Minister for reconsideration, further delaying the relief Loyola has sought for nearly seven
years. Based on the application judge’s findings of fact, and considering the record and the submissions of the parties,
the only constitutional response to Loyola’s application for an exemption would be to grant it.
 71
Agency jurisdiction to apply the Charter
Determining whether an administrative tribunal has the authority to apply the Charter. If so, what kind of remedy can it
grant?

Readings:
Chapter 12, The Charter and Administrative Law; pp. 438-448
Nova Scotia (Workers’ Compensation Board) v. Martin [2003]

Class Notes:
2 types of cases: one deals with agency jurisdiction to consider how the Charter applies to the enabling statute (old
trilogy); the other deals with s. 24 – granting remedies.

S. 52 – old trilogy (Douglas College, Cuddy Chicks, Tetreault-Gadoury) – if an tribunal or board has power to determine
general questions of law, then it would have the power to apply the Charter to the statute. Big statute: what does it mean
to have power to determine general questions of law? Institutions, other than courts, can apply the Charter to the statutes.
This was revolutionary. Only Courts have inherent jurisdiction to strike down legislation that is inconsistent with the
Charter (art. 52).
Nothing giving administrative tribunals this power. If they don’t have that power, but they have been willing to say that
tribunals and agencies have the power to refuse to give effect to provisions that they deem to be inconsistent with the
Charter. Why do this at all? The reason relates to issues of access to justice. It’s supposed to make life easier for people
– get things done more efficiently. We should then give them the “first bite at the apple”.

Cooper  subject of intense criticism.

Majority: no jurisdiction in this case due to the bifurcation of the human rights institution (HRC, HRT)
Lamer: no jurisdiction in any case. Tribunals assessing constitutionality of their own statutes is controversial. We should
reconsider the old trilogy entirely. He took the orthodox position – we are subject to the rule of law (parliamentary
supremacy).
Minority (McLachlin and LHD): the Charter belongs to the people. The court should recognize the human rights
institution as a single institution, even though they are bifurcated (HRC, HRT). The HRC, interpreted broadly, should
be entitled to consider general questions of law.

Martin  Does the agency have authority to consider questions of law at all in relation to the statutory provision under
consideration? If so, then this gives rise to a presumption that the agency does have the power to apply the statute. This
presumption can be defeated by textual considerations (saying that the legislature didn’t actually intend to give the
agency the power to apply the Charter).

Conway  Section 24
The Courts have had a hard time carving out the boundaries of the jurisdiction to exercise this type of power.

Chapter 12, The Charter and Administrative Law; pp. 438-448

Agency Jurisdiction Over the Charter
Two main questions dealt with in this section: (1) whether administrative agencies have the authority to interpret and
apply their enabling legislation for the purpose of refusing to give effect to provisions found to violate the Charter;
(2) the authority of administrative agencies to grant remedies under s.24(1).

The Old Trilogy and “Jurisdiction over the Whole Matter”

Trilogy of cases (Douglas, Cuddy Chicks, Tetreault-Gadoury) were the first cases where the issue of whether an
administrative tribunal could apply the Charter. LaForest J. said that yes, and that s. 52(1) authorizes “to both apply
the Charter to their enabling legislation and refuse to give effect to provisions they determine to be inconsistent with
it.”
SCC did claim that it retained the authority to review agency determinations of Charter issues on a standard of
correctness. For an agency to be allowed to interpret such questions of law, it must be expressly mentioned in the
enacting legislation that they have the “general power to consider questions of law”. The majority in Douglas College
 72
was careful to say that agency jurisdiction over the Charter did not offend the separation of powers, but Lamer J. in
his concurring judgement in Cooper was fearful of this problem.
Cooper: case involving whether or not the Canadian HR Commission could apply s. 15 of the Charter. The court
decides that there was no explicit legislation enabling so no, therefore this case would have to go directly to the courts.
McLachlin J. dissented, claiming that all law and law-makers must conform to the Charter.

Vindication of the Dissent in Cooper?

Later cases seem to adopted the dissenters’ more generous understanding of what it means for a tribunal to have
authority to consider questions of law. The leading case is Martin. The Court in that case found that administrative
tribunals have jurisdiction, both explicit and implicit, to decide questions of law arising under a legislative provision
and to determine the constitutional validity of that provision (i.e. overruled Cooper).
What is new about Martin is that the new question on this issue became “whether the empowering legislation
implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law.” There wasn’t
going to be a distinction between general and limited questions of law, but the inquiry was restricted to the question
of whether the tribunal had the power to decide questions of law arising under the challenged provision.
If the legislation does not expressly grant jurisdiction to consider questions of law, the jurisdiction may still be present
implicitly and inferred from a series of factors (see 441), the key question whether the legislation intended that the
tribunal have jurisdiction to decide questions of law. The question of intent is a rebuttable presumption.
But tension remains, especially since legislatures can amend and enact law to withdraw jurisdiction over the Charter.
Some legislatures have actually removed this altogether (e.g. Admin Tribunals Act BC). Legislatures seem to claim
that it would be too expensive for people to hire the appropriate legal counsel in these situations.

Remedies under s.24(1)

In Conway, Abella J. followed Martin to determine a new approach as to whether a tribunal can or not grant specific
remedies under 24(1). There is a sense in which Conway is to s.24(1) what Martin is to 52(1): “the Court relaxes the
prior test for determining whether a board or tribunal has jurisdiction to grant the relevant remedy.” (443) In Conway,
Abella J. held that the board had jurisdiction to grant Charter remedies generally, but not one of absolute discharge.
The test is:
 Determine whether board is a court of competent jurisdiction within meaning of s.24(1) (i.e. can it generally
grant remedies?)
 If yes, then inquiry moves to whether the board has jurisdiction to grant the remedy sought (to be determined
by legislative intent, as discerned from the board’s statutory mandate, structure and function)
Essentially, although it was marketed as different, the approach remains the same in practice. Seems like people can
only request those remedies and orders that are available under the statute (and not the list available under the Charter)
 later cases should determine whether agency has jurisdiction to grant remedies under s.24(1) of the Charter.

Conclusion
We have an uncertain relationship with the Charter and administrative law. Doré seems to guide to a more stable
future. Scope of authority of administrative tribunals to apply the Charter is increasingly clear and arguably more
generous.

Nova Scotia (Workers’ Compensation Board) v. Martin [2003]

Facts:
L and M suffer from disability of chronic pain attributable to a work-related injury. M was eventually required to stop
working due to the pain. The compensation board gave him temporary disability benefits and rehabilitation services.
When these were discontinued he sought review of the decision, but the board denied his claim.
L was a bus driver that injured her back and right hand when she slipped and fell from the bumper of her bus. She
received temporary disability benefits. She tried to return to work, but it was not possible. She was denied permanent
partial disability award and vocational rehabilitation assistance. M and L both appeal to the Workers’ compensation
appeals tribunal on the grounds that portions of s.10B of the Workers Compensation Act infringes s.15(1) of the
Charter. Provisions exclude chronic pain from regular worker’s compensation system and provide instead a four-
week functional restoration program beyond which no further benefits are available.
 73
Judicial History: Appeals tribunal agreed to hear the case, the board challenged the jurisdiction of the board to hear
a Charter issue. Appeals tribunal affirmed its jurisdiction to apply the Charter, and allowed M’s appeal on the merits
that there had been a violation that failed s.1.
M’s case succeeded but not L. CA allowed the Board’s appeals finding that the appeal’s tribunal did not have
jurisdiction to consider the constitutional validity of the act, and that the chronic pain provisions did not demean any
human dignity of the claimants and therefore did not violate s.15(1) of the Charter.
Issues:
1. Does the compensation appeals tribunal have authority to refuse to apply on Charter grounds benefits
provisions of its enabling statute? [YES]
2. Does the compensation act infringe s.15.1 of the Charter? [YES]
3. If yes, is this saved by s.1? [NO]
Reasoning (Gonthier):
In sum: S.10B of Act and Regulations infringe s.15(1) of the Charter, and is not justified under s.1. General declaration
of invalidity is postponed for 6 months, and decision rendered by Appeals tribunal is reinstated.

The policy adopted by this Court in the trilogy

There are strong policy reasons as to why administrative tribunals should be allowed to make determinations and
refuse to apply a challenged provision found to violate the constitution
Why?
First: Constitution = supreme law of Canada which makes the question of constitutionality valid in every
legislative enactment. Technically, a provision is invalid if it is unconstitutional from the moment it is enacted,
and this is by operation of 52.1 of the constitution. Canadians should be entitled to their Charter rights without
having to pass through a parallel court system.
Second, Charter disputes arise through a thorough understanding of the objectives of the legislative scheme being
challenged as well as the constraints it faces and the consequences of the proposed constitutional remedies.
Third, their decisions will be reviewed on a correctness standard and constitutional remedies available to
administrative tribunals are limited and do not include general declarations of invalidity (i.e. a declaration of
invalidity will not be binding on future courts). “To allow an administrative tribunal to decide Charter issues does
not undermine the role of the courts as final arbiters of constitutionality in Canada.”

Applicable Law
Since administrative tribunals are creatures of Parliament and the legislatures, their jurisdiction must in every case
“be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the
remedy sought”. Appeals tribunal did have the jurisdiction to consider the constitutionality of the challenged
provisions of the Act and Regulations.
“Administrative tribunals which have jurisdiction, explicit or implicit, to decide questions of law arising under a
legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that
provision.” (i.e. if given the permission, admin tribunals can decide on the constitutionality of a law).
So the question is: “whether the empowering legislation implicitly or explicitly grants to the tribunal the
jurisdiction to interpret or decide any question of law.” This will bring in an automatic presumption, unless
legislator actively sought to remove power (not high threshold). The question really is more at whether or not
the power was granted rather than at how broad the granting of the power must be.
There is no need to draw a distinction between general and limited questions of law. If it is explicit it must be found
in the statute; if it is implicit it must be discerned by looking at the statute as a whole.

1) Relevant factors: statutory mandate of tribunal, deciding whether deciding questions of law is necessary to fulfill
effectively the mandate, interaction of the tribunal in question with other elements of the admin system (i.e. tribunal
adjudicative in nature, practical considerations such as capacity to consider questions of law).
2) Possible rebuttal of presumption: A person trying to prove that the legislature never intended to grant power of
reviewing constitutional questions will be able to rebut the presumption that an adjudicator can review constitutional
questions by pointing at the provision in the statue, or showing how the scheme really excludes these types of
provisions. It must rise from the statute itself rather than external considerations. Cooper is overruled.
 74
Here: Appeals tribunal could properly consider and decide the Charter issue (i.e. the constitutional validity of their
own provision) in this case. Legislature conferred on Tribunal expressly the authority to decide questions of law (see
s.252(1) of the Act) and this is confirmed by other provisions in the Act.
Also, the provisions infringed s.15(1) of the Charter (CA erred).

Not justified under s.1

Substantial and pressing: (1) Maintaining the financial viability of the Accident fund is not pressing and substantial:
budget considerations do not justify a Charter right violation, even if relevant in determining degree of deference to
be given to government choices based on a non-financial objective. (2) Developing a consistent legislative response
to chronic pain claims cannot stand on its own: mere admin expedience cannot override charter right. (3) The only
substantial and pressing objective is to avoid fraudulent claims based on chronic pain (i.e. was the pain actually caused
by a work related incidents). Rational connection exists but not minimally impairing. Challenged provision makes no
attempt to determine who is genuinely suffering and needs compensation and who might be abusing the system. They
are ignoring the real needs of some of the workers. (4) Implement early medical intervention and return to work as
the optimal treatment for chronic pain. It is possible to assume that it is substantial and pressing, and rational
connection. But no minimal impairment: “No evidence indicates that an automatic cut-off benefits regardless of
individual needs is necessary to achieve that goal.” So in all not proportional.
In all: Provisions are inconsistent with the Constitution and are of no force or effect by operation of s.52(1) of
Constitution 1982 (they are however allowed to remain in effect until a solution is thought of).
 75
Administrative law and the National Security State
Readings:
Charkaoui v. Canada (Citizenship and Immigration) [2007](headnote)
Canada (Citizenship and Immigration) v. Harkat [2014]

“Passenger Protect Program” (no-fly list): set up on a very thin read of legality – emergency power delegated to the
ministry of transport. The federal government set up this program that existed as it exists today, just with more legislation
to support it. Bill C-52
- Procedure? Supposed to be given written direction. The first time you are notified that you are even on the list
is when you arrive at the airport. There are ways to seek reconsideration through the office of reconsideration,
in an application to the Minister. There are a lot of false positives. There is a good faith effort to avoid these
false positives. Interests are not impaired until you are aware they are on the list. Notice is only required if the
practical interests of the individual is engaged. You need a judicial warrant for surveillance, so you should need
one for putting the person on the no-fly list if its connected to that surveillance.
- Charter or administrative law claim? Duty to disclose, (which includes the right to give answer), duty to give
reasonable notice, duty to give reasons. On Charter grounds, you can claim liberty grounds under section 7, but
the Crown can reply with the argument that public safety allows them to infringe on those liberties for reasonable
reasons (terrorism).

National Security and Rule of Law

Charkaoui v. Canada (Citizenship and Immigration) [2007] (headnote)

Facts:
Charkaoui, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate issued
by the Solicitor General of Canada and the Minister of Immigration. The evidence upon which the certificate was
issued is secret, disclosed neither to Charkaoui nor his lawyers.
Held:
McLachlin CJ., writing for a unanimous court, holds that sections 33 and 77 to 85 of the IRPA unreasonably violates
sections 7, 9 and 10 of the Charter. On the section 1 analysis for justification of the violation the Court held that the
certificate process was not minimally impairing. The Court cited a clearance system used elsewhere in the world that
would designate certain lawyers to view the evidence on behalf of the accused.
Reasoning:
Deprivation of liberty – thicker understanding of procedural fairness. Written submission aren’t enough – must be an
oral hearing that must comply with certain criteria:
1. Independent and impartial judge
2. Individual subject to hearing has to have opportunity to know and meet case they are facing
3. Judge must also have opportunity to decide case on basis of all available evidence and law
In immigration context where there are national security concerns, the government has legitimate interest in not
revealing the sources of the info. Currently, there will be a hearing, but if revealing some of evidence will compromise
national security and judge agrees, then judge is requires to call ex parte, in camera hearing (names person nor lawyer
is allowed to attend).
SCC – although there was a judge involved, the procedural requirements of principles of fundamental justice were
not met. With only judge to ask questions of Crown there is no way to ensure that evidence relied upon had be properly
tested. No way to ensure that all legal arguments would be available to present to judge to consider. Needs to know
case to meet and have opportunity to respond.
McLachlin – principle has been infringed but also effectively gutted – how can you meet the case against you if you
can’t know what it is. Only conclusions drawn from evidence are available to named person – not the evidence itself.
SCC – more has to be done to comply with principles of fundamental justice. Pointed to way security certificates used
to work – where evidence was vetted by org. overseeing CSIS. Also pointed to UK – when crown asks for ex parte,
in camera hearing is necessary and judge agrees, a special advocate will be appointed to represent named person.

Decision: because that kind of arrangement not available in Can – principles of fundamental justice had been
compromised. Court goes through s. 1 analysis – there they said infringement of s.7 and it is not minimally impaired.
 76
Legislature could have chosen less drastic measures that infringe less the s. 7 interests by complying more with
principles of fundamental justice (although perfect compliance is not possible). To show what more can be done
showed example of UK.

Comments:
Special advocate system has raised a number of questions.
Main objection – in the UK, when special advocate is named and confidential info is revealed, the advocate has to
swear oath that they won’t communicate info to named person or that they will even communicate at all with named
person (has to file a request to communicate – but even if approved, secret info can’t be revealed).

This judgement clarifies prior confusion:

Could mean that in future s. 1 could make a difference. In determining content of fundamental justice at s. 7 level it
was unclear if we had to weigh interests of society at large.
in Charkaoui – reiterated Malmo – at s. 7 level – no balancing of individual against society. Just see if principles of
fundamental justice have been satisfied. If not, can still be saved but saving operation has to be done in s. 1.
In a situation where advocate system is challenged – court might use 4th step of s. 1 – deleterious effects stage. But
could go either way – national security is very serious.

Canada (Citizenship and Immigration) v. Harkat [2014]

Facts:
H is alleged to have come to Canada for the purpose of engaging in terrorism. In 2002, a security certificate was
issued against H under the scheme then contained in the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(“IRPA”). The certificate declared H inadmissible to Canada on national security grounds. After a successful
constitutional challenge of the then existing IRPA security certificate scheme and subsequent amendments to the
IRPA, a second security certificate was issued against H and referred to the Federal Court for a determination as to
its reasonableness. During the proceedings, the special advocates appointed to protect the interests of H in the closed
hearings sought to obtain disclosure of the identity of human sources who provided information regarding H to the
Canadian Security Intelligence Service (“CSIS”) as well as permission to interview and to cross-examine them. The
designated judge rejected their request, finding that the common law police informer privilege should be extended to
cover CSIS human sources. The designated judge also rejected their request to compel the ministers to obtain updated
information from foreign intelligence agencies on several alleged terrorists with whom H was claimed to have
associated. In addition, H’s request to exclude from the evidence summaries of intercepted conversations on the
ground that the original recordings and notes of these conversations were destroyed pursuant to CSIS policy OPS-
217 was refused by the designated judge.
The designated judge found the security certificate scheme under the amended IRPA to be constitutional, and
concluded that the certificate declaring H inadmissible to Canada was reasonable. On appeal, the Federal Court of
Appeal upheld the constitutionality of the scheme but found that the identity of CSIS human sources is not protected
by privilege. It also excluded from the evidence the summaries of intercepted conversations to which H had not been
privy, and remitted the matter to the designated judge for redetermination on the basis of what remained of the record
after the exclusion of the summaries.
Held: The appeal should be allowed in part. The cross-appeal should be dismissed. The IRPA scheme is constitutional.
CSIS human sources are not protected by a class privilege. The designated judge’s conclusion that the security
certificate was reasonable is reinstated.
Reasoning:
(McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ.):
Constitutionality of IRPA Scheme
The impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right to
know and meet the case against him, or the right to have a decision made on the facts and the law. The alleged defects
of the IRPA scheme must be assessed in light of the scheme’s overall design and of the two central principles that
guide the scheme: (1) the designated judge is vested with broad discretion and must ensure not only that the record
supports the reasonableness of the ministers’ finding of inadmissibility but also that the overall process is fair; and
(2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal
participation by the named person in those hearings. However, the scheme remains an imperfect substitute for full
disclosure in an open court, and the designated judge has an ongoing responsibility to assess the overall fairness of
the process and to grant remedies under s. 24(1) of the Charter where appropriate.
 77
The IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant, since the
designated judge has a statutory duty to ensure that the named person is reasonably informed of the case against him
or her throughout the proceedings. However, the IRPA scheme’s requirement that the named person be “reasonably
informed” of the case should be read as a recognition that the named person must receive an incompressible minimum
amount of disclosure.
Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a
person can be withheld from the named person. Systematic over-claiming would infringe the named person’s right
to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter.

Privilege for CSIS Human Sources

CSIS human sources are not protected by a class privilege. First, police informer privilege does not attach to CSIS
human sources. The differences between traditional policing and modern intelligence gathering preclude
automatically applying traditional police informer privilege to CSIS human sources. Second, this Court should not
create a new privilege for CSIS human sources. If Parliament deems it desirable that CSIS human sources’ identities
and related information be privileged, it can enact appropriate protections.
The discretion of the designated judge to allow the special advocates to interview and cross-examine human sources
in a closed hearing should be exercised as a last resort. A generalized practice of calling CSIS human sources before
a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS’s ability to
recruit new sources. In this case, there is no need to authorize the exceptional measure of interviewing and cross-
examining human sources.

Duties of Candour and Utmost Good Faith and Fairness of Process

The duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings. They
require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named
person. What constitutes reasonable efforts will turn on the facts of each case; however, the ministers have no general
obligation to provide disclosure of evidence or information that is beyond their control. In this case, reasonable efforts
were made by the ministers and they did not breach those duties. The proceedings against H were fair and a stay of
proceedings should not be granted.

Reasonableness of Certificate
The designated judge committed no reviewable errors in finding that the ministers’ decision to declare H inadmissible
to Canada was reasonable. The designated judge’s weighing of the factual evidence on the record is entitled to
appellate deference and should only be interfered with if he committed a palpable and overriding error. There is no
palpable and overriding error in his weighing of the evidence or in his assessment of H’s credibility, both of which in
his view provided reasonable grounds to establish H’s inadmissibility.

(Per Abella and Cromwell JJ. (dissenting in part on the appeal)):

Individuals who come forward with information about a potential terrorist threat, often risk their lives in doing so if
their identity is disclosed. Offering only the possibility of anonymity if a court subsequently agrees to protect an
informer’s identity, requires informers to choose between risk of personal harm if their identity is not protected, or
risk of harm to the public if the information is not disclosed.
CSIS informants who provide national security information based on a promise of confidentiality are entitled to the
assurance that their confidentiality will be protected. This can only be guaranteed by a class privilege, as is done in
criminal law cases. A case-by-case approach results in an informant not knowing whether the promise will be kept
until a judge engages in a retrospective assessment. This is hardly conducive to encouraging informants to risk their
lives by coming forward to offer highly sensitive information in terrorism cases.
Given the intensity of the interests at stake in the security certificate context, it would be appropriate to recognize a
limited exception specifically crafted for the security certificate process which would address only disclosure to the
special advocate, not to the subject of the proceedings. Requiring a human source to testify will have a profound
chilling effect on the willingness of other sources to come forward, and will undoubtedly damage the relationship
between CSIS and the source compelled to testify.
We would therefore allow the ministers’ appeal on the informant privilege issue and restore the designated judge’s
disposition of this issue.