Administrative Law Outline – 2003

1. PROCEDURAL FAIRNESS.......................................................................................................................................4
1.1. DEVELOPMENT OF PROCEDURAL FAIRNESS.......................................................................................................4
Cooper v. Board of Works for Wandsworth District (1863), 143 ER 414 (Eng. CP).................................................4
Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [ 1979] 1 SCR 311..........................................4
Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653............................................................................4
1.2. DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE...................................................................................5
1.2.1. Cabinet and Cabinet Appeals.....................................................................................................................5
Canada (AG) v. Inuit Tapirisat of Canada [1980] SCR 735......................................................................................6
1.2.2. By-laws and Rule-making...........................................................................................................................6
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011................................................6
1.2.3. Policy Making.............................................................................................................................................7
Bezaire v. Windsor RCSSB (1992), 9 OR (3d) 737 (Div. Ct.)....................................................................................7
Canadian Association of Regulated Importers v. Canada (AG) [1994] 3 FC 247 (CA)............................................7
1.2.4. Decisions Affecting Rights, Privileges, or Interests..................................................................................8
Re Webb and Ontario Housing Corp. (1978), 93 DLR (3d) 187 (OCA)....................................................................8
Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin. LR 250 (Alta. QB).8
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.......................................................9
1.2.5. Non-final (Investigative) Decisions..........................................................................................................10
Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304 (Ont. Div. Ct.); aff’d (1981), 119 DLR (3d) 101
(OCA)........................................................................................................................................................................ 10
Dairy Producers’ Co-operative Ltd. v. Saskatchewan (HRC) [1994] 4 WWR 90 (Sask. QB).................................11
Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181......................................................11
Summary of Non-Final Decisions............................................................................................................................12
1.3. PROCEDURAL FAIRNESS ARISING FROM LEGITIMATE EXPECTATIONS............................................................12
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.......................................................12
Reference re Canada Assistance Plan [1991] 2 SCR 525........................................................................................12
Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d) 263 (Nfld. SCTD);
rev’d at Nfld. CA...................................................................................................................................................... 13
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] 2 SCR 281...............................13
1.4. PROCEDURAL FAIRNESS AND THE CANADIAN BILL OF RIGHTS.......................................................................14
NAPO v. Canada (AG) (1990), 60 DLR (4th) 712 (FCA)........................................................................................14
Authorson v. Canada (AG) 2003 SCC 39.................................................................................................................15
1.5. PROCEDURAL FAIRNESS AND THE CHARTER....................................................................................................15
Paul v. BC (Forest Appeals Commission) 2003 SCC 55..........................................................................................15
NS (Worker’s Comp. Bd.) v. Martin 2003 SCC 54...................................................................................................15
Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177..................................................16
Wilson v. BC (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA).................................................17
Blencoe v. BC (HRC), [2000] 2 SCR 307.................................................................................................................17
2. CHOICE OF PROCEDURES................................................................................................................................19
Goldberg v. Kelly 397 US 254 (1970) (USSC)..........................................................................................................19
Mathews v. Eldridge 424 US 319 (1976) (USSC).....................................................................................................19
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3......................................................20
Statutory Powers Procedures Act (Ont.)...................................................................................................................21
3. SPECIFIC CONTENT ISSUES.............................................................................................................................22
3.1. PRE-HEARING ISSUES........................................................................................................................................22
3.1.1. Notice.........................................................................................................................................................22
Re Hardy and Minister of Education (1985), 22 DLR (4th) 394 (BCSC)...............................................................22
Re Central Ontario Coalition and Ontario Hydro (1984), 10 DLR (4th) 341 (Ont. Div. Ct.).................................22
R. v. Ontario Racing Commission, ex parte Taylor (1970), 15 DLR (3d) 430 (Ont. CA).......................................22
Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) [1997] 3
SCR 440....................................................................................................................................................................22
3.1.2. Discovery...................................................................................................................................................23
Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 SCR 724..................................23
3.1.2.1. Documents in Possession of 3rd Party................................................................................................................23

1
 Ontario (HRC) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 115 DLR (4th) 279
(Ont. Div. Ct.)...........................................................................................................................................................23
3.1.2.2. Documents in Possession of Decision-Maker (Tribunal).................................................................................24
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA).............................24
3.1.3. Delay..........................................................................................................................................................25
Kodellas v. Saskatchewan (HRC) (1989), 60 DLR (4th) 143 (Sask. CA)................................................................25
3.2. ORAL HEARINGS................................................................................................................................................25
Masters v. Ontario (1994), 18 OR (3d) 551 (Div. Ct.)..............................................................................................26
Khan v. University of Ottawa (1997), 35 OR (3d) 535 (CA)....................................................................................26
3.3. DISCLOSURE AND OFFICIAL NOTICE .................................................................................................................27
3.3.1. Access to Agency Information..................................................................................................................27
Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179 (BCCA)...............................................27
3.3.2. Identity of Sources of Information...........................................................................................................28
Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin. LR 261 (FCA)......28
Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304 (FC TD)...................................................28
3.3.3. Commercially Sensitive Information.......................................................................................................29
Magnasonic Canada v. Anti-Dumping Tribunal, [1972] FC 1239 (CA).................................................................29
3.3.4. Staff Studies..............................................................................................................................................29
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA).............................29
Toshiba Corporation v. Anti-Dumping Tribunal (1984), 8 Admin. LR 173 (FCA)................................................30
Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984), 8 Admin. LR 177 (FCA).................30
Re League for Human Rights of B’Nai Brith and Commission of Inquiry on War Criminals (1986), 28 DLR (4th)
264 (FCA).................................................................................................................................................................30
3.3.5. Official Notice...........................................................................................................................................30
SPPA (s. 16)..............................................................................................................................................................30
Township of Innisfil v. Township of Vespra.............................................................................................................30
4. INSTITUTIONAL DECISIONS............................................................................................................................30
4.1. DECIDING WITHOUT HEARING..........................................................................................................................30
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282
................................................................................................................................................................................... 31
Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 SCR 952...........................................................32
Commentary by Mullan on Consolidated-Bathurst and Tremblay........................................................................33
Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221.................................................................33
Payne v. Ontario (HRC) (2000), 192 DLR (4th) 315 (Ont. CA)..............................................................................34
5. BIAS AND LACK OF INDEPENDENCE............................................................................................................35
5.1. REASONABLE APPREHENSION OF BIAS.............................................................................................................35
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.....................................................35
5.1.1 Pecuniary Bias...........................................................................................................................................36
Energy Probe v. Canada (Atomic Energy Control Board) (1984), 15 DLR (4th) 48 FCA......................................36
5.1.2. Acting Outside Statutory Authority...........................................................................................................36
Brosseau v. Alberta (Securities Commission), [1989] 1 SCR 301............................................................................36
E.A. Manning Ltd. v. Ontario Securities Commission (1995), 125 DLR (4th) 305 (Ont. CA)...............................37
5.1.3. Institutional Bias Due to Internal Operational Choices – Court Intervention on C/L basis.................38
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919.................................................38
5.1.4. Institutional Bias Due to Statute – Court Intervention on a Constitutional Basis................................38
MacBain v. Canada (Human Rights Commission) (1985), 22 DLR (4th) 119 (FCA)............................................38
5.1.5. Attitudinal Bias.........................................................................................................................................39
Paine v. University of Toronto, (1981), 131 DLR (3d) 325 (Ont. CA); rev’g. (1980), 115 DLR (3d) 461 (Ont. Div.
Ct.)............................................................................................................................................................................. 39
Great Atlantic & Pacific Co. of Canada v. Ontario (HRC) (1993), 12 Admin LR (2d) 267 (Ont. Div. Ct.)..........40
Large v. Stratford (City) (1992), 9 OR (3d) 104 (Div. Ct.).......................................................................................40
5.1.6. Variations in Standards............................................................................................................................41
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170.......................................................41
Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213..................................................41
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623
................................................................................................................................................................................... 42
5.2. LACK OF INDEPENDENCE/IMPARTIALITY..........................................................................................................43
Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 FC 552 (CA)............................................43

2
 Alex Couture Inc. v. Canada (AG) (1991), 83 DLR (4th) 577 (Que. CA)...............................................................43
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3.............................................................................44
2747-3174 Quebec Inc. v. Quebec (Regi des permis d’alcool), [1996] 3 SCR 919...................................................45
6. STANDARD OF REVIEW.....................................................................................................................................46
Crevier v. Quebec (AG), [1981] 2 SCR 220..............................................................................................................46
CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227.........................................................46
Union des employes de service, Local 298 v. Bibeault, [1988] 2 SCR 1048.............................................................47
6.1. DEVIATIONS FROM THE STANDARD OF REVIEW...............................................................................................48
Canada (AG) v. Mossop, [1993] 1 SCR 554.............................................................................................................48
United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 SCR
316............................................................................................................................................................................. 49
6.2. EXTENDING DEFERENCE – STATUTORY APPEALS.............................................................................................50
Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557...........................................................50
Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748..........................................50
Law Society of New Brunswick v. Ryan, 2003 SCC 20............................................................................................51
6.3. REINFORCING AND REARTICULATING THE MODERN STANDARD OF REVIEW..................................................52
CUPE, Local 301 v. Montreal (City), [1997] 1 SCR 793..........................................................................................52
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982......................................53
6.4. FOCUSING ON THE NATURE OF THE PROBLEM.................................................................................................54
Trinity Western University v. BC College of Teachers, [2001] 1 SCR 772..............................................................54
Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 SCR 100...................................55
7. REVIEW OF DISCRETION..................................................................................................................................56
7.1. APPLYING THE FUNCTIONAL AND PRAGMATIC APPROACH..............................................................................56
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.....................................................56
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3......................................................57
7.2. WRONGFUL CONSIDERATIONS...........................................................................................................................58
CUPE v. Ontario (Ministry of Labour) 2003 SCC 29..............................................................................................58
Re Sheehan and Criminal Injuries Compensation Board, (1975), 52 DLR (3d) 728 (Ont. CA)............................58
7.3. WRONGFUL PURPOSE.........................................................................................................................................59
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231.......................................................................59
7.4. CONSTITUTIONAL CONSIDERATIONS..................................................................................................................60
Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038...............................................................................60
7.5. UNWRITTEN CONSTITUTIONAL CONSIDERATIONS.............................................................................................61
Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d) 505 (CA).............61

3
1. Procedural Fairness
1.1. Development of Procedural Fairness
Cooper v. Board of Works for Wandsworth District (1863), 143 ER 414 (Eng. CP) (at 104)
f.: Metropolis Local Management Act 1855, s. 76 required anyone intending to build a house to
give 7 days notice prior to construction (to allow for ∆ to give advice on drains). ∏ said he gave
notice and 5 days later began construction. ∆, who said they received no notice, tore down
building without notice to  (as they were empowered to do so by the Act if no notice was
received). ∏ sued for damages and trespass.

i.: Was ∏ entitled to a notice and the right to be heard before the board tore down the house?

r.: “No man is to be deprived of his property without his having an opportunity to be heard,”
regardless of whether there is a judicial proceeding or not.

a.: For ∏. The right to be heard is justified when (1) statutorily empowered party’s actions have
serious consequences (like destruction of property); (2) hearings allow for better decisions; (3)
benefits of a hearing outweigh the costs.

Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [ 1979] 1 SCR 311 (at 107)
f.: s. 27(b) of the Regulations made under the Police Act allow “a board or council,…to dispense
with the service of any constable within eighteen months of his becoming a constable.” ∏ was
constable for 15 months and was discharged by the board without being heard (making
submissions). COA said that since statute allowed hearing for full constables, but was silent on a
hearing for probationary constables, this means that legislature intended to exclude a hearing
option for probationary constables. ∏ seeks review.

i.: Was the ∏ entitled to be heard by the board, notwithstanding s. 27(b) of the Regulations made
under the Police Act?

r.: Laskin CJC: Police constables on probation are more like officers requiring cause for
dismissal (but not totally), therefore are entitled to lesser protection under Police Act.
Complainants should be given reasons for dismissal and a chance to respond (can be oral or
written). No need to distinguish between judicial, quasi-judicial, and administrative functions.

a.: 5-4 for ∏. Martland J. (dissent): ∏ status was a constable under probation (office holder at
pleasure, traditional C/L says no hearing needed). ∆ not under any legal obligation to give
reasons to ∏ for termination before 18 months service was complete.

Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653 (at 116)
f.: ∏ (director of education) was dismissed by ∆ after refusing to accept K renewal for a shorter
term than original. ∏ brought action for wrongful dismissal (seeking damages) – refused. ∏
argued he was entitled to procedural fairness before dismissal. Upheld in lower courts. ∆
appealed.

4
i.: How do you distinguish between statutory employees and office holders at pleasure? Is
procedural fairness due an office-holder at pleasure?

r.: When an employee is an office holder and the employer (administrative body) is empowered
by statute to make a final decision that has a large impact on the employee (e.g. dismissal), the
employer has a duty of fairness in making that decision. This includes the provision of reasons
for the decision and the right of the employee to be heard.

a.: 4-3 for ∏. Majority – procedural fairness is due an office-holder at pleasure but such
requirements were met by ∆. Dissent – no duty of fairness is due an office-holder at pleasure. ∆
appeal allowed.
L’Heureux-Dube J.: consider three factors to determine if a duty of fairness exists.
(1) nature of decision made by administrative body – do not distinguish between judicial, quasi-
judicial and admin decisions, since duty to act fairly and judiciously rest on same principle of
natural justice. Not all admin bodies are under such a duty (e.g. decisions of legislative and
general nature). Preliminary decision will not generally trigger duty of fairness, but final decision
may
(2) relationship between that body and the individual. Master and servant – no duty to act fairly;
office held at pleasure – no duty to act fairly; office requiring cause for dismissal – duty to act
fairly
(3) effect of decision on individual’s rights. Right to fairness only if decision is significant and
has important impact on individual. The ability to retain one’s employment is significant.
NOTE: must check relevant Act or employment K to see if duty of fairness expressly excluded.
Sopinka J. (dissent): Generally, the holder of an office at pleasure is not entitled to a duty of
fairness in relation to dismissal. An exception can be made if the officer can identify in statute,
regulations or K, provisions which (explicitly or implicitly) confer a right to be heard.
L’Heureux-Dube turns exception into rule, by determining if a duty exists first (nature of
decision, relationship, effect of decision) and then turning to statute, regulations, K to see if
employer has brought himself into exception to duty of fairness

A f t e r N ic h o ls o n , K n ig h t

J u d ic ia l
P r o c e d u r a l F a ir n e s s
P r o t e c t io n
Q u a s i- J u d ic ia l

A d m in is t r a t iv e
Le g is la t iv e / G e n e ra l d e c is io n s N o P r o t e c t io n
M in is t e ria l/ B r o a d P o lic y d e c is io n s

5
1.2. Decisions of a Legislative and a General Nature
1.2.1. Cabinet and Cabinet Appeals
Canada (AG) v. Inuit Tapirisat of Canada [1980] SCR 735 (at 132)
f.: CRTC has power to regulate rates of utilities, including Bell. s. 64(1) of the National
Transportation Act empowers GIC (Cabinet), upon petition or its own motion, to rescind any
order, decision, rule or regulation of the CRTC. s. 64(2) allows for an appeal from the CRTC to
the FCA on a question of law or jurisdiction once given leave by the Court and “upon notice to
the parties and the Commission, and upon hearing such of them as appear and desire to be heard.”
Bell made application for rate increase. ∆ intervened, asked CRTC to force Bell to improve
service in North as a condition of rate increase. CRTC denied. ∆ appealed to Cabinet and make
submission. CRTC and Bell made submissions to Cabinet through Department of
Communications. ∆ not given this material except submission by Bell. Minister of
Communications recommended appeal be dismissed, which was accepted. ∆ made motion to
FCTD for declaration that a hearing should have been given, or that, if hearing was given that it
did not comply with principles of natural justice. ∏ argued ∆ had no reasonable cause of action.
Application granted by FCTD, ∆ successfully appealed at FCA. ∏ appealed to SCC.

i.: Is there a duty to observe natural justice, or at least a lesser duty of fairness, on the GIC
(Cabinet) in dealing with parties upon their submission of a petition under s. 64(1) of the
National Transportation Act?

r.: Must ask what is appropriate to require of a particular authority in way of procedure, given the
nature of the authority, the nature of its power and the consequences of the exercise of power to
the individuals affected, and nature of relationship between authority and individuals affected.
There is no implied duty of fairness (requirement of a hearing) for GIC making a purely
“legislative” decision.

a.: Estey J.: For the ∏. GIC making a polycentric decision (balance of numerous interests), and
is given broad discretion (GIC may act “at any time” and “in his discretion” and may act “on his
own motion). This a purely legislative decision, therefore no duty of fairness. Fairness applies to
tribunal or agency discharging a function with reference to something akin to a dispute or where
the agency is an “investigating body”. It does not apply in cases where the executive is assigned a
function performed in the past by the legislature itself and where subject matter is not an
individual concern or a right unique to the petitioner.

1.2.2. By-laws and Rule-making

Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (at 140)
f.: ∏ and ∆ quarreled over obligation to install services in a subdivision owned by ∏. Without
giving notice to ∏, ∆ passed a bylaw under Planning Act which did not allow lots in subdivision
to be conveyed unless a new plan was registered or consents were obtained from committee of
adjustments – this would allow ∆ to impose conditions. ∏ applied for review to quash bylaw and
succeeded at review and on appeal. ∆ appealed to SCC.

i.: Did ∆, in passing by-laws, exercise a legislative function? If so, would this subsequently
remove the C/L right of ∏ to be heard? If C/L right does apply, did ∆ satisfy its onus?

6
r.: A legislative action in form (a bylaw), but dispute resolution affecting private property rights
in function, will draw a duty of procedural fairness.

a.: For ∏ (but not award given for ∏ misconduct). Estey J.: Action by ∆ was quasi-judicial,
not legislative, since it directly affected the property rights of the ∏ and therefore duty to give
notice and right to be heard apply.
Dickson J. (dissent on issue of misconduct): It is not necessary to classify ∆ action as
“legislative.” Must look at nature of function and facts of each case. Once it is clear that rights
are affected, must flexibly apply procedural fairness requirements. A ministerial decision, on
broad grounds of policy, affords little protection, while a function that approaches judicial end of
spectrum will have greater procedural fairness protection.

1.2.3. Policy Making

Bezaire v. Windsor RCSSB (1992), 9 OR (3d) 737 (Div. Ct.) (at 145)
f.: ∆ in financial crisis, decided to close 9 schools, but did not give affected students/parents an
opportunity to give input. Minister, under statutory authority, issued procedure policy for board
closures of schools and ∆ produced its own policy. Neither policy was followed.

i.: Is there an obligation on a school board to act fairly in exercising its administrative power to
close a school?

r.: Given Minister’s procedure policy and ∆ own policy for closing schools as being the “business
of the community” there is a required duty of procedural fairness when this school board
exercises its power to close a school. This duty requires community consultations.

a.: For ∏. The Court: ∆ decision subject to judicial review under Ontario Judicial Review
Procedure Act. Decision to reallocate students (which does not require procedural fairness – Ont.
CA in Vanderkloet) is distinguishable from closing down a school; in such a case the policies
established by the Board from guidelines issued by the Minister must be followed. Guidelines in
this case, read as a whole, suggest duty of fairness. Consultation by ∆ after decision did not meet
burden. Financial crisis of ∆ does not abrogate duty of fairness.

Canadian Association of Regulated Importers v. Canada (AG) [1994] 3 FC 247 (CA) (at 147)
f.: ∏ challenged Ministerial decision to change quota distribution system for importation of
hatching eggs and chicks, stating they had not been consulted. FCTD judge agreed. ∆ appealed.

i.: Are ∏ entitled to fairness when a Minister decides to change quota system for the importation
of hatching eggs and chicks?

r.: Rules of natural justice do not apply to legislative decisions concerning quota policy, but may
apply to individual decision respecting grants of quotas (which affect pecuniary interest), unless
legislation suggests Minister must follow rules of fairness.

a.: For ∆. Linden JA.: Generally, rules of natural justice do not apply to legislative or policy
decisions. Natural justice does not apply to decisions on quota policy, but may apply to

7
individual decisions respecting grants of quotas. There is nothing in the legislation that suggests
that Minister must follow rules of fairness.
Reed J. (dissent): Traditionally a decision is deemed “legislative” if it sets out general rules
which apply to large numbers of persons and not one specific individual. Here, the Minister was
exercising a statutory power that empowered him to make a general decision, but which
adversely effects a small proportion of the populace. One does not require a “right” to bring
application of judicial review. Only require an “interest” or “legitimate expectation”. Here
∏established an sufficient interest (facing considerable economic loss) justifying fairness;
general notice was required (like newspaper ad) and an opportunity to submit representations.

1.2.4. Decisions Affecting Rights, Privileges, or Interests

Re Webb and Ontario Housing Corp. (1978), 93 DLR (3d) 187 (OCA) (at 153)
f.: OHC owned high-rise apartments in downtown TO that were rented at less than market value
to low income persons. Managing company recommended termination of Webb’s lease in 1973
(who had lived there for 3 years) because of problems caused by her children. OHC officials and
board agreed and an application for termination was brought under Landlord Tenant Act (LTA).
Webb applied for review of decision, and LTA application stayed. Webb’s application was
dismissed and she appealed.

i.: Is OHC, even if it was acting administratively in deciding to terminate Webb’s lease, under a
“duty to act fairly”?

r.: When an individual (in this case disadvantaged) qualifies for a right under statute (state
assistance) and receives that right, he has an interest in the benefit derived from the right and is
therefore entitled to fairness when dealing with an authority who has the statutory power to
withdraw that right. The authority is required to give notice and allow for a response (no formal
hearing is necessary).

a.: For OHC. Mackinnon ACJO: Must ask what is appropriate to require of a particular
authority in way of procedure, given the nature of the authority, the nature of its power and the
consequences of the exercise of power to the individuals affected, and nature of relationship
between authority and individuals affected (Inuit Tapirisat). In this case, Webb was sent
numerous letters advising her that her lease would be terminated if her children’s behaviour did
not change. She was visited numerous times by a community relations worker employed by OHC
and was similarly informed. There is no evidence that Webb made any effort to respond.
Therefore, OHC treated Webb fairly.

Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin.
LR 250 (Alta. QB) (at 158)
f.: ∏ applied to be appointed to ∆ medical staff. Hospitals Act gave ∆ board a general
responsibility for its affairs and power to make by-laws. S. 11 of by-laws provided that
applications be sent to College of Physicians for its recommendation, to chief of its medical staff
and to appointments committee. College approved ∏, but board rejected him in 1984. ∏ applied
again in December 1985. ∏’s application not sent to College. Appointments committee
considered ∏’s application, did not ask ∏ to appear, and denied application. ∏ asked to appear

8
before ∆ when it considered him, he was refused and in February ∆ rejected him again without
reasons. ∏ sought certiorari to quash board decision and mandamus to compel reconsideration.

i.: Was ∆ required, under duty of fairness, to have ∏ appear before them before making a
decision to reject his application to be appointed to the medical staff of the hospital?

r.: A body exercising a public duty, if its decision will modify, extinguish or affect a right or
interest of a person when that person’s rights or interests are being considered and decided upon
in a way that is in law or for practical purposes final, or final subject to appeal, must adhere to
procedural standards the precise nature of which will depend upon the nature and extent of the
right or interest.

a.: For ∏. McDonald J.: There no longer needs to be a “right to which a corresponding
obligation of law” exists to employ certiorari because: (1) courts will protect both rights and
“interests”; (2) certiorari is available when there is both a duty to act judicially and a duty to act
fairly; (3) the content of a duty to act fairly will vary contextually; (4) the distinction noted above
is artificial and cannot withstand scrutiny in light of object of judicial review by certiorari. ∏ had
no reasonable expectation to be granted application. However his professional interests are
affected by decision – if denied privileges, this would speak to some problem with his
“credentials, training, suitability, experience and references” and therefore cast a slur on his
reputation and limits his ability to practice. Board should have given reasons, its decision was
invalid because ∏ application was not sent to College as required by its by-laws and
appointments committee had not given a written report with its reasons.

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57)
f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992
was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December
1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from
s. 9 requirement to apply for permanent residence outside Canada on humanitarian and
compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from
lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π
was making progress and that deportation would likely result in relapse, and that both she and her
children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected
request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in
decision by Caden). 27 May 94 Π served deportation order for June 17. Order stayed pending
appeal.

i.: Were the C/L principles of procedural fairness violated with regards to: (i) Participatory
rights? (ii) Lack of reasons for decision made by Officer Caden?

r.: ∏ not confined to certified question of general importance – only requires this to trigger
appeal and can then raise any issue. An administrative decision that affects “the rights, privileges
or interests of an individual” triggers a duty of fairness. Duty of fairness applies to h&c decisions.
Factors affecting content of duty of fairness: (1) closeness of admin process to judicial process
indicates degree of duty; (2) nature of statutory scheme (i.e. presence or absence of appeal); (3)
importance of decision to individual(s) affected; (4) legitimate expectations for certain

9
procedures or results create extensive procedural rights, but not substantive rights; (5) choices of
procedure by agency.
In this case, regarding claims under s. 114(2) of the Immigration Act: participatory rights are met
through the allowance of written submissions by the Π (no oral hearing is necessary); procedural
fairness rights require the giving of reasons for any decision – however the form of those reasons
is flexible.

a.: For ∏. L’Heureux-Dube J.: Participatory Rights: (1) H&C decision is not like judicial
process since it involves considerable discretion; its role is a statutory exception to immigration
law – more relaxed duty of fairness. (2) No appeal to h&c decision (just judicial review) –
stronger duty of fairness. (3) H&C decision is important – stronger duty of fairness. (4) No
legitimate expectations due to UN Convention – more relaxed duty of fairness. (5) Statute
accords considerable flexibility to Minister on procedures – more relaxed duty of fairness.
Circumstances therefore require full and fair consideration of issues (not ‘minimal’
consideration). However an oral hearing is not required under duty of fairness here. Π written
submissions were sufficient. Provision of Reasons: written reasons are useful in that (1) they
foster better decision making (issues and reasoning are well articulated and well thought out); (2)
reasons allow parties to see that issues have been carefully considered; (3) reasons invaluable if
decision to be appealed; (4) those affected may be more likely to feel they were treated fairly. To
avoid overburdening officials, should allow flexibility by accepting various types of written.
Reasons should therefore be given in cases where the decision is of important significance to the
individual, when there is a statutory right to appeal, or other circumstances. In this case, reasons
should be given because of the critical nature of the decision. This was fulfilled when Π received
notes from Officer Lorenz.

1.2.5. Non-final (Investigative) Decisions

Re Abel and Advisory Review Board (1979), 97 DLR (3d) 304 (Ont. Div. Ct.); aff’d (1981),
119 DLR (3d) 101 (OCA) (at 168)
f.: ARB created by order in council under Mental Health Act to annually review all confined
psychiatric patients under warrant of LG after begin found not guilty of a criminal offence due to
reason of insanity. ARB made report about each patient to LG including any recommendations
for release. Lawyers for patients, in preparing for review, requested disclosure of patient files by
the institution, especially reports submitted to ARB – ARB refused. At hearing, lawyers asked for
disclosure of reports given to ARB – ARB refused since chairman said he had no authority.
Application for review made. Claim for access to files from institution failed since institution was
expressly prohibited by the Act to disclose the files.

i.: Is ARB empowered to disclose reports received from an institution which is statutorily
prohibited from disclosing such reports? Is ARB subject to review, given that its
recommendations to the LG are not binding?

r.: Even though an investigative report may not be binding, if there is a close proximity between
investigation and decision, and if individual being investigated is exposed to harm, the parties are
entitled to procedural fairness after the report is compiled.

10
a.: For Abel. ARB decision quashed and remitted back for reconsideration. Grange J.: ARB
report does not bind LG, therefore minimum procedural standards under Statutory Powers
Procedure Act do not apply. Patient’s only hope of release is favourable recommendation of
ARB, therefore understandable that counsel for patient would wish to see reports. One
fundamental rule of natural justice is adequate opportunity of knowing case to be met and of
answering it and putting one’s own case forward. This does not mean that ARB must fully
disclose – there is available discretion to determine if disclosure would cause ham to the
administration of the centre and to the patient. Here, Chairman denied disclosure request without
considering whether such disclosure would cause the harm described, therefore natural justice
failed.

Dairy Producers’ Co-operative Ltd. v. Saskatchewan (HRC) [1994] 4 WWR 90 (Sask. QB) (at
172)
f.: ∆ appointed an officer to investigate an accusation of sexual harassment and report if there was
basis for recommending the appointment of a board of inquiry to adjudicate complaint.
Investigation process detailed in regulations of Act. ∏ informed of complaint and investigation
occurred. ∏ attempted to get more info on particulars of complaint but was denied. Investigator
found probable cause to adjudicate complaint. ∆, under its mandate, attempted to settle matter. ∏
was then provided full details of complaint (including evidence). Settlement attempts failed,
therefore board of inquiry was established. ∏ then applied to court for it to quash the establishing
of the board and the investigator’s report citing “probable cause” to believe Act was infringed,
based on allegation of breach of procedural fairness during the process leading to striking of
board of inquiry.

i.: Are investigator and settlement talks subject to a duty of procedural fairness, even though the
actions of these two bodies have no power to affect the rights of the ∏?

r.: There is no strict duty of fairness on investigators during the investigation. If the report and/or
recommendations of investigator will result in a decision affecting another person’s rights, the
investigator in under a duty of fairness that require them to inform the interested party of (1) the
substance of the case against it and (2) allow an opportunity for responding representations or
submissions. This duty may not arise if the report will not affect a person’s rights.

a.: For ∆. Wright J.: In this case the investigator had no power to affect rights of ∏. Settlement
negotiations that followed also did not affect rights of ∏. Rights of ∏ only would be affected
one Board of Inquiry set up. Settlement negotiations went on for 6 months, therefore ∏ knew ∆
case. This amounted to ∏ waiving its right to object to investigator’s process (as being
procedurally unfair) if it had the right (which it did not).

Irvine v. Canada (Restrictive Trade Practices Commission) [1987] 1 SCR 181 (at 177)
f.: Under Combines Investigation Act, there is a two-stage process for suspected unlawful trade
practices. First is an inquiry conducted by a hearing officer appointed by ∆. Officer produced
report submitted to ∆, which then must decide if public inquiry is necessary. Officer proceeded in
camera and did not follow all rules of procedural fairness (limited right of witnesses to be present
when other witnesses were being examined, restricted cross-examination rights). ∏ challenged
officer’s process, wishing right to be present for all witness testimony and right to cross-examine.

11
i.: While investigating the claims of unlawful trade practices, did the Officer’s proceedings run
contrary to the duty of fairness?

r.: Favourably citing Abel, an investigating body with no determinative power to affect
rights/interests of a party is not subject to strict rules of procedural fairness. Their procedure is
flexible.

a.: For ∆. Estey J.: The Act provides that any report that is made “against another person”, the ∆
shall make no such report unless such person has been allowed “full opportunity to be heard in
person or by counsel”. Director may be called to present records/evidence to AG for
consideration. This is purely an information gathering process. AG would then lead an
investigation bound by rules of fairness. In any criminal prosecution that may follow, no
testimony ∏ had given at hearing to be used against ∏ at trial. Director may be required to
submit an interim report outlining evidence obtained and Director’s opinion, but that is the end of
the matter. Minister has no power to take further action, therefore investigative process has no
determinative power to affect rights/interests of ∏. Therefore, it was sufficient that Officer
allowed all parties to be represented by counsel and to object to improper questioning and to re-
examine their clients to clarify the testimony given (sufficient procedural fairness).

Summary of Non-Final Decisions

For non-final decisions, no universal rule regarding procedural fairness. In Canada, must look at
proximity of investigator’s report and final decision, and exposure to harm of those being
investigated.
1. Investigation – no strict procedural fairness rights
2. Consideration of Investigator’s Report – procedural fairness rights
3. Hearing by tribunal – procedural fairness rights

1.3. Procedural Fairness Arising From Legitimate Expectations

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170 (at 185)
Sopinka J.: “The principle…is simply an extension of the rules of natural justice and procedural
fairness. It affords a party affected by the decision of a public official an opportunity to make
representations in circumstances in which there otherwise would be no such opportunity. The
court supplies the omission where, based on the conduct of the public official, a party has been
led to believe that his or her rights would not be affected without consultation.”

What conduct creates a legitimate expectation? (1) Representations; (2) Past practice (3) Nature
of the interest at stake (Baker). Legitimate expectations provide procedural (not substantive)
fairness (1) where C/L would not normally accord any procedures; (2) where C/L would not
normally accord that level of procedure.

Reference re Canada Assistance Plan [1991] 2 SCR 525 (at 186)

f.: CAP authorizes Feds to enter into agreements with provinces for cost-sharing social assistance
and welfare programs. S. 8 provided that the agreements would remain in force as long as
relevant provincial law was in operation, subject to termination by consent, or unilaterally given
1 year’s notice. Without notice, feds introduced Bill limiting increase in financial contribution to
BC, Alberta and Ontario to a figure below those in agreements with provinces.

12
i.: Is government precluded from introducing bill by virtue of legitimate expectation that
amendments would only be made to agreements by consent of provinces?

r.: There is no legitimate expectation that can allow the courts to prevent Parliament from
introducing legislation.

a.: Sopinka J.: “If doctrine of legitimate expectations required consent, and not merely
consultation, then it would be the source of substantive rights; in this case, a substantive right to
veto proposed federal legislation.” There is not authority supporting this. Legitimate expectation
is part of procedural fairness. Procedural fairness does not apply to bodies exercising purely
legislative function (Inuit Tapirisat) and/or a ministerial decision on broad grounds of public
policy (Martineau). (Appears to broaden concept of “legislative function” to include ministerial
decisions. Therefore, where doctrine of legitimate expectations has most promise, i.e. ministerial
decisions, this definition may be interpreted to remove doctrine from applying to such decisions.)
Courts do no intervene with the process of introducing legislation in Parliament on grounds of
legitimate expectations. To allow otherwise could bring the business of Parliament to a standstill.
Also, it is fundamental to our system that a government is not bound by the acts of its
predecessors.

Furey v. Roman Catholic School Board for Conception Bay Centre (1991), 2 Admin. LR (2d)
263 (Nfld. SCTD); rev’d at Nfld. CA (at 191)
f.: ∆ decided to close an elementary school.  (13 residents with children attending the school)
sought certiorari to quash decision, alleging that decision was taken without public input that
constituted a breach of procedural fairness. In past, ∆ had consulted parents concerning the
amalgamation of two schools. There were also Department of Education guidelines that establish
a process of consultation prior to a decision to close a school. These guidelines were not followed
by ∆.

i.: When legislation is silent on concept of procedural fairness, does C/L introduce a duty of
procedural fairness that, when not followed, justify a court setting aside a decision to close the
school?

r.: Where there are guidelines for school closures that suggest public consultation and where a
school board has consulted with the public in the past, the court will apply a C/L duty of fairness
(notwithstanding legislative silence on procedural fairness) since there is a legitimate expectation
that a school board will consult with the public before closing a school.

a.: For . Decision quashed and remitted back to  for reconsideration. Wells J.: The ∆
decision was an administrative (which deal with specifics) and not a legislative one (which are
usually general decisions of broad application). Certain administrative decisions concerning
education (which have profound effects on children, parents, community and property values)
may import a duty of fairness. Procedural fairness would have been satisfied if the guidelines had
been followed. History of consultation did create a “reasonable expectation” that ∆ was operating
under a system that allowed for procedural fairness, and that they would continue to do so when
making the decision to close the school.

13
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) [2001] 2 SCR 281 (at
195)
f.:  was told by prior Minister that if it moved location it would have its license regularized. 
did so, however its attempt to have its license updated, the new minister () refused, because to
do so would force the government to provide extra funding, which was not a priority at the time.
 sought mandamus to compel  to issue license. Quebec SC denied motion because doctrine of
legitimate expectations does not create substantive rights. Quebec CA agreed but awarded
mandamus under public law estoppel.  appealed.

i.: Was the  entitled, through doctrine of legitimate expectations based on the previous action of
the prior minister, to procedural fairness before the current minister decided against their license
renewal?

r.: Doctrine of legitimate expectations does not import substantive rights. There are legitimate
expectations that Minister would make reasonable decision based on evidence. Estoppel may be
available against a public authority, but the requirements for it go well above those for legitimate
expectations. The claimant must establish reliance on the representation and that he acted on it or
in some way changed his position. However, must be sensitive to factual and legal context. If
statutory decision maker has high status and broad power, estoppel will not apply.

a.: For . Binnie J.: Doctrine of Legitimate Expectation – looks to conduct of the public
authority in the exercise of power including established practices, conduct or representations that
can be characterized as clear, unambiguous and unqualified in order for to import procedural
rights. If substantive relief is to be awarded, more demanding conditions precedent must be
fulfilled than what is required under doctrine of legitimate expectations. Current minister made a
patently unreasonable decision (no evidence that granting a license would require additional
funding from government) and failed to act in a procedurally fair manner in refusing the license.
Promissory Estoppel – Estoppel may be available against a public authority, but the requirements
for it go well above those for legitimate expectations. The claimant must establish reliance on the
representation and that he acted on it or in some way changed his position. However, must be
sensitive to factual and legal context. If statutory decision maker has high status and broad power,
estoppel will not apply. Here, Minister is decision maker and he is mandated in broad terms to act
in public interest. Therefore no grounds for estoppel.

1.4. Procedural Fairness and the Canadian Bill of Rights

NAPO v. Canada (AG) (1990), 60 DLR (4th) 712 (FCA) (at 211)
f.: Revisitation of issue in Inuit Tapirisat – procedural obligations of GIC in the context of
“Cabinet Appeals” from the decision and orders of regulatory agencies. At trial, judge held that
Cabinet, in such cases, was determining the “rights and obligations” of subscribers to the Bell
Canada system and was therefore bound to act in accordance with the “principles of fundamental
justice”. ∆ appealed.

i.: Is GIC bound, by s. 2(e) of the Bill of Rights, to follow principles of fundamental justice when
hearing “Cabinet Appeals” of decisions/orders of regulatory agencies?

14
r.: Not clear what rule is here. (1) May be that no rights or obligations of NAPO were affected by
GIC decision, therefore they had no standing; or (2) “rights and obligations” under s. 2(e) of Bill
of Rights does not include the setting of subscriber rates and the determination of costs allowed
to be taken into account in determining Bell Canada’s allowable rate of return.

a.: For ∆. S. 2(e) of BOR does not apply to GIC. Stone JA.: NAPO has right to intervene on
behalf of members of general public in CRTC proceedings. However no rights or obligations
unique to them were determined by the GIC decision; “such rights, if any, flowed to all of Bell
Canada’s subscribers regardless of whether they participated or not.” Nothing in s. 64(1) of the
Act restricted GIC in varying CRTC decision provided the variation did not result in unjust or
unreasonable rates or rates that were discriminatory.

Authorson v. Canada (AG) 2003 SCC 39 (supplemental material)

f.: Disabled veteran’s funds used for their pensions were administered by Dept. of Veteran’s
Affairs. These funds were rarely invested or credited with interest until 1990. Parliament chose to
limit Crown liability by enacting s. 5.1(4) of Department of Veteran’s Affairs Act, which provides
that no claim shall be made after enactment of provision for interest on moneys held/administered
by the Minister during any period prior to January 1, 1990.  (class) sued Crown for breach of
fiduciary duty and claimed s. 5.1(4) was inoperative under Canadian Bill of Rights because
inconsistent with right not to be deprived of enjoyment of property except by due process of law
(s. 1(a)) and right to a fair hearing in accordance with principles of fundamental justice (s. 2(e)).
Trial and COA held for .  appealed.

i.: Is s. 5.1(4) of Department of Veteran’s Affairs Act inoperative for violating s. 1(a) and/or s.
2(e) of the Bill of Rights?

r.: S. 1(a) of the BOR only provides procedural rights (notice and representations) with regards to
the right of enjoyment of property only in context of adjudication of such rights before a
court/tribunal, but not where government unambiguously legislates to completely eliminate such
rights. S. 2(e) only guarantees the fundamental justice of proceedings before any
court/tribunal/administrative body that determines individual rights and obligations; it does not
apply to Parliament while it is enacting legislation. The BOR does not provide substantive rights.

a.: For ∆. Major J.: The Crown did owe a fiduciary duty to  and did owe interest to .
However, the BOR does not entitle  to procedural rights when Parliament is enacting legislation
(such a right did not exist prior to 1960, nor does it exist now), and does not protect the
enjoyment of property when Parliament clearly destroys such a right by unambiguous legislation.
The guarantee of fundamental justice similarly only applies to courts/tribunals that determine
individual rights and obligations, and not to Parliament.

1.5. Procedural Fairness and the Charter

NOTE: Recent decisions indicate that by virtue of implication of their empowering statute,
tribunals can determine constitutional issues.
Paul v. BC (Forest Appeals Commission) 2003 SCC 55 -  has jurisdiction to determine if 
could defend its actions (illegally cutting down trees on Crown land) by claiming aboriginal title.

15
NS (Worker’s Comp. Bd.) v. Martin 2003 SCC 54 –  asked  to rule that certain provisions of
WC Act violated s. 15 of the Charter. SCC ruled that by implication of its empowering statute
the  can determine if relevant provisions of the Act violated s. 15 of the Charter.

 Unlike s. 2(e) of the Bill of Rights, which only allows for procedural rights, s. 7 of the
Charter has both procedural and substantive guarantees (Re BC Motor Vehicle Act).

Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 (at 215)
f.:  were convention refugee claimants landed in Canada. Minister, on advice of RSAC,
determined they were not convention refugees.  applied to Immigration Appeal Board for
redetermination. Their application were not referred to an oral hearing because IAB determined
on strength of material submitted by  that there were no reasonable grounds for believing that
they could establish claim at a hearing.  appealed to FCA but failed.  appealed to SCC.

i.: Were the  denied procedural fairness (in that they did not have a fair opportunity to present
refugee claims or to know the case they had to meet) under ss. 45, 70 and 71 of the Immigration
Act, 1976, contrary to s. 7 of the Charter?

r.: “Life, liberty and security of the person” are 3 distinct and separate interests and each must be
given meaning. “Security of the person” must encompass freedom from the threat of physical
punishment or suffering as well as freedom from actual punishment/suffering. To deny a refugee
convention status when there is a threat to one’s life or freedom if deported from Canada is a
deprivation of security of the person. Fundamental justice requires one to know the case to be
met, and requires an oral hearing where credibility is in issue. To deny access to Ministerial
policies and information concerning a refugee’s application for Convention status, when the
applicant must demonstrate that the Minister was wrong in denying such status, makes one
unable to know the case to be met, which accordingly this violates fundamental justice.
Administrative convenience is not a justifiable s. 1 limit to the rights under s. 7.

a.: For ∏. Wilson J.: S. 7 Rights of Life, Liberty and Security of the Person – “Everyone”,
under s. 7 of the Charter, includes every human being who is physically present in Canada. “Life,
liberty and security of the person” are 3 distinct and separate interests and each must be given
meaning. Under the Immigration Act, a convention refugee is granted the right to a determination
by Minister as to whether a permit should be granted entitling him/her to remain in Canada, the
right not to be returned to a country where his life or freedom would be threatened, and the right
to appeal a removal order or deportation order made against him. Must determine if deprivation
of these rights deprive the right to life, liberty and security of the person within meaning of s. 7.
“Security of the person” must encompass freedom from the threat of physical punishment or
suffering as well as freedom from such punishment. Although applicants have no substantive
right to be granted convention status, to deny convention status in ∏’s circumstances is to deny
the right to not be removed from Canada to a country where one’s life or freedom would be
threatened. The denial of such a right does amount to a deprivation of security of the person
under s. 7.
S. 7 Principles of Fundamental Justice - Minimum concept of fundamental justice is “that the
tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a
judicial temper, and must give to him the opportunity adequately to state his case.” Written

16
submissions may be adequate substitute for oral hearing in appropriate circumstances. However
where there is a serious issue of credibility at stake, an oral hearing will be required. Applicants
appealing from a negative ruling on their convention status are not given access to Ministerial
policies and information, but must show on the balance of probabilities that the Minister was
wrong. It is essentially impossible to do so unless applicants are aware of the case to be met.
Therefore this procedure contravenes fundamental justice.
Application of s. 1 - Administrative convenience is not a justifiable reason to limit the rights
under s. 7 ( counsel argued that requiring an oral hearing in each case would overly burden the
IRB – subsequent jurisprudence suggests this can be a valid argument)

Wilson v. BC (Medical Services Commission) (1988), 53 DLR (4th) 171 (BCCA) (at 236)
f.: In BC medical care, doctors bill government for treatment to patients. In 1983, ∆ established a
cost-control scheme limiting number of practicing doctors and restricting geographic areas where
they could practice. Doctors required a “practitioner number” in order to bill for services. Current
doctors were assigned numbers while new ones had to apply to , who was advised about need
by local/regional committees.  represented doctors making various claims (some from outside
BC were denied “practitioner numbers”, others were given numbers subject to geographic
restrictions) and argued the scheme violated ss. 6, 7 and 15.  lost at trial but appealed.

i.: Does this scheme interfere with the liberty of professionals to practice their profession at a
venue of their choosing, contrary to meaning of ‘liberty’ under s. 7 of the Charter, even though
there is an incidental economic component of the right being raised?

r.: “Liberty”, under the meaning of s. 7, includes the right to freedom of movement as well as the
right to choose one’s occupation and where to pursue it, subject to state deprivations in
accordance with principles of fundamental justice.

a.: For ∏. The Court: This case is not solely about the right to work, but is about the right to
pursue a livelihood or profession, which concerns one’s dignity and sense of self-worth. The plan
does not guarantee an income to doctors – it simply provides a right to be paid for services
rendered. The effect of the scheme is to deny the right to pursue a profession in the community
which one chooses. The government can do this but only in accordance with fundamental justice.
These schemes are not always ultra vires. Here, there is procedural unfairness (no hearing, no
duty to make decisions, no way of knowing current state of need for doctors in any area), unjust
discretion (law is too vague and uncertain) and discrimination in application of the system.
(the quality of this decision as an authority is under question)

Blencoe v. BC (HRC), [2000] 2 SCR 307 (at 246)

f.:  was a cabinet member of the BC NDP government. In July and August 1995, two
complaints of sexual harassment were filed against  with the BC HRC. Hearings were
scheduled 30 months later, in March 1998.  was subject to intense media attention once the
allegations were made, and suffered severe depression and considered himself “unemployable” in
BC due to the outstanding complaints. He applied for judicial review in November 1997 to stay
the complaints due to unreasonable delay in processing the complaints, which inhibits his ability
to make full answer and defence to the allegations against him. This delay caused him serious
harm that amounted to an abuse of process and denial of natural justice.  won at BCCA, who

17
found that his rights under s. 7 of the Charter (security of the person) were violated and this
violation was not in accordance with fundamental justice.  appealed.

i.: Does Charter apply to actions of BC HRC? Have ’s s. 7 rights been violated by state-caused
delay in the proceedings? If not, was  entitled to remedy pursuant to administrative law
principles where the delay did not interfere with the right to a fair hearing? If  is entitled to a
remedy, was stay of proceedings the appropriate one?

r.: “Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect

important and fundamental life choices that go to the core what it means to enjoy individual
dignity and independence (ex. Parental decisions regarding medical care for their children [B(R)];
where a municipal worker can establish his/her home [Godbout]; the custody of children [G(J)]).
This does not include economic liberty or economic security.
“Security of person” engaged when there is state interference with bodily integrity (criminal
sanction) and serious state-imposed psychological stress (e.g. regulating abortion– Morgentaler
[1988]). Two requirements: (1) the psychological harm must be state imposed; (2) psychological
prejudice must be serious. S. 7 does not create a constitutional right to dignity, however human
dignity/reputation is an underlying value that must guide the courts in interpreting the Charter.
Administrative C/L Remedies of Abuse of Process - There must be proof of significant prejudice
which results from the delay for there to be a C/L remedy. It must be a delay that has caused
significant psychological harm to a person, or attached a stigma to a person’s reputation such that
the HR system would be brought into disrepute. Whether delay results in breach of duty of
fairness depends on nature of case, facts and issues, purpose and nature of proceedings, whether
 contributed to delay; contextual factors, like nature of the various rights at stake, must also be
considered to determine if community’s sense of fairness would be offended by delay.

a.: For ∆. Bastarache J.: S. 7 applies outside the criminal context (New Brunswick (Minister of
Health and Community Services) v. G(J)), where there is “state action which directly engages the
justice system and its administration”. “Life, liberty and security of the person” are 3 distinct and
separate interests and each must be given meaning (Singh).
“Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect
important and fundamental life choices that go to the core what it means to enjoy individual
dignity and independence (ex. Parental decisions regarding medical care for their children [B(R)];
where a municipal worker can establish his/her home [Godbout]; the custody of children [G(J)]).
This does not include economic liberty or economic security. In this case the state has not
prevented the respondent from making any fundamental personal choices, therefore liberty
interest is not engaged.
“Security of person” engaged when there is state interference with bodily integrity (criminal
sanction) and serious state-imposed psychological stress (e.g. regulating abortion– Morgentaler
[1988]). Two requirements: (1) the psychological harm must be state imposed; (2) psychological
prejudice must be serious. S. 7 does not create a constitutional right to dignity, however human
dignity/reputation is an underlying value that must guide the courts in interpreting the Charter. In
this case it is assumed, based on trial judge’s finding, that the outstanding complaints did
contribute to the stigma, but the stress, anxiety and stigma that arise from administrative or civil
proceedings are not “serious” in this case. However this does not mean that s. 7 cannot be
invoked in HR proceedings involving extreme/serious delay.

18
Administrative C/L Remedies of Abuse of Process - There must be proof of significant prejudice
which results from the delay for there to be a C/L remedy (not so in this case). It must be a delay
that has caused significant psychological harm to a person, or attached a stigma to a person’s
reputation such that the HR system would be brought into disrepute. For abuse of process to
result in a stay the process must be “unfair to the point that they are contrary to the interests of
justice.” Whether delay results in breach of duty of fairness depends on nature of case, facts and
issues, purpose and nature of proceedings, whether  contributed to delay; contextual factors,
like nature of the various rights at stake, must also be considered to determine if community’s
sense of fairness would be offended by delay. In this case delay was not inordinate.
Lebel J. (dissenting in part): Administrative C/L Remedies of Abuse of Process -
Administrative delay that is determined to be unreasonable based on its length, its causes, and its
effects, is abusive and contrary to administrative law principles. It is not limited to situation that
bring the human rights system into disrepute. There can be remedies other than stay (reserved for
highest threshold of abusiveness) for lower threshold of unreasonable delay. Must assess delay
considering 3 factors: (1) Length of Delay; (2) Cause of Delay; (3) Impact of Delay on . Stay of
proceedings requires heavy burden since it would negate public interest in enforcement of HR
legislation, and radically affects rights of complainants. It should be limited to those situations
that compromise the very fairness of a hearing and where delay in the conduct of the process
leading to it would amount to shocking abuse of process. In this case, there is a significant delay
but the hearing will remain fair. Therefore COA stay is set aside and an order is given for an
expedited hearing.

2. Choice of Procedures
Goldberg v. Kelly 397 US 254 (1970) (USSC) (at 287)
f.: Welfare recipients challenged procedures for termination of welfare payment in NY state/city
as violating 14th amendment (removal of property right without due process of law). Before
termination, recipients were given notice and reasons for termination (in NY city, this was
preceded by discussion with caseworker) and were entitled to make written representations. After
termination, recipients were entitled to trial-type hearing.

i.: What procedures are appropriate when moving to terminate welfare payments in NY
state/city?

r.: To terminate welfare payments, a pre-termination oral hearing, with or without counsel, must
be held, with reasons given after decision is handed down.

a.: For ∏. Justice Brennan: Providing pre-termination hearings are justified because removal of
welfare removes person’s daily subsistence; hearing is required because (1) written decisions are
not sufficient since many applicants may not write well and cannot obtain professional help; (2)
written submissions are not as flexible and do not allow applicant to mold arguments to issues
decision maker feels are important; (3) written submissions are not useful for assessing
credibility; (4) second-hand presentation of applicants case to decision maker by caseworker is
inadequate since he/she is one who gathers information upon which the charge of ineligibility
rests. Recipients must also be allowed to have counsel. A decision maker must provide reasons
and indicate evidence relied upon to make the determination. Government interests in conserving

19
fiscal/admin resources do not override this requirement (can cut costs by developing efficient
procedures).

Mathews v. Eldridge 424 US 319 (1976) (USSC) (at 289)

f.: Same scenario as in Goldberg v. Kelly, except here ∆ challenged the procedures for the
termination of disability benefits under the Social Security Act by reference to 5th amendment.
District court followed Goldberg and ruled that the procedures were inadequate. ∏ (secretary)
appealed.

i.: What procedures are appropriate when moving to terminate disability payments under the
Social Security Act? Does Golberg v. Kelly govern?

r.: Identifying dictates of due process require consideration of 3 factors: (1) nature of private
interest that will be affected by official action; (2) risk of an erroneous deprivation of such
interest through procedures used and probable value, if any, of additional or substitute procedural
safeguards; (3) Government’s interest, including function involved and fiscal/admin. burdens that
additional/substitute procedures would entail.

a.: For ∏. Justice Powell: Here, the long delay (over 1 year) between benefit cut-off and the
holding of a hearing and the typically modest resources of a family of a disabled worker create
significant hardship. However, disability is not directly related to financial need and potential
deprivation here is likely to be less than in Goldberg given other means of available government
assistance. Therefore something less than an evidentiary hearing is sufficient prior to adverse
administrative action regarding disability benefits. Must also consider fairness/reliability of
current system. Difference between current case and Goldberg is that there is heavy reliance on
medical tests, not credibility, in determining disability entitlement. Additionally, written
representations are made by physicians and by applicants with help SSA office. Recipient has full
access to information relied upon, is given a tentative assessment with reasons prior to cut-off
and provides for written rebuttal. This allows the recipient to “mold” his argument to respond to
precise issues which decision maker regards as crucial. Therefore, value of oral hearing is
substantially less. From public interest perspective, requiring a full oral hearing would incur extra
monetary and administrative costs that would not be insubstantial.

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (at 298)
f.: ∏ applied for landed immigrant status. Minister issued certificate under s. 53(1)(b) of the
Immigration Act stating ∏ was a danger to the security of Canada as a prelude to an order
deporting ∏. ∏ had opportunity to make written submissions, he did not have a copy of the
immigration officer’s report (which was the basis for the Minister’s decision) and therefore was
not able to respond to it orally or in writing. The report was based on material from CSIS.

i.: Are the procedures for deportation set out in the Immigration Act constitutionally valid?

r.: A Convention refugee who has made a prima facie case that there may be a risk of torture
upon deportation under s. 53(1)(b) of the Immigration Act is entitled to the following procedures
in accordance with his/her right of fundamental justice under s. 7 of the Charter:

20
1. ∏ must be informed of case to be met. This includes material which Minister bases decision
on (subject to reduced disclosure for safeguarding confidential public security documents);
2. There must be an opportunity to respond to the case presented by the Minister. Written
submissions must be accepted from the subject of the Minister’s order after the ∏ has been
provided with an opportunity to examine the material being used against him;
3. Minister must then consider the submissions and provide written reasons for decision. They
must rationally sustain a finding that there are no substantial grounds to believe that ∏ will be
subject to torture, execution or other cruel/unusual punishment if deported. Minister must also
outline, subject to valid legal reasons for non-disclosure, why the refugee is a danger to the
security of Canada. The Minister must make the written decision herself.

a.: For ∏ - requirement of strong procedural protections. The Court: Principles of

fundamental justice demand, at minimum, compliance with C/L requirements of procedural
fairness (Singh). The C/L is not constitutionalized; it is used to inform the constitutional
principles that apply. Five Baker factors for procedural fairness: (1) closeness of admin process to
judicial process indicates degree of duty; (2) nature of statutory scheme (i.e. presence or absence
of appeal); (3) importance of decision to individual(s) affected; (4) legitimate expectations for
certain procedures or results create extensive procedural rights. This does not create substantive
rights; (5) choices of procedure by agency [ability to choose own procedures]. In this case: (1)
resemble judicial proceedings (balancing risks) but also involves discretion. (2) There is no
provision for a hearing, no requirement of written or oral reasons, no right of. Therefore there is a
need for strong procedural safeguards. (3) ∏ is a Convention refugee who faces risk of torture if
deported back to Sri Lanka. Therefore there is a need for strong procedural safeguards. (4)
Canada is signatory to int’l conventions prohibiting deportation to torture, therefore ∏ had
legitimate expectation that wouldn’t be deported when high risk of torture – there is a need for
strong procedural safeguards. (5) Minister is free under terms of statute to choose whatever
procedures she wishes to make decisions under Act (considerable discretion). However this must
be reconciled with elevated procedural protections mandated by refugees who face torture upon
deportation. Application of s. 1: Limitations on rights must be connected to the objective and
proportional. Here the connection is lacking. Excepting some Convention refugees from the
protection of the Act does not justify the failure of the Minister to provide fair procedures when
that exception involves a risk of torture upon deportation.

Statutory Powers Procedures Act (Ont.) (at 302)

(1) Prevails over all other Acts (prior and subsequent) unless express legislative override (s. 32)
(2) Application: (i) to a proceeding of a tribunal in exercise of statutory power of decision
conferred by or under an Act of Legislature (primary and subordinate (regulations) legislation)
that requires tribunal to hold a hearing [s. 3(1)] (ii) tribunal requires a hearing “otherwise by law”
(C/L – prior to Nicholson) [s. 3(2)].
(3) If tribunal’s rules made under s. 25.1 deal with pre-hearing conferences, the tribunal may
direct the parties to engage in such conferences [s. 5.3(1)]
(4) If tribunal’s rules made under s. 25.1 deal with disclosure, the tribunal may order for (a) the
exchange of documents, (b) oral/written examination of a party, (c) exchange of witness
statements, (d) provision of particulars, (e) any other form of disclosure, at any time before
hearings are complete [s. 5.4(1)]

21
(5) Where good character of party is in issue, party is entitled to reasonable info regarding
allegations prior to the hearing [s. 8].
(6) A tribunal may take judicial notice facts [s. 16]
(7) A tribunal must give written reasons for a decision if requested by any party [s. 17(1)] (only
apply Baker if SPPA does not apply).
(8) S. 25(1) – an appeal from a decision of a tribunal to a court operates as a stay in the matters
unless tribunal says otherwise or unless there is a provision in the empowering Act that states that
an appeal does not act as a stay. S. 25(2) – An application for judicial review is not considered an
appeal under s. 25(1). Must then make an application to the court for a stay of the proceedings.
(9) A tribunal has the power to determine its own procedures and make rules governing the
practice and procedures before it [s. 25.1]

3. Specific Content Issues

3.1. Pre-Hearing Issues
3.1.1. Notice
Problems about notice placed in 4 categories: (1) problems about form, (2) problems about the
manner of service, (3) problems about time, (4) problems about the contents.
 Where there are indefinite interested parties, public notice (in newspapers of wide
circulation) is required (like in the case of school closures – Re Hardy and Minister of
Education (1985), 22 DLR (4th) 394 (BCSC)). However the notice must be clear enough
that the majority of those who may be affected are effectively made aware (like those
whose property would be affected by a proposed hydro transmission line in Re Central
Ontario Coalition and Ontario Hydro (1984), 10 DLR (4th) 341 (Ont. Div. Ct.)).
 It is not clear what the effect will be for those who are given notice too late or respond too
late from that notice due to the unreliability of snail mail.
 Notice must be given long enough before the date of the proposed hearing to give the
party enough time to decide whether to participate and to prepare.
 The content of a notice must provide sufficient information to indicate to the party served
what is at stake at the hearing (in R. v. Ontario Racing Commission, ex parte Taylor
(1970), 15 DLR (3d) 430 (Ont. CA) Taylor was served notice to appear at a hearing to
explain why his horse tested positive for a banned substance but was not told that if he did
not justify the infringement, he would suffer certain consequences).

Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever
Commission) [1997] 3 SCR 440 (at 342)
f.: Krever JA was appointed to head a commission to uncover how more than 1000 Canadians
became infected by HIV and 12,000 became infected with Hep C in the early 80’s. Commission
set up procedural rules: (1) ordinarily Commission counsel would first question witness; (2) all
parties with standing and all witnesses had right to counsel; (3) each party had right to cross-
examine any witness who testified and counsel for witness without standing had right to examine
witness; (4) all parties had right to apply to have any witness called whom Commission chose not
to call; (5) all parties had right to receive copies of all evidence and to submit their own evidence;
(6) all hearings in public unless application made for confidentiality; (7) Commission may
receive evidence inadmissible in court, but would be mindful of dangers of such evidence and its
possible effects on reputation. Hearings were held from Nov 1993 – Dec 1995. October 26, 1995,
Commission delivered memorandum to all parties inviting them to make confidential

22
submissions to Commission of findings of misconduct they felt should be made, noting that any
person who will have such a finding made against them will be given notice. On December 21,
1995, 45 confidential allegation notices naming 95 individuals, corporations and governments
were submitted. Recipients of misconduct notice were given until January 10, 1996 to announce
whether and how they would respond. Many recipients brought applications for judicial review in
Federal Court. On June 27, Richard J ([1996] 3 FC 259 (TD)) declared that no findings of
misconduct could be made against 47 of the applicants, but dismissed others, who then appealed.
Federal Court of Appeal, [1997] 2 FC 36 (CA) quashed one notice but dismissed remaining
appeals.

i.: What are the content limitations that apply to notices to parties warning them of potential
findings of misconduct (did content exceed commission’s jurisdiction)? Were the notices
delivered too late (given on last day of hearings)? Did those who were served notice not given
enough time to respond.

r.: Notices should be as detailed as possible, even if content appears to amount to a finding that
would exceed jurisdiction of Commissioner (this limit only applies to final report). There is no
statutory requirement that Commissioner give notice as soon as foresee possibility of allegation
of misconduct. Where evidence is extensive/complex, may be impossible to give notice before
end of hearings, and vice versa. So long as adequate time is given to make submissions in
response to notice, delivery of notices late in hearings will not constitute unfair procedure.

a.: For ∆. Appeal dismissed. Cory J.: Due to broad mandate, Commissioner can make findings
of fact which might amount of misconduct. However report cannot duplicate wording of CCC
nor should they use words used by courts to express findings of civil liability. The words “failed”
and “responsible” do not imply legal liability. Procedures were adopted consensually after
meeting with all parties. Since this is not a criminal proceeding, notices outlining “case to be
met” are not required. So long as adequate time is given to make submissions in response to
notice, delivery of notices late in hearings will not constitute unfair procedure. In this case the
nature of evidence was complex, therefore Commissioner entitled to deliver notices late in
hearings. Appellants were also given adequate time to respond.

3.1.2. Discovery
Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 SCR 724,
SCC ruled that Canada Labour Code did not empower Labour Relations Board to order pre-
hearing discovery.

3.1.2.1. Documents in Possession of 3rd Party

Ontario (HRC) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 115
DLR (4th) 279 (Ont. Div. Ct.) (at 354)
f.: Board of Inquiry set up under OHRC to hear complaint of racial discrimination made by 10
nurses employed by hospital. Board ordered ∏ to provide ∆ (1) with all statements made by
complainants to ∏ at investigation stage, (2) with statement and identity of any witness
interviewed by ∏ whom ∏ does not propose to call and whose statements might reasonably aid ∆
in answering ∏’s case. ∏ applied for review of this order.

23
i.: Does ∆ Board (decision maker) have legal right to order discovery of ∏ (3rd party) evidence
prior to onset of inquiry by Board?

r.: Ss. 8 and 12 of SPPA empowers ∆ to order production of all investigatory documents
obtained by ∏ Commission, subject to limitation of privilege. [However s. 12 applies prima
facie to an order given during a hearing, not during pre-hearing; s. 8 only allows an order to
disclose reasonable information prior to a hearing in which the “good character, propriety of
conduct or competence of a party is an issue” – applies to HR proceedings. NOTE: This
problem has been rectified by amendment to SPPA – s. 5.4(1) – allowing full disclosure only
if tribunal has established rules under s. 25.1. If SPPA does not apply, must follow Canada
Pacific (supra) and rely on explicit statutory empowerment to make an order of disclosure). Any
claim to litigation privilege does not extend to investigative functions of the ∏. There is no class
privilege for communications between complainants and officers of ∏.
Fruits of investigation are public property and not property of the ∏. To eliminate
element of surprise (and ensure justice is served) in Board of Inquiry under HR legislation,
complete information should be provided; additionally, role of ∏ counsel is analogous to Crown
counsel in criminal proceedings – role is not to ensure ‘conviction’ but to bring before ∏ what
counsel considers credible evidence of alleged discrimination (principle of Stinchcombe – what is
good for civil, criminal law, is also good for certain kinds of tribunals).

a.: For ∆ (disclosure allowed). Application for review of disclosure order dismissed. The
Court: Any claim to litigation privilege does not extend to investigative functions of the ∏.
There is no class privilege for communications between complainants and officers of ∏.
Principles of Stinchcombe apply to ∏ therefore ∏ must supply “fruits of investigation”.

3.1.2.2. Documents in Possession of Decision-Maker (Tribunal)

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)
(at 358)
f.: ∆ scheduled a hearing to determine whether the drug Habitrol marketed in Canada by ∏ is
being sold at an excessive price. Consequences of such a finding under s. 83 could be order for
price reduction, a payment of an offset amount from estimated excess corporate revenue and, on
a finding of a policy of selling at an excessive price, an offset of up to twice the amount of the
estimated excess revenue. In deciding upon a full hearing, Chairman considers report from Board
staff. ∏ seeks disclosure of all documents in ∆ possession which relate to this matter, particularly
the report relied upon by Chairman in calling hearing.

i.: What is the extent of disclosure required to the ∏ (A) of documents in hands of ∆ (decision
maker)?

r.: A board/tribunal that has an economic regulatory function (in the public interest) that does not
affect human rights in a way akin to criminal proceedings will be given leeway in its choice of
disclosure under the duty of fairness (only need to provide information such that accused can
meet its case) if, in pursuing its mandate, the board/tribunal is required to receive confidential
information from its staff/investigators.

24
a.: For ∆. ∏ appeal for disclosure dismissed. MacGuigan JA.: Concept of procedural fairness is
variable and is to be decided in the specific context of each case. The context consists of (1)
nature and seriousness of matters in issue, (2) the circumstances, (3) the governing statute
(Knight). Board is a regulatory agency operating in the public interest. It is in the public interest
that it’s hearing is not unduly long. It must balance its duty to the applicant against limiting its
ability to discharge is responsibilities in the public interest. Board’s obligations of disclosure
under the duty of fairness have been met since it has provided more than enough information to
the ∆ to enable it to meet its case. Law and policy require some leeway be given to an
administrative tribunal with economic regulatory functions if, in pursuing its mandate, the
tribunal is required to receive confidential information. To require the board to disclose all
possibly relevant information gathered while fulfilling its regulatory obligations would unduly
impede its work from administrative viewpoint. Stinchcombe is distinguishable because the ∆
here has economic regulatory functions and has no power to affect human rights in a way akin to
criminal proceedings.

3.1.3. Delay
 Is a practical consideration due to limited resources of administrative agencies, delay
pending the outcome of criminal proceedings, and increased agency acceptance of
complaints arising from actions taken years ago. Consideration due to s. 11 of the Charter
(guarantee of a trial “within a reasonable time”) which indirectly affects interpretation of
s. 7 “principles of fundamental justice” and C/L in this area. Also effect of Blencoe,
where SCC accepted that delay can affect ability of person to respond adequately to
allegations and that delay can lead to abuse of process (difficult claim to make where
seeking a stay but easier if seeking order of expedition).

Kodellas v. Saskatchewan (HRC) (1989), 60 DLR (4th) 143 (Sask. CA) (at 363)
f.: ∏ was accused of harassing two female employees in his restaurant in 1982-3. The ∆ took
well over 3 years to begin proceedings against ∏.

i.: What factors are to be considered when determining if there has been an “unreasonable delay”
in context of s. 7 of the Charter, thus justifying remedial measures?

r.: Must consider and weigh the following factors to determine if there has been an “unreasonable
delay” in context of s. 7 of the Charter: (1) whether delay is prima facie unreasonable, having
regard of time requirements inherent to such proceedings; (2) reason/responsibility for delay –
conduct of complainants, Commission, alleged discriminator; inadequacy of resources; (3)
prejudice caused to alleged discriminator by delay (adapted from SCC decision in Rahey).

a.: For ∏. There was unreasonable delay. Bayda CJS.: Application to this case: (1) time delay
was well over the inherent time requirements (3 yr 11 mo. and 3 yr 2 mo.) therefore delay is
prima facie unreasonable; (2) ∆ was entirely responsible for delay; (3) alleged discriminator
complains that it is now near impossible to track down witnesses since those in the restaurant
business move around constantly and that those who have been located vaguely remember what
occurred at the time of the alleged incidents. Therefore there has been some prejudice due to the
delay.

25
3.2. Oral Hearings
 The claim for an oral hearing is highest when credibility is an issue in the proceedings
(Wilson in Singh), and also when BOR or Charter is invoked (Beetz in Singh; Suresh).
However in sexual assault/harassment cases, an oral hearing may not be conducted (for
reasons of difficulty in facing one’s aggressor, etc.).

Masters v. Ontario (1994), 18 OR (3d) 551 (Div. Ct.) (at 368)

f.: ∏ was agent general in NY. He was accused of sexual harassment. An investigative report
found , in effect, that ∏ sexually harassed 7 women. ∏ resigned on basis of financial settlement
rather than agreeing to be reassigned. ∏ then applied for review of investigator’s report alleging
breaches of natural justice which included: 45 witnesses interviewed without ∏ or counsel
present; ∏ refused access to list of questions asked, copies of notes, transcripts or tapes of
interviews; while ∏ was allowed to interview witnesses himself, few agreed to meet with him.

i.: Was  not afforded procedural fairness when he was refused the investigator’s report, refused
access to questions asked, copies of notes, transcripts or tapes of interviews of witnesses?

r.: In deciding whether disclosure of findings is required in investigation of accusations of sexual

harassment at behest of Premier, must look at nature of ∏ employment, the nature of the decision
(broad policy or individualistic), nature of investigatory procedures relied on (e.g. directives), ∏
ability to make representations.

a.: For ∆. ∏ received sufficient procedural safeguards. Adams J.:  was an office holder at
pleasure (Premier was not acting pursuant to statute but was exercising prerogative in his
consideration of revoking an appointment) and asking for disclosure of investigative documents
(two hits against disclosure). On other hand, neither decision-making nor investigation focused
on “broad grounds of public policy”, but were rather individualistic (did ∏ sexually harass
women and what to do about it). Premier decided to apply investigatory procedures outlined in
Workplace Discrimination and Harassment Prevention Directive – content of duty of fairness
should be derived from the Directive. There was no requirement that government use coercive
power to force witnesses to subject themselves to ∏’s counsel’s questioning. No hearing was
required by statute or “otherwise by law”. ∏ had right to respond to report. Disclosure of
substance of accusations was sufficient. Therefore allegations against ∏ were not adjudicated.
Investigatory process deployed to inquire into his alleged conduct did not afford ∏ all safeguards
of a trial.

Khan v. University of Ottawa (1997), 35 OR (3d) 535 (CA) (at 372)

f.: ∏ (A) appealed decision of Div. Ct. dismissing judicial review application of Senate and
Faculty of Law decisions to give her a failing grade. 3 exam booklets were evaluated and
existence of 4th booklet, which was not evaluated, was issue before the university committees. ∏
received no notice of the Faculty of Law Exam Committee meeting and was not given an
opportunity to appear before it. ∏ appealed Law Faculty’s decision dismissing her appeal, in
writing, to Senate Committee but did not appear before it.

i.: What procedures were required under duty of fairness in this case?

26
r.: A university law student, whose credibility is in issue concerning whether she wrote a 4th exam
booklet, is entitled to an oral hearing.

a.: For ∏. Laskin JA.: A university student threatened with loss of academic year by a failing
grade is entitled to high standard of justice due to the serious effect of a failed year, both
academically and professionally, on the student. It was conceded that if ∏ 4th booklet was not
graded, this would amount to a “significant error or injustice”, justifying a review of the grade ∏
received under paras. 12.03(a) and (b) of the Faculty of Law Regulations. The question before the
committee was therefore whether they believed ∏ had written the 4th booklet (since no other
evidence was present). Because ∏ appeal turned on her credibility and because of the serious
consequences to her of an adverse finding, the duty of fairness required an oral hearing in this
case (Singh), notwithstanding that ∏ was not charged with any misconduct.
Finlayson JA. (dissent): This case is distinguishable from Singh because the gravity of the rights
in issue are less and no Charter rights are in issue. The ∏ has not been refused entrance into the
legal profession (Kane). ∏ attempt to establish fact that she wrote a 4th booklet would not
necessarily be determinative on whether the issue before the Committee, that being whether the
grading of an exam had been subject to error or injustice, would resolve in her favour. Committee
was aware of the poor quality of work in first 3 booklets and “more of the same wouldn’t have
been beneficial.” Therefore her credibility is not determinative. As was practice of committee, ∏
was given opportunity to provide full and detailed written account of reasons why she deserved
relief. ∏ did not show that information she provided in written brief was not complete.

3.3. Disclosure and Official Notice

“Disclosure” is the disclosure to parties of information that the agency has about the decision to
be made. Not just a question of how much and when information is disclosed. Access to
Information Statutes; Crown/Executive Privilege; C/L Evidential Privileges

3.3.1. Access to Agency Information

Re Napoli and Workers’ Compensation Board (1981), 126 DLR (3d) 179 (BCCA) (at 411)
f.: Napoli was injured and was advised that his compensable disability was 5% of total disability.
He was awarded a pension of $33.56/mo. which was increased to $50/mo. Napoli appealed to
board of review. Prior to the hearing his counsel was provided with a 4-page summary of his file.
The board heard the appeal and recommended to the WCB that Napoli’s appeal be denied. Napoli
received leave to appeal the board decision to the commissioners of the WCB. Bouck J held that
rules of natural justice applied to proceedings before boards of review and the commissioners and
that files should be disclosed to workers. The summaries of the files did not satisfy these
requirements. He found s. 10 of BC Evidence Act gave a worker the right of disclosure, arguing
WCB was “adverse in interest” to the worker in proceedings. WCB appealed.

i.: Was the Judge right in finding that the boards of review and the commissioners of the WCB
breached the rules of natural justice in failing to give Napoli a full opportunity to peruse his file
when he appealed from the original decision of a disability awards officer or commissioner?

r.: Rules of natural justice apply to proceedings before the WCB and Commissioners and require
full disclosure of the contents of a worker’s file (medical files included).

27
a.: For Napoli. Appeal dismissed. Nemetz CJBC.: A "high standard of justice" was required
because of the large impact these decisions had on the future lives of the injured workers. The
rules of natural justice clearly included a duty of disclosure. Summaries of the files were not
adequate compliance with this duty because they afforded no opportunity to challenge the
statements and opinions contained in them. The argument that the reports to the Board by experts
would not be frank if they were to be disclosed was rejected. This reasoning did not conform to
the tenets of natural justice and ignored the contrary view that the reports would be prepared with
greater care and diligence.

3.3.2. Identity of Sources of Information

Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989), 36 Admin.
LR 261 (FCA) (at 416)
f.: ∏ was a prisoner at Kent Institution (maximum security). He was advised that he was
suspected in involvement in extortion of money and personal property from inmates and from
members of the community, threats of violence to other persons and the importation of drugs.
These accusations were based on information received, but more detail was not provided in the
notice on the ground that it would jeopardize the safety of the victims of ∏ actions. Warden
intended to seek ∏ transfer to Saskatchewan Penitentiary (high maximum security). ∏ applied
to FCTD for order quash decision of ∆ to transfer him, and succeeded. Certiorari was granted on
ground that notice given to prisoner was insufficient to satisfy requirements of procedural
fairness, in that it was too vague to enable ∏ to respond to allegations. ∆ appealed.

i.: Does procedural fairness (ability to respond) require the disclosure of sources of information in
a notice given to a prisoner outlining allegations of wrongdoing (that would result in his/her
transfer to another penitentiary of higher security) when such disclosure would endanger the
informants?

r.: In circumstances where application of rules of procedural fairness would endanger the lives of
informants, the obligation of those rules to give more detailed notice do not apply. It is sufficient
to provide the ‘gist’ (or outline) of the accusations against an inmate.

a.: For ∆. Appeal allowed. Pratte JA.: By not providing the source of allegations against a
prisoner that will be considered in an order to transfer that prisoner, the prisoner’s opportunity to
answer the allegation is hindered, which violates the principles of fundamental justice under s. 7
of the Charter. However, the wide discretion to transfer prisoners granted by the Penitentiary Act
is justified under s. 1.
Marceau JA.: Must give consideration of nature of Charter liberty interest at stake in this case.
If liberty interest is not as ‘serious’, then stringency of Charter requirements on administrators in
terms of demands of fundamental judgment diminish. A prisoner transfer is not a ‘serious’ liberty
interest, therefore the limited information provided to  was sufficient.
Desjardins JA. (dissent): there may be a situation where the danger of disclosure to an inmate is
so great that C/L and Charter fairness cannot be upheld. If this occurs, there should be some
independent corroboration of the evidence/facts provided by the informants, which can be
presented to a court in camera, to uphold the limits on disclosure.

28
Gough v. Canada (National Parole Board) (1990), 45 Admin. LR 304 (FC TD) (at 424)
f.: ∏ was on parole (least restrictive form) for 5 ½ hears. Complaints were made to Correctional
Services Office alleging sexual assault and other forms of coercion as well as drug use against ∏.
∆ suspended and ultimately revoked his parole due to these allegations. ∆ relied on ss. 17(5) of
the Parole Regulations (allows non-disclosure in parole hearing where disclosure would threaten
safety of individuals or prejudice an on-going investigation) to refuse disclosure of information at
∏ post-suspension hearing, and never revealed the details of dates, places of alleged incidents
and the names of alleged victims. ∏ applied to have revocation quashed for violating s. 7 of
Charter. ∆ responded that ∏ had adequate information to meet allegations because he already
knew of the incidents. Application allowed to extent that ∆ was given option of quashing order or
requiring submission of relevant information to court for in camera hearing where ∏ counsel
would be given opportunity to argue that non-disclosure was not justified. ∆ chose latter and
appealed order to FCA. FCA allowed appeal on basis that ss. 24(1) of Charter did not extend to
authorize court to compel production of information for purposes of such an in camera hearing.
Matter referred back to FCTD for resumption of the hearing.

i.: Was s. 7 breached by the Board's non-disclosure pursuant to Parole Regulations, subsection
17(5), and if so, whether ss. 17(5) was justified under the circumstances or s. 1.

r.: A parolee on the least restrictive form of parole is entitled, under s. 7 principles of
fundamental justice, to disclosure of information relied upon in a decision to revoke his/her
parole (not simply the ‘gist’ of the allegations), unless there is ample evidence justifying the
restriction under s. 1 that disclosure would reveal the identity of the informers or that there was a
probability that their safety would be threatened, or that the parole system would be undermined.
The receipt of information in confidence is no justification for restricting fundamental justice.

a.: For ∏. Appeal denied. Reed J.: The principles of fundamental justice entitle an individual to
know the case against him in a decision-making process that leads to a loss of liberty. The ∏ was
entitled to sufficient detail respecting the allegations against him to enable him to respond
intelligently. The guarantees provided by s. 7 of Charter vary with the circumstances. ∏ liberty
was conditional, and subject to revocation without all the procedural guarantees which pertain in
a court of law; however his position was as close to that of an individual who has unconditional
liberty as it could be within the correctional system. ∆ carries burden of justifying Regulation ss.
17(5) limits “prescribed by law” under s. 1 of Charter. There was no evidence of an ongoing
police investigation which would be prejudiced by the disclosure of the information. There was
no compelling evidence that disclosure would reveal the identity of the informers or that their
safety was threatened or that the parole system would be undermined.

3.3.3. Commercially Sensitive Information

Magnasonic Canada v. Anti-Dumping Tribunal, [1972] FC 1239 (CA) (at 434)
a.: Jackett CJ.: s. 29 of Anti-Dumping Act requires that when information of a confidential
character is tendered at a hearing, it is done so in camera. Other further steps to protect the
confidentiality of the information depends on the circumstances. These could include exclusion
of all competitors/rivals while evidence is taken, and then provide these parties with a report on
evidence taken with reference to confidential evidence under s. 28.

29
  Now have Canadian International Trade Tribunal Act, RSC 1985, c. 47 (4th Supp.) (at
435) which has more detailed provisions on disclosure. E.g. disclosure to an external
expert employed by tribunal for an assessment.

3.3.4. Staff Studies

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 FC 425 (CA)
(at 358)
 tribunals exercising economic regulatory function in public interest that do not affect
human rights in a way akin to criminal proceedings are entitled to benefit of confidential
communication with staff.

Toshiba Corporation v. Anti-Dumping Tribunal (1984), 8 Admin. LR 173 (FCA) (at 440) and
Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984), 8 Admin. LR 177
(FCA) (at 441)
 Both cases dismissed applications for disclosure of staff papers prepared for the
board/tribunal prior to hearing. However, if information in staff papers (made prior to a
hearing) is available to decision makers and is not brought forward in another form at
tribunal, principles of procedural fairness are breached.

Re League for Human Rights of B’Nai Brith and Commission of Inquiry on War Criminals
(1986), 28 DLR (4th) 264 (FCA)
 Allowed disclosure of a report of a ‘working group’ of specialists established by the
Commission, on the basis that such a report would clearly be relied upon and given
significant weight by the Commission in determining whether there were legal means to
bring suspected war criminals to justice in Canada.

3.3.5. Official Notice

“Official notice” is the extent and manner in which an agency may, in making its decisions, use
material that is not introduced in evidence.

SPPA (s. 16) – incorporates into rules of tribunal proceedings (a) the rules of judicial notice; (b)
allowance of tribunal to take notice of any generally recognized scientific or technical facts,
information or opinions within its scientific or specialized knowledge [expectation of panel
members to apply ‘wisdom’ of their expertise].

When is s. 16 (or its C/L equivalent) applicable?

Township of Innisfil v. Township of Vespra (at 449)
The OMB, in its decision, refers to evidence that came out in a previous hearing involving
different parties. OMB said this is justified as application of their general expertise under s. 16 of
SPPA.
 Ont. CA ruled that the notice taken was insubstantial.
 One Ont. Div. Ct. judge said that notice can be taken but OMB is obliged, by C/L
(particularly if constituency is diverse and likely do not have specialized knowledge), in
exercising such notice under s. 16 of SPPA to make parties aware that it would take such
notice and allow them to respond. (Mullan likes this).

30
  Immigration Act (at 451) s. 68(5) allows Refugee Division to take notice of facts,
information or opinion, other than facts that may be judicially noticed, in any proceedings
as long as it notifies the Minister and the person subject to the proceedings.

4. Institutional Decisions
4.1. Deciding Without Hearing
Some administrative agencies use discussion of cases by a full Board after a hearing has been
used as a means to maintain consistency. However, must determine whether, and if so, to what
extent, the duty of fairness precludes the members of an agency panel who heard a case from
discussing it with other members of the agency after the hearing has ended, but before they have
made their decision.

International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd.,

[1990] 1 SCR 282 (at 498)
f.: A three-member panel of Ont. Labour Relations Board decided that the appellant (∆) had
failed to bargain in good faith by not disclosing during negotiations for a collective agreement
that it planned to close a plant. In the course of deliberating over this decision, a meeting of the
full Board was held to discuss a draft of the reasons. No express statutory authority exists for this
practice. The meeting was conducted in accordance with the Board's longstanding and usual
practice. This practice required that discussion be limited to the policy implications of a draft
decision, that the facts be accepted as contained in the decision, that no vote or consensus be
taken, that no minutes be kept, and that no attendance be recorded. ∆ applied for judicial review
of the Board's decision on the ground that the rules of natural justice had been breached. The
application was granted by the Div. Ct. but was disallowed on appeal. ∆ appealed to SCC.

i.: Whether the two rules of natural justice had been breached: (a) that the adjudicator be
independent and unbiased, that he who decides must hear, and (b) the audi alteram partem rule,
the right to know the case to be met.

r.: The rules of natural justice: (a) independence/non-bias of adjudicator – is not tainted if
adjudicator who heard evidence speaks with others who did not hear evidence (non-hearers); such
an occurrence does not amount to ‘participation’ of the non-hearers in the decision, and any
influence non-hearers have on the adjudicator does not violate independence nor bias the
adjudicator as long as the discussions do not induce him/her to decide against his/her own
conscience or opinion. (b) audi alteram partem rule – is not violated if discussions with non-
hearers focus on policy or legal issues surrounding the case; but is violated if discussions focus
on factual issues surrounding the case, and any new evidence or grounds raised in discussions
with non-hearers are (i) not reported to the parties and (ii) are not given a chance to respond.

a.: For ∏. Appeal dismissed. Gonthier J.: Independent and unbiased adjudicator – Discussion
with a person who has not heard the evidence does not necessarily vitiate the resulting decision
because this discussion might "influence" the decision maker. The criteria for independence are
not absence of influence but rather the freedom to decide according to one's own conscience and
opinions. The holding of full board meetings does not impinge on the ability of panel members to
decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack
of independence.

31
Right to know the case to be met – A distinction must be drawn between discussions on factual
matters and discussions on legal or policy issues. On factual matters the parties must be given a
fair opportunity for correcting or contradicting any relevant statement prejudicial to their view.
The purpose of the policy discussions is not to determine which of the parties will eventually win
the case but rather to outline the various legal standards which may be adopted by the Board and
discuss their relative value. Since these issues involve the consideration of statutes, past decisions
and perceived social needs, the impact of a policy decision by the Board is, to a certain extent,
independent from the immediate interests of the parties even though it has an effect on the
outcome of the complaint. In this case, the policy decided upon was the very subject of the
hearing when the parties had full opportunity to deal with the matter and present diverging
proposals, which they did.
Sopinka J. (dissent): The content of the rules of natural justice now determined by reference to
(i) the circumstances of the case, (ii) the governing statutory provisions and (iii) the nature of the
matters to be determined.  It is no longer appropriate to conclude that failure to disclose policy to
be applied by a tribunal is not a denial of natural justice without examining all the circumstances
under which the tribunal operates. The full Board hearing deprived the appellant of a full
opportunity to present evidence and submissions and accordingly constituted a denial of natural
justice.  It could not be determined with certainty from the record that a policy which was
developed at the full Board hearing and was not disclosed to the parties was a factor in the
decision.  That this might very well have happened, however, was fatal to the Board's decision.
The goal of uniformity in the decisions of individual boards, while laudable, cannot be achieved
at the expense of the rules of natural justice.  The legislature, if it so chooses, can authorize the
full Board procedure.

Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 SCR 952 (at 523)
f.:  ∏ (R) was denied reimbursement for cost of medical supplies and appealed to ∆ (A). The
appeal was heard by two commissioners and the parties argued in writing.  After the hearing, a
draft decision favourable to the ∏ was signed by the commissioners and sent to the ∆ legal
counsel for verification and consultation in accordance with ∆ established practice.  As the legal
counsel was on vacation, it was the president of the ∆ who reviewed the draft.  He then sent the
two commissioners a memo in which he explained his contrary position.  After receipt of the
memo a commissioner requested the point of law raised at the hearing be submitted to the
"consensus table" machinery of the ∆. At that meeting, a majority of members expressed their
disagreement with the draft holding for the ∏ and, shortly afterwards, one of the commissioners
changed her mind and wrote an opinion unfavourable to the ∏. The commissioners were then
divided on the question and the matter was submitted to the president of the ∆.  The president
held against ∏ and appeal was dismissed.  ∏ challenged the ∆ decision on ground of breach of
natural justice and asked that the "first draft decision" be declared the ∆ true decision.  The
Superior Court held that the ∆ decision contravened the rules of natural justice and allowed the
action, but it refused to regard the first draft of the decision as the ∆ true decision. The CA upheld
the trial judgment. ∆ appealed.

i.: Does the consultation machinery of the ∆ violate the principles of natural justice? Did they
create a reasonable apprehension of bias?

32
r.: A consultation process by plenary meeting designed to promote adjudicative coherence may
be acceptable for an administrative tribunal, however it must not violate the rules of natural
justice – it must not impede the ability or freedom of the members of the tribunal to decide
according to their consciences and opinions, or create an appearance of bias in the minds of
litigants.

a.: For ∏. ∆ appeal dismissed. Gonthier J.: (1) Independent and Unbiased Decision-maker (was
not met) – The "consensus tables" held by the ∆, although optional in theory, are in practice
compulsory when the legal counsel determines that the proposed decision is contrary to previous
decisions (distinguishing feature from Consolidated-Bathurst). President, not only
commissioners, can call a consensus table meeting. Compulsory consultation creates an
appearance of a lack of independence and constraint on decision makers.  Plenary meetings of the
∆ are held so as to arrive at a consensus:  the members present vote by a show of hands,
attendance is taken and minutes are kept. These mechanisms may exert undue pressure on
decision makers and are not to be recommended. The fact that the president of the ∆ expressed
his opinion to the commissioners responsible for making the decision, inviting them to reconsider
it, and then became a decision maker is not consistent with rules of natural justice as it is likely to
create a reasonable apprehension of bias in an informed observer.
(2) Right to know the case to be met (was satisfied) – The question on which the ∆ had to rule
was a point of law. There is nothing to indicate that new arguments of law were raised at the
"consensus table" or that the president considered new points at the decision-making stage.

Commentary by Mullan on Consolidated-Bathurst and Tremblay (at 535)

 Gonthier J.’s distinguishing of the facts in Consolidated-Bathurst from Tremblay
(determining whether there has been illegitimate compulsion as opposed to permissible
pressure) seem related solely to form rather than substance, since in reality the Labour
Relations Board in Consolidated-Bathurst could have been just as effective as compelling
members to reach certain decisions.
 Very difficult to police the rules of mass adjudication tribunals. It will only be matters of
happenstance when a party will know whether there has been a consultation in a particular
case (in Consolidated-Bathurst, the employer’s lawyer was at the board offices
eavesdropping.) Then there is difficulty in obtaining evidence in how the consultation
actually proceeded.
 Why not have compulsion on issues of law and policy? This question is not addressed.
Such compulsion in these limited contexts would promote consistency, especially in high
volume tribunals.

Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221 (at 539)
f.:  A predecessor to the Union failed to list ∏ as an employer in certification proceedings in
1972. The Union filed a grievance alleging that ∏ had breached the collective
agreement. ∏argued that it was not subject to the collective agreement because the predecessor
to the Union had abandoned its bargaining rights when it failed to include ∏’s name as an
employer in the earlier proceedings.  A three-member panel of the Board heard the grievance.  A
first draft of the panel's decision would have dismissed the grievance.  However, after a full
Board meeting discussed the draft, the panel upheld the grievance.  Without asking for
reconsideration of the decision, ∏ applied for judicial review, alleging that the change between

33
the draft and the final decision was of a factual nature as opposed to a legal or policy change.  ∏
alleged that there was a breach of the rules of natural justice and the rules governing institutional
consultations. ∏ was not permitted to examine members of the Board. ∏’s application was
dismissed, and the Ont. CA affirmed the decision. ∏ appealed.

i.: Did the full Board improperly interfere with the decision of the three-member panel?

r.: A change in reasons for a decision by a panel is not evidence enough that full Board
consultations involved questions of fact and not questions of law or policy. Deliberative secrecy
is essential to safeguard the independence of administrative adjudicators; it favours
administrative consistency by granting protection to consultative processes between adjudicators
and members who have not heard the case (within rules set out in Consolidated-Bathurst).

a.: For ∆. ∏ appeal dismissed. Lebel J.: A change in reasons for a decision is not evidence that
the full Board discussed questions of fact and not questions of law or policy (which, on its face,
was shown in evidence). Without further evidence, must presume administrative regularity. ∏
cannot examine panel members because such a practice would cause a chilling effect on
institutional consultations, and the removal of a means of achieving consistency in decisions.
Binnie J. (dissent): A close review of draft and final decision indicates that evidence was re-
weighed (question of fact) at full Board meeting. Strength of evidence necessary to displace
presumption of administrative regularity depends on nature of the case. Given the difficulty in
this case for ∏ to gather evidence, ∏ has discharged evidentiary onus to displace the
presumption of regularity.

Payne v. Ontario (HRC) (2000), 192 DLR (4th) 315 (Ont. CA) (at 542)
f.: ∏ (A) was an African-Canadian woman who, during organized opposition to a theatrical
production, made an anti-Semitic remark on TV.  She apologized.  Her employer demoted her
and subsequently terminated her employment.  She filed a complaint with the ∆ (R).  After
investigations, the ∆ initially decided to refer the complaint to a board of inquiry, but then
subsequently decided not to refer the complaint without given reasons to ∏. ∏ applied for
judicial review. Her lawyer served a notice of examination on the ∆ requiring the Registrar to
answer questions and produce all documents related to this case, including the contents of all files
and communications between ∆ staff and its members who considered ∏’s complaint. ∏ filed
affidavit of former ∆ member named Wharton, who was present at initial meeting concerning
∏’s complaint. He said that the ∆ considered strategic factors (facts) to decide whether to refer a
complaint to a board of inquiry (fear of appearing to support anti-Semitic remark) and these
factors had nothing to do with the merits of the complaint. ∆ applied to strike from the record
∏’s affidavit material. The court struck out extensive portions of ∏’s affidavit. Court allowed ∏
to examine the Registrar only about the initial meeting and to obtain documents provided at that
meeting.  ∏ appealed court order striking out portions of affidavit and limiting examination.

i.: Is ∏ entitled to full disclosure and production of all facts, arguments and consideration that
were presented to the ∆ when it considered her case?

r.: In HR context, a complainant is entitled to a complete record of the HRC’s proceedings. In

claiming a right to examination in judicial review proceedings of a HRC decision, a complainant

34
need not prove any facts as a precondition, but must limit the scope of examination to a ground
justifying judicial review. The examination would not be allowed if it was used for an improper
purpose or if the application for judicial review was an abuse of process. If a HRC member who
was privy to the decision-making process was examined, the right to conduct the examination had
to be balanced against the principle of deliberative secrecy. Complainant must prove that a
relevant legal right may have been infringed; examinations based on conjecture or mere
speculation are not allowed. A HRC that deliberates in the presence of non-members (staff),
rather than in private, are more exposed to judicial review.

a.: For ∏. Appeal allowed in part. The order that struck out portions of ∏ affidavit was
upheld. Sharpe JA.: Only legitimate factor to be considered by ∆ in exercise of its discretion is
whether there is any merit in the complaint (cannot consider cost or “strategic factors”). If ∆
proceeds on different recommendation (than in Report) or base its decision on factors undisclosed
to ∏, there would be no opportunity to respond and fairness would be infringed. ∏ has statutory
right to reasons for ∆ decision (ground for review). 3 purposes for deliberative secrecy are: (1)
practical concern that if no limits imposed, tribunal members would be exposed to unduly
burdensome examinations; (2) need for finality and need for decisions to rest on reasons given;
(3) need to protect process of debate, discussion, compromise inherent in collegial decision
making. Deliberative secrecy is not absolute and must yield to certain overarching principles,
such as an allegation to the right to natural justice (it is not required to produce evidence to justify
examination of decision maker). The ∆ chose to conduct its deliberations with the assistance of
non-∆ members (staff).  Its deliberations were therefore more exposed to review than if they were
conducted privately. There was evidence that the ∆ did not comply with the principles of
fairness.  The ∆ record appeared to be incomplete.
Abella JA. (dissent): Interaction between staff and ∆ commissioners during deliberations does
not automatically pollute the final decision (Consolidated-Bathurst). There is no evidence that
any staff made inappropriate comments, made comments not based on information contained in
Reports, or made comments that unduly influenced or interfered with ∆ ability to make up it’s
own mind based on relevant and appropriate factors.

5. Bias and Lack of Independence

5.1. Reasonable Apprehension of Bias
Test for bias – what would an informed person, viewing the matter realistically and practically –
and having thought the matter through – conclude. (Committee for Justice and Liberty at 582)

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57)
f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992
was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December
1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from
s. 9 requirement to apply for permanent residence outside Canada on humanitarian and
compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from
lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π
was making progress and that deportation would likely result in relapse, and that both she and her
children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected
request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in

35
decision by Caden – at 59). 27 May 94 Π served deportation order for June 17. Order stayed
pending appeal.

a.: L’Heureux-Dube J.: Applying the 5 factors for determining the content of procedural
fairness to bias, a reasonable apprehension of bias on the part of anyone who played a significant
role in the actual decision would lead to a quashing of the relevant decision. In this case, a
reasonable apprehension of bias in the reasons is present. Rather than looking at the evidence,
Lorenz drew conclusions on the fact that Π was a single mother of many children and was
psychologically ill (and therefore would be a burden to Canada), ignoring the evidence of Π
doctor, who suggested that with treatment Π would be a productive member of society.

5.1.1 Pecuniary Bias

Energy Probe v. Canada (Atomic Energy Control Board) (1984), 15 DLR (4th) 48 FCA; aff’g
(1984) 8 DLR (4th) 735 (FCTD) (at 575)

f.: ∆ proposed to renew operating license for nuclear generating station. ∏ objected to
participation of Olsen on ∆ board, since he was president of a company that supplied cables to
nuclear power plants and was a member of organizations that supported use of nuclear power. ∆
refused this objection and renewed license. ∏ appealed.

i.: Does a possible pecuniary interest in the outcome of a board decision raise a reasonable
apprehension of bias that should automatically disqualify a participating member of the board?

r.: A claim of bias can be advanced at administrative tribunals, but the test for bias will be more
flexible in the administrative tribunal setting.

a.: For ∆. ∏ appeal dismissed. Reed J.: The possibility that Olsen’s company would or would not
get future K based on the outcome of the ∆ board’s decision was too remote to raise an
apprehension of bias, particularly given the fact that cable K are awarded on a competitive basis.

5.1.2. Acting Outside Statutory Authority

Brosseau v. Alberta (Securities Commission), [1989] 1 SCR 301 (at 593)
f.: Notice of hearing issued against ∏ alleging that false/misleading statements were contained in
company (that ∏ worked for) prospectus filed with ∆. ∏ alleged chair of ∆ was disqualified from
sitting in adjudicative capacity because, at request of senior civil servant, chair had instructed
commission staff to review their files and information in possession of police about the company.
Chair also received the resulting report of commission staff; therefore ∏ argued there was a
reasonable apprehension of bias because chair would be acting as both investigator and
adjudicator.

i.: Did chair of ∆, as acting as both investigator and adjudicator create a reasonable apprehension
of bias?

r.: The fact that a chairman acts as both an investigator and adjudicator for a securities
commission is not in itself sufficient to give rise to a reasonable apprehension of bias. He must
act outside statutory authority. In the case of securities commissions given broad investigative

36
and adjudicative powers by statute, the chairman, as CEO, has implied authority to (1) order an
informal investigation not expressly dealt with by statute; (2) receive information from an ADM
or the RCMP, to pass this to the Director of the Commission, to require the Director to verify
allegations/complaints, and receive a report of any review made by Director. In other words,
statute authorized an investigative and adjudicative role for chairman. Absent a constitutional
objection, statutory empowered situations that would normally give rise to bias are allowable.

a.: For ∆. ∏ appeal dismissed. L’Heureux-Dube J.: One exception to “nemo judex in cause
sua debet esse” (no one ought to be a judge in his own case) is where the overlap of functions is
authorized by statute. However, because of the broad powers conferred, ∆ has implied authority
to conduct a more informal internal review of the documents it has on file and to keep itself
informed of the course of an RCMP investigation. To hold otherwise would make it mandatory
for ∆ to resort to s. 28 investigation (full-out investigation) for mere administrative purposes,
which would paralyze ∆. Other consideration includes fact that ∆ is specialized, integrated body
that, by its nature (being the only securities commission), it will have repeated dealings, be it
investigative or adjudicative, with a given party. ∆ also has protective role, which gives special
character to such commissions that must be recognized when assessing their functions.

E.A. Manning Ltd. v. Ontario Securities Commission (1995), 125 DLR (4th) 305 (Ont. CA) (at
602), aff’g. (1994), 18 OR (3d) 97 (Div. Ct.).
f.: ∆ released Policy 1.10 indicating it considered actions of 10 securities dealers/salespersons in
dealing penny stocks to amount to unfair sales practices. ∆ issued two notices of hearing against
∏ (and its principals and various employees), on the same issues as that outlined in Policy 1.10,
to consider whether ∏ registrations under Securities Act should be cancelled. In the interim, Ont.
Ct. of Justice (affirmed by Ont. CA) declared policy statement was without statutory authority
and in so doing stated that the ∆ had prejudged by that policy statement that certain dealers
(including ∏) had been guilty of various abuses (Ainsley Financial Corp. v. Ontario Securities
Commission). ∆ appealed decision, and issued press release reiterating concerns addressed in
policy statement. Chair of  also gave press interview to same effect. ∏ applied for a prohibition
order to prevent ∆ from proceeding with the two hearings against ∏. Div. Ct. held that
Commissioners appointed before the fall of 1993 and the Chair of the ∆ should be disqualified
from sitting on the hearings against ∏ (but members appointed after that date can sit) since
Policy 1.10 amounts to pre-judgment of ∏, which is beyond ∆ statutory power. ∏ appealed.

i.: Whether the new Commissioners should be disqualified: (1) by the doctrine of corporate taint;
(2) by reason of the media comments of the Chair; or (3) by reason of the ∆ defence of the
Ainsley action.

r.: Given that securities commissions are expert tribunals, and that members may have
repeated dealings with the same parties in carrying out their statutory duties, it must be presumed,
in the absence of any evidence to the contrary, that members will act fairly and impartially in
discharging their adjudicative responsibilities. Therefore there is not authority for proposition of
bias by corporate taint.
If statements by a regulator relate to the very matters that he or she is considering, that, in
itself, is not a basis for concluding that the regulator has prejudged the matter. Even if it could be

37
said that the statements of the Chair exhibited some bias against the ∏, that, in itself, would not
disqualify other Commissioners from conducting the hearings.

a.: For ∆. ∏ appeal dismissed. Cubin CJO.: The ∆ is the investigator, the prosecutor, and the
judge. But for statutory authority, the overlapping of these functions would be contrary to the
principle of fairness. However, where authorized by statute, the overlapping of these functions in
itself does not give rise to a reasonable apprehension of bias. New Commissioners can not be
disqualified by reason of the comments of the Chair.

5.1.3. Institutional Bias Due to Internal Operational Choices – Court Intervention on C/L
basis
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919 (at 612)
f.: ∆ revoked ∏ liquor permits for violation of statute. ∏ sought declaration that various
provisions of statute were invalid in terms of s. 23 of Quebec Charter, which require a tribunal,
acting in a judicial or quasi-judicial fashion, be both “independent and impartial.” ∏ successful
at trial and on appeal. ∆ appealed to SCC.

i.: Did the operational structure of the ∆ (specifically the multiple role of the ∆ lawyers) give rise
to a reasonable apprehension of bias, contrary to s. 23 of the Quebec Charter, which requires
judicial or quasi-judicial tribunals to be both “independent and impartial”?

r.: Having multiple functions in a single administrative agency is not necessarily problematic.
Having possibility of lawyers functioning as prosecutor and adjudicator raises a reasonable
apprehension of bias. Similarly, having the possibility that a particular director could, following
an investigation, decide to hold a hearing and then participate in the adjudication process would
cause an informed person to have a reasonable apprehension of bias.

a.: ∏ awarded writ of evocation quashing revocation of its license. Gonthier J.: (1) Although
flexibility must be shown toward administrative tribunals when it comes to impartiality, a
detailed review of the ∆ structure and multiple functions raises a reasonable apprehension of bias
on an institutional level. Although the statute does not define the duties of jurists, the ∆ annual
report and the description of their jobs show that they review files in order to advise the ∆ on the
action to be taken, prepare files, draft notices of summons, present arguments to the directors and
draft opinions.  This leaves open the possibility of the same jurist performing these various
functions in the same matter. The functions of prosecutor and adjudicator cannot be exercised
together in this manner. Such a lack of separation of functions in a lawyer raises a reasonable
apprehension of bias. (2) While the fact that the ∆, as an institution, participates in the process of
investigation, summoning and adjudication is not in itself problematic, the possibility that a
director could, following the investigation, decide to hold a hearing and could then participate in
the adjudication process would cause an informed person to have a reasonable apprehension of
bias.

c.: Technically, the appeal should be allowed. The problem of institutional bias was not a
statutory one but one caused by the way the ∆ operated; this could be addressed by internal
changes as directed by the court. Therefore the claim that provisions of statute were invalid in
terms of s. 23 of Quebec Charter are dismissed.

38
5.1.4. Institutional Bias Due to Statute – Court Intervention on a Constitutional Basis
MacBain v. Canada (Human Rights Commission) (1985), 22 DLR (4th) 119 (FCA) (at 619)
f.: If a complaint was made to ∆, it could appoint an official to investigate and report. ∆ could
adopt report if it was satisfied complaint has been “substantiated” (s. 26(3) of the CHRA). Any
time after complaint filed, ∆ could appoint a tribunal from a panel of prospective members
“established and maintained by GIC” (s. 39). Tribunal was to hold hearing and if it finds
complaint was “substantiated” it had power to make remedial orders. Potapczyk filed complaint
that ∏ had discriminated against her on basis of sex during her employment. ∆ appointed staff
member to investigate and after her report, ∆ decided complaint was substantiated and appointed
tribunal. Hearing proceeded and complaint found to be substantiated. ∏ sought declaration that
legislation violated Charter and BOR because arrangements under s. 39 (∆ investigates
complaint, finds “substantiation” of complaint, and then selects judges to hear the case in which
∆ will argue that the complaint was “substantiated”) created an apprehension of bias. ∏ failed at
trial but appealed.

i.: Does the statute based requirement of the ∆ to “substantiate” the complaint before striking a
tribunal (which will also “substantiate” the complaint) give rise to an apprehension of bias under
s. 2(e) of the BOR? Does the statute derived power of the ∆ to appoint the adjudicators (tribunal)
in a case where it will be prosecutor give rise to an apprehension of bias under s. 2(e) of the
BOR?

r.: Requiring the HR commission, by statute, to “prove” a complaint before selecting the
members of a tribunal who will consider whether the complaint was “proven” raises an
apprehension of bias. Empowering a commission, by statute, to select the members of a decision-
making tribunal which will hear a case in which the commission itself will be the prosecutor
raises an apprehension of bias; both are contrary to s. 2(e) of the BOR (“determination” of
“obligations” within “principles of fundamental justice”).

a.: For ∏. Appeal allowed. Heald J.: S. 39 arrangements created a reasonable apprehension of
bias in violation of s. 2(e) of the BOR (principles of fundamental justice).

5.1.5. Attitudinal Bias

Paine v. University of Toronto, (1981), 131 DLR (3d) 325 (Ont. CA); rev’g. (1980), 115 DLR
(3d) 461 (Ont. Div. Ct.) (at 626)
f.:  The ∏, a university professor, was denied tenure on the recommendation of a tenure
committee which included a faculty member who had submitted a negative assessment and
recommended against tenure before being appointed to the committee. The recommendation was
affirmed by the appeal committee and the president did not award tenure. The applicant sought
judicial review, claiming there had been procedural unfairness (apprehension of bias). ∏ won at
Div. Ct. ∆ appealed.

i.: Was ∏ denied procedural fairness when the chairman of the Tenure Committee appointed to
the committee a tenured faculty member whom the chairman knew had submitted a negative
assessment (recommending denial of tenure) of the ∏?

39
r.: In order to justify judicial review of a decision by a Tenure Committee on which sat a member
who submitted an unfavourable assessment of a candidate, the candidate must demonstrate
“manifest unfairness” or “flagrant violations of procedural fairness.” The Court should exercise
restraint and be slow to intervene in university affairs where the university provides adequate
internal appeal mechanisms.

a.: For ∆. Appeal allowed. AWeatherston JA. and Mackinnon ACJO.: The tenure process is
inherently biased since all committee members know candidate – it is a form of “peer review”.
The presence of one member on the multi-member Tenure Committee who submitted an
unfavourable assessment of the candidate was not such manifest unfairness as to call for
discretionary judicial intervention by judicial review.

Great Atlantic & Pacific Co. of Canada v. Ontario (HRC) (1993), 12 Admin LR (2d) 267 (Ont.
Div. Ct.) (at 628)
f.: Constance Backhouse was appointed as the Board of Inquiry in an investigation of ∏ for
violations of the CHRA (systemic sex discrimination). At the time of her appointment,
Backhouse (an associate law professor at Western) was a party to a sex discrimination complaint,
filed in 1987 with the ∆ by 120 people, against Osgoode Hall Law School and was part of a 12
member steering committee overseeing the complaint. Since 1989, the complaint was
“outstanding” with the ∆. Backhouse withdrew her name from the complaint and resigned from
the steering committee in 1993.

i.: Does the fact that Backhouse was both an appointed Board for the ∆ as well as a complainant
in an outstanding proceeding before the ∆ create a reasonable apprehension of bias?

r.: A reasonable apprehension of bias arises when an individual who is an appointed adjudicator
for a Commission becomes a personal party to a complaint pending in the same Commission.

a.: For ∏. Application to quash Board proceedings granted. The Court: Simple justice
requires a high degree of neutrality. That would not be obtained were Backhouse to continue as
Board since she descended personally, as a party, into the very arena over which she was
appointed to preside in relation to the very same issues she has to decide. Therefore there is a
reasonable apprehension of bias.

Large v. Stratford (City) (1992), 9 OR (3d) 104 (Div. Ct.) (at 630)
f.: ∆ (A) argues board chair (a professor) was biased as evidenced by his public statements made
after he released his decision in this case but before he dealt with compensation. Speaking as
president of the Canadian Association of University Teachers, he said that retirement should be
flexible and not mandatory, that it should be negotiated and that governments should be lobbied
to abolish mandatory retirement. He also said “Human rights laws which recognize BFORs are
the appropriate way to deal with those few situations where it [is] impractical to deal with each
man or woman individually.”

i.: Did the chair’s public statements (as president of CAUT) create a reasonable apprehension of
bias in the proceedings?

40
r.: A Board chair may take a public position on a public issue related to the nature of the Board so
long as it is not an issue immediately before the Board.

a.: ∆ action dismissed. Chair’s comment do not raise apprehension of bias. Archie Campbell
J.: Professor took a public position on a public issue (mandatory retirement), which was never in
issue before him in this case, since parties agreed that mandatory retirement age of 60 was prima
facie discriminatory. HR boards are drawn from pool of experts. To exclude everyone who had
an opinion on HR would exclude those best qualified to adjudicate this area of public policy
fairly and knowledgeably.

5.1.6. Variations in Standards

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170 (at 633)
f.:  ∆ approved a proposed land development in Old St. Boniface, and adopted the
recommendations of various committees that the land in question be rezoned to be sold to a
developer. Prior to public hearings on the application for rezoning submitted by the developer, a
municipal councillor had been personally involved in the planning of the proposed development
and had appeared as advocate in support of the application at in camera private meetings of the
Finance Committee. At the public meetings, he did not disclose his earlier involvement with the
application. Before the re-zoning by-law was passed, the ∏ attacked the process by a motion
filed in the Court of Queen's Bench. The motions judge quashed the decision and prohibited the
passing of the rezoning by-law. The ∆’s appeal to the Court of Appeal was allowed. ∏ appealed
to SCC.

i.: Whether the municipal councillor was disqualified by reason of bias from participating in the
City Council proceedings to decide on the rezoning of the land in Old St. Boniface.

r.: Flexible approach based on context now taken when applying test for disqualifying bias. In
context of Municipal Councils, it is not appropriate to apply test of reasonable apprehension of
pre-judgment with full vigour as Legislature could not have intended “free from bias” rule would
apply equally to members of City Council (where a degree of prejudgment is inherent) as it does
to a more “judicial” tribunal. The party alleging bias must establish that any representations at
variance with the adopted view would be futile (improbability of persuasion). Statements by
individual members of Council, while they may give rise to an appearance of bias, will not satisfy
the test unless the court concludes that they are the expression of a final opinion on the matter. If
councillor has a private interest in a matter, that person is disqualified if the interest is so related
to the exercise of public duty that a reasonably well-informed person would conclude that it
might influence the exercise of that duty.

a.: For ∆. ∏ appeal dismissed. Sopinka J.: The applicable test is that objectors or supporters be
heard by members of Council who are capable of persuasion (consistent with role of municipal
councilor). The party alleging disqualifying prejudgment must establish that any representations
at variance with the adopted view would be futile. The councillor whose impartiality was in
question had no personal interest in the development, either pecuniary or by reason of a
relationship with the developer; no indication that he is incapable of persuasion.

41
Save Richmond Farmland Society v. Richmond (Township), [1990] 3 SCR 1213 (at 638)
f.: A by-law was introduced to turn agricultural lands into residential developments. An alderman
was reported to have stated publicly that he would not change his mind regardless of what was
said at the public hearings. There was other evidence that he had also stated that he would listen
attentively to the proceedings. In a subsequent interview he is stated to have said that he favoured
the rezoning of the land and that it would take something significant to change his mind.  During
the hearing, objections were raised to the alderman's continued participation on the ground that
he had predetermined the issue. The alderman participated in the vote on the by-law, which
passed by a five-to-four margin.  The ∏ appeal to the BCCA was dismissed. ∏ appealed to
SCC.

i.: Whether the alderman was disqualified by reason of bias due to some of his public statements
which indicated he would not change his mind no matter what he heard at a public hearing.

r.: A member of a municipal council is not disqualified by reason of his bias unless he has
prejudged the matter to be decided to the extent that he is no longer capable of being persuaded
(Old St. Boniface). The relevant test, therefore, is whether the alderman in fact had a closed
mind.  

a.: For ∆. ∏ appeal dismissed. Sopinka J.: The alderman had not reached a final opinion which
could not have been dislodged, and, accordingly, he was not disqualified by bias.
La Forest J.: In this case, the rezoning was initiated by Council and driven by policy. The
standard of fairness mandated by s. 956 placed on Council members little more than the
obligation of ensuring that due notice was given to those who stood to be affected, as well as a
reasonable opportunity to express their views.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),

[1992] 1 SCR 623 (at 642)
f.: ∆ (R), whose members are appointed by Cabinet subject only to the qualification that they not
be employed by or have an interest in a public utility, regulates ∏ (A). One commissioner, a
former consumers' advocate, made several strong statements which were reported in the press
against ∏’s executive pay policies before a public hearing was held by the ∆ into ∏’s costs.
When the hearing commenced, ∏ objected to this commissioner's participation on the panel
because of an apprehension of bias.  The ∆ found that it had no jurisdiction to rule on its own
members and decided that the panel would continue as constituted.  A number of public
statements relating to the issue before the ∆ were made by this commissioner during the hearing
and before the ∆ released its decision disallowed some of ∏’s costs. ∏ appealed both the order
of the ∆ and the ∆’s decision to proceed with the panel as constituted to the CA. The CA found
that the ∆ had complete jurisdiction to determine its own procedures and all questions of fact and
law and that it declined to exercise its jurisdiction when it refused to remove the commissioner
from the panel.  Although the court concluded that there was a reasonable apprehension of bias, it
held that the ∆’s decision was merely voidable and that, given that the commissioner's mind was
not closed to argument, the ∆’s order was valid. ∏ appealed to SCC.

42
i.: (1) The extent to which an administrative board member may comment on matters before the
board and, (2) the result which should be obtained if a decision of a board is made in
circumstances where a reasonable apprehension of bias is found.
r.: The test to ensure fairness is whether a reasonably informed bystander would perceive bias on
the part of an adjudicator. Those tribunals that are primarily adjudicative will be expected to
comply with the standard applicable to courts: there must be no reasonable apprehension of bias
with regard to their decision.  However, those with popularly elected members have a lower
standard: a reasonable apprehension of bias occurs if a board member pre-judges the matter to
such an extent that any representations to the contrary would be futile.  Administrative boards
that deal with matters of policy will be closely comparable to the boards composed of elected
members. A member of a board which performs a policy-formation function should not be
susceptible to a charge of bias simply because of the expression of strong opinions prior to the
hearing, as long as those statements do not indicate a closed mind. Statements manifesting a
closed mind, even at the investigatory stage, constitute a basis for raising apprehended
bias.  Once the matter reaches the hearing stage a higher standard must apply (e.g. no
apprehension of bias).

a.: For ∏. Appeal allowed. Cory J.: The statements at issue here indicated not only a reasonable
apprehension of bias but also a closed mind on the commissioner's part on the subject.  Once the
order directing the holding of the hearing was given, the ∏ was entitled to procedural
fairness.  At the investigative stage, the "closed mind" test was applicable but once matters
proceeded to a hearing, a higher standard had to be applied which required the ∆ members to
conduct themselves so that there could be no reasonable apprehension of bias.

5.2. Lack of Independence/Impartiality

Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 FC 552 (CA) (at 651)
f.: ∏ claimed to be Convention refugee, Minister disagreed and ∏ made application to
Immigration Appeal Board (IAB) for re-determination. ∏ then claimed bias due to apparent
effects of Bill C-55 on the IAB. Bill was to dissolve IAB, and put 49 members out of work, but
form new Immigration and Refugee Board (IRB) that members could apply to sit on. ∏ argued
that this would put pressure on board members to “please the government” by rejecting
applications/appeals. ∏ succeeded at FCTD. ∆ appealed to FCA.

i.: Does the introduction of Bill C-55 create an apprehension of a lack of independence amongst
members of the IAB due to the job-insecurity that the Bill creates?

r.: The mere expression of a government’s intentions toward a tribunal cannot give rise to an
apprehension of a lack of independence.

a.: For ∆. Appeal allowed. Mahoney JA.: Members of IAB are right minded. No informed, right
minded person would conclude that members of IAB would think that rejecting applications
would please the government. Government announcement of its intentions with regards to a
tribunal are essential for the democratic process, as it allows those who disagree with the
intentions to voice their concerns. Presuming that such announcements would create an
apprehension of impartiality in the tribunal would have a chilling effect on government’s
statements and public input into such matters would be lost.

43
Alex Couture Inc. v. Canada (AG) (1991), 83 DLR (4th) 577 (Que. CA) (at 653)
i.: What are the requirements that a tribunal must meet to be considered an independent and
impartial tribunal under s. 11(d) of the Charter?

r.: Rousseau-Joule JA.: Impartiality of a judge/tribunal is the absence of bias, actual or

perceived. There is also a requirement of institutional independence/impartiality. For the
purposes of s. 11(d) of the Charter the test for assessing the independence of judge/tribunal is
“what would an informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude.” Three conditions must be met – (1) Security of tenure
(against interference by executive or other appointing authority in an arbitrary manner – most
important), (2) Financial security (against arbitrary interference by the executive) and
(3) Institutional independence with respect to administrative decisions bearing directly on the
exercise of judicial functions (independence from government).
The test for institutional independence also applies to institutional impartiality. The fact that a
judge sits part-time on a tribunal does not raise bias, but the activities that judges engage in while
not sitting may give rise to an apprehension. Must apply a two-step test: (1) having regard for a
number of factors, but not limited to, the nature of the occupation and the parties who appear
before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully
informed person in a substantial number of cases? (2a) If no, allegations of bias cannot be
brought at an institutional level but must be dealt with on case-by-case basis. (2b) If yes, the
occupation is per se incompatible with the function of the judge – but must consider the
sufficiency of safeguards to minimize such prejudicial effects to determine if they meet the
guarantee of impartiality under s. 11(d).

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3 (at 662)
f.: Amendments to the Indian Act enabled First Nations bands to pass their own by-laws for the
levying of taxes against real property on reserve lands.  The ∆ (A) bands each developed taxation
and assessment by-laws which were implemented following the Minister's approval.  The
Matsqui Band's assessment by-law provided for the appointment of Courts of Revision to hear
appeals from the assessments, the appointment of an Assessment Review Committee to hear
appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law to
the FCTD from the decisions of the Assessment Review Committee.  All the by-laws provided
that appeal tribunal members could be paid, but did not mandate that they be paid, and gave no
tenure of office. Each ∆ sent the ∏ (R) ("CP"), a notice of assessment in respect of the land
forming its rail line which ran through the reserves.  The Matsqui Band also sent a notice of
assessment to the ∏ (Unitel”), which laid fibre optic cables on the CP land. The ∏ commenced
an application for judicial review in the FCTD, requesting that the assessments be set aside.  The
∆ brought a motion to strike the ∏ application for judicial review on the grounds that the
assessment by-laws provided for an adequate alternative remedy -- an eventual right of appeal to
the FCTD.  The motions judge accepted the argument and struck out the ∏’s application for
judicial review. The FCA allowed ∏ appeal, and dismissed the ∆ motion to strike.  

i.: Was there a lack of institutional independence in the ∆ appeal tribunals?

44
r.: The essential conditions of institutional independence in the judicial context need not be
applied with the same strictness in the case of administrative tribunals. Conditions of institutional
independence must take into account their operational context. The reasonable person, before
making a determination of whether or not he or she would have a reasonable apprehension of a
lack of independence, should have the benefit of knowing how the tribunal operates in actual
practice.

a.: Per Sopinka J (3 others concurring): The essential conditions of institutional independence
in the judicial context need not be applied with the same strictness in the case of administrative
tribunals. Conditions of institutional independence must take into account their operational
context.  This context includes that the band taxation scheme was part of a nascent attempt to
foster Aboriginal self-government.  Before concluding that the by-laws in question deprive the
band tribunals of institutional independence, they should be interpreted in the context of the
fullest knowledge of how they are applied in practice.  The reasonable person, before making a
determination of whether or not he or she would have a reasonable apprehension of bias, should
have the benefit of knowing how the tribunal operates in actual practice.  Case law has tended to
consider the institutional bias question after the tribunal has been appointed and/or actually
rendered judgment.  
Per Lamer J. (Cory J. concurring): Principles of natural justice apply to the ∆ tribunals and are
not diluted by a federal policy of promoting Aboriginal self-government. Judicial independence is
a long standing principle of constitutional law which is also part of the rules of natural justice
even in the absence of constitutional protection. Natural justice requires that a party be heard by a
tribunal that not only is independent but also appears to be so.  A strict application of the
principles for judicial independence is, however, not always warranted. Therefore, while
administrative tribunals are subject to these principles, 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 (i.e., security of tenure, financial security and
administrative control) depends on the nature of the tribunal, the interests at stake, and other
indices of independence such as oaths of office. In this case, three factors lead to conclusion of
apprehension of bias:  (1) the complete absence of financial security for members of the tribunals;
(2) the complete absence of or ambiguity in security of tenure and (3) the fact that the tribunals,
whose members are appointed by the Band Chiefs and Councils, are being asked to adjudicate a
dispute pitting the interests of the bands against outside interests.

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 SCR 919 (at 672)
f.: After finding the way ∆ operated in practice led to reasonable apprehension of bias in an
institutional sense, court went on to deal with further argument of lack of independence.

r. Security of tenure does not require appointment for life. Fixed-term appointments, which are
common, are acceptable. However, the removal of adjudicators must not simply be at the
pleasure of the executive – dismissal by executive for certain reasons, along with right to contest
wrongful dismissal in court are satisfactory. Large number of points of contact between the board
and the executive does not raise a reasonable lack of institutional independence so long as
decision making lies with the board. The fact that a Minister is ultimately responsible for the
Board does not infringe institutional independence.

45
a.: Gonthier J.: The three main components of judicial independence are financial security,
security of tenure and institutional independence. A certain degree of flexibility is appropriate
where administrative agencies are concerned.  In interpreting s. 23 of the Charter, it is necessary
to consider the functions and characteristics of the administrative agencies in question. In this
case, the directors have sufficient security of tenure, since sanctions are available for any
arbitrary interference by the executive during a director's term of office.  The directors' conditions
of employment meet the minimum requirements of independence.  Fixed-term appointments,
which are common, are acceptable.  However, the removal of adjudicators must not simply be at
the pleasure of the executive.  Here the orders of appointment state that the directors can be
dismissed only for certain specific reasons.  In addition, it is possible for the directors to apply to
the ordinary courts to contest an unlawful dismissal. The large number of points of contact
between the ∆ and the Minister of Public Security does not raise a reasonable lack of institutional
independence.  It is not unusual for an administrative agency to be subject to the general
supervision of a member of the executive with respect to its management.  The essential elements
of institutional independence may be summed up as judicial control over the administrative
decisions that bear directly and immediately on the exercise of the judicial function.  It has not
been shown how the Minister of Public Security might influence the decision-making
process.  The fact that the Minister is ultimately responsible for both the ∆ and the various police
forces conducting investigations would not cause an informed person to have a reasonable
apprehension with respect to the independence of the directors.  The directors swear an oath
requiring them to perform the duties of their office honestly and fairly.

NOTE: Tenure, salary, administration are guidance points to determining

independence/impartiality and that lack of one may not necessarily be fatal for the tribunal.

6. Standard of Review
Crevier v. Quebec (AG), [1981] 2 SCR 220 (at 46)
Judicial review for jurisdictional error is a constitutional guarantee. Interpretation of ss. 96-101
the Constitution Act, 1867: given the necessity of an independent/impartial judiciary, there is
little point in having that if Parliament can empower a tribunal to become the final arbiter of its
jurisdiction, which was, at the time of Confederation, the role of the superior courts. This applies
to the provinces, and in subsequent jurisprudence to the federal government.

CUPE, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 SCR 227 (at 714)
f.:  During the course of a lawful strike the ∏ (A) union complained that the ∆ (R), the employer,
was replacing striking employees with management personnel contrary to s. 102(3)(a) of the
Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. The issue centered on s. 102(3)(a)
of the Act which provides that "the employer shall not replace the striking employees or fill their
position with any other employee." The Public Service Labour Relations Board rejected the ∆’s
argument that the only intent of the section was to ensure that the jobs remained open for the ∏
after the strike was over. The Board's view was that the Legislature intended through s. 102(3) to
restrict the possibility of picket-line violence by prohibiting strike-breaking and picketing; an
intention which would be frustrated if the ∆’s argument was accepted. The Appeal Division
allowed an application by the ∆ for certiorari and quashed the decision of the Board, holding the

46
interpretation of s. 102(3) as a “preliminary or collateral matter” wrongly decided by the Board
which thereby assumed a jurisdiction that it did not have. ∏ appealed to SCC.

i.: Is the interpretation of s. 102(3) a preliminary or collateral matter? Did the Board incorrectly
interpret the section and thereby assume a jurisdiction it did not have (thus enabling judicial
review)?

r.: Examples of jurisdictional error include: acting in bad faith, basing the decision on extraneous
matters, failing to take relevant factors into account, breaching the provisions of natural justice or
misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not
remitted to it. Board decisions protected by a privative clause will only be overturned if they are
“patently unreasonable.”

a.: For ∏. Appeal allowed. Dickson J.: The language of "preliminary or collateral matter" does
not assist in determining the Board's jurisdiction. Court should focus instead on what the Board is
supposed to do in relation to the question being asked. Examples of jurisdictional error include:
acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into
account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so
as to embark on an inquiry or answer a question not remitted to it. The privative clause in s. 101
protects the decisions of the Board made within jurisdiction and that section is clear statutory
direction that public sector labour matters be promptly and finally settled by the Board. This
would dispose of the appeal were it not for the contention that the Board's interpretation was
'patently unreasonable'. In this case the tribunal could come to 4 different interpretations of the
section, all of which are reasonable.

Union des employes de service, Local 298 v. Bibeault, [1988] 2 SCR 1048 (at 726)
f.:  The question is whether s. 45 of the Labour Code applied to the case of two subcontractors
who succeeded each other under two subcontracting contracts given to them by the same
principal, without there being any legal relation between the two subcontractors.  MBD and
Netco handled janitorial services in six schools under contracts for janitorial services awarded
annually through tender.  At the time ∏ (A) represented the Netco and MBD
employees.  Following a strike by MBD and Netco employees, the school board legally
terminated the K and, after tendering, assigned the janitorial services of the schools by K to
Services Ménagers.  ∏ filed applications with the labour commissioner citing ss. 45 and 46 of
the Labour Code, seeking to have the transfer of the rights and obligations of MBD and Netco to
Services Ménagers and so defeat ∆ (R) application for certification of the Services Ménagers
employees. The commissioner granted ∏ applications and he dismissed ∆ application for
certification Labour Court upheld the decisions of the commissioner.  ∆ applied to the Superior
Court.  The Sup. Ct. allowed the motion and the judgment was affirmed by the CA.  ∏ appealed.

i.: Did the Labour Commissioner and, on appeal, the Labour Court act in excess of jurisdiction by
holding that the “successor-employer” provisions of the Labour Code applied to a company that
had successfully tendered for a K to provide janitorial services for schools run by the Board? (i.e.
if the decisions of the Labour Court are in error, are they subject to judicial review by the
superior courts?)

47
r.: Must ask "Did the legislator intend such a matter to be within the jurisdiction conferred on the
tribunal?” Now use pragmatic and functional analysis. First stage of the analysis involves
determining the tribunal's jurisdiction.  To do this, Court examines (1) wording of the enactment
conferring jurisdiction on the administrative tribunal, (2) purpose of the statute creating the
tribunal, (3) the reason for its existence, (4) the area of expertise of its members and the (5)
nature of the problem before the tribunal.

a.: For ∆. ∏ appeal dismissed. Beetz J.: Labour tribunals do not have jurisdiction to decide
whether there had been an alienation (voluntary transfer of right of ownership) by another of an
undertaking for 3 reasons. (1) the language of s. 45 did not make this question dependent on
opinion formed by tribunal. (2) “alienation” is Civil Code concept – the specialized expertise of
the tribunal was irrelevant to an understanding of whether the events constituted an “alienation”
of an undertaking (this type of question is best dealt with by the courts); (3) by giving purely
“functional” meaning to “undertaking”, and by dispensing with need for consensual transaction
before there could be “alienation”, tribunal ignored essential structure of collective bargaining
under Labour Code – “an employer, his undertaking and the association of employees connected
with that employers undertaking”.

6.1. Deviations from the Standard of Review

Canada (AG) v. Mossop, [1993] 1 SCR 554 (at 733)
f.: The complainant (∆), a federal government employee, took a day off work to attend the funeral
of the father of the man he described as his lover.  The collective agreement between Treasury
Board and the ∆ union provided for up to 4 days leave upon the death of a member of an
employee's "immediate family", a term defined as including a C/L spouse.  The definition of
"common-law spouse" was restricted to a person of the opposite sex.  The day after the funeral
the ∆ applied for bereavement leave pursuant to the collective agreement, but his application was
refused.  The grievance he filed was rejected on the basis that the denial of his application was in
accordance with the collective agreement.  The ∆ then filed complaints with the ∏ (A) Canadian
HRC against his employer and his union. The HR tribunal concluded that a discriminatory
practice had been committed (discrimination on basis of "family status").  It ordered that the day
of the funeral be designated as a day of bereavement leave and that the collective agreement be
amended so that the definition of C/L spouse include persons of the same sex. The FCA granted
the ∏’s application pursuant to s. 28 of the Federal Court Act and set aside the tribunal's
decision.  ∆ appealed.

i.: What is the standard of review that the FCA should have applied when reviewing for error of
law the tribunal’s interpretation of its enabling legislation pursuant to s. 28, given the lack of a
privative clause?

r.: When tribunals are acting under a privative clause the SCC has limited the power of review to
cases of patent unreasonableness (Nipawin). Where there is no privative clause, deference will be
given on questions of law only to certain specialized tribunals. HR tribunals are not such
specialized tribunals, therefore deference will only be given to questions of fact, not law.

a.: For ∏. ∆ appeal dismissed. Lamer CJC.: The general question raised in this appeal is one
of statutory interpretation (definition of “family status) where FCA has jurisdiction. When

48
tribunals are acting under a privative clause the SCC has limited the power of review to cases of
patent unreasonableness (Nipawin). Where there is no privative clause, deference will be given
on questions of law only to certain specialized tribunals. HR tribunals are not such specialized
tribunals, therefore deference will only be given to questions of fact, not law (although some
expertise can develop from experience – “field sensitivity”)
L’Heureux-Dube J. (dissenting): The P&F approach articulated in Bibeault provides the proper
framework to determine the appropriate standard of review in a specific case.  It must be asked
whether the legislator intended the question to be within the jurisdiction conferred on the tribunal.
The Court will examine not only (1) the wording of the enactment conferring jurisdiction on the
tribunal, but (2) the purpose of the statute creating the tribunal (the reason for its existence), (3)
the nature of the problem before the tribunal and (4) the area of expertise of its members.  If
courts should answer question – correctness. If HR tribunal should answer question – patent
unreasonableness. The Tribunal has the jurisdiction to determine questions of fact, and courts
should defer to these findings unless they are patently unreasonable.  The Tribunal also has
jurisdiction to interpret the HR Act and, consequently, the meaning of the term "family status" in
s. 3.  Courts should defer to the Tribunal's interpretation (unless patently unreasonable) since the
legislature specifically intended that the Commission and its tribunals should carry out the task of
interpreting the grounds of discrimination in the Act.

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction
Ltd., [1993] 2 SCR 316 (at 745).
f.: The ∏ (A) represents employees of the ∆ (R), which is affiliated with and carries on business
on the same premises as N.D. Dobbin Ltd., a non-unionized company.  The two companies use
common facilities and are owned, managed and directed by the same persons. While a collective
agreement between ∆ and the ∏ was in effect, Dobbin won K to construct a university
building.  To assist in carrying out this K, it hired non-unionized carpenters. The ∏ claimed that
this amounted to a breach of the collective agreement it had with ∆ because Dobbin was an
affiliated company of ∆.  Article 3.01 of the agreement provides that "when the Employer shall
perform any work of the type covered by this Agreement ... this Agreement shall be applicable to
all such work".  The arbitrator ruled for ∏.  He noted that the existence of the two companies
permitted ∆ to engage in the practice of "double-breasting", whereby the non-unionized arm,
Dobbin, could bid on contracts and carry out work using the facilities, management personnel
and equipment of the unionized arm, ∆, but could hire non-union personnel. The practice of
double-breasting had led to a prolonged strike in 1986 which was settled by both: the ∏ agreed
to wage concessions, while the companies agreed to stop engaging in "double-breasting".  The
arbitrator found that Article 3 was incorporated into the agreement in an effort to guarantee the
companies' compliance with the "double-breasting" concession.  In his view this case presented a
clear example of double-breasting which the report was intended to terminate.  Decision was
upheld by the Nfld. SC-TD, but reversed by the CA, which found that both the arbitrator's
determination that the meaning of the phrase "perform any work" was unclear and his resolution
of the ambiguity were patently unreasonable. ∏ appealed.

i.: What is the appropriate standard of review to be applied to the arbitrator’s decision given the
absence of a full privative clause? Did the arbitrator, in finding ambiguity in Article 3 of the
collective agreement and in concluding that the agreement had been breached by the ∆, make a
reviewable error?

49
r.: Where the relevant provision is a true privative clause, judicial review is limited to errors of
jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's
powers or a patently unreasonable error on a question of law. Other forms of clauses may also
have privative effect.  Wording such as "final and conclusive" may be found to restrict review to
matters of jurisdiction if the court concludes that the legislator clearly intended that the decision
should be immune from review in the absence of an error as to jurisdiction. In this analysis a
court should consider the clause in light of the (1) purpose, (2) nature and (3) expertise of the
tribunal in question. 

a.: For ∏. Appeal allowed. Sopinka J.: The goal of mandatory arbitration is to arrive at an
efficient and cost-effective manner of resolving.  An unlimited scope of judicial review of an
arbitrator's decision would thwart this goal, therefore the words "final settlement" must be taken
to indicate the legislature's intention that the courts exercise some restraint in this area. The
questions the arbitrator had to resolve here involved the interpretation of the collective agreement
and its application to a particular factual situation, matters which constitute the core area of an
arbitrator's expertise.  Combined with the purpose and wording of s. 88, the arbitrator's relative
expertise mandates that the court defer to the decision of the arbitrator in this case unless his
decision is found to be patently unreasonable.

6.2. Extending Deference – Statutory Appeals

Even when there is a statutory right of appeal, the P&F approach must still be applied – a right of
appeal is one factor to be considered (that favours review on standard of correctness).

Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 (at 764)
f.: BC Securities Commission had found ∏ (R) and others had failed to make timely disclosure
in respect of certain transactions as required by the Securities Act. It suspended them from trading
shares for a year and ordered them to pay costs. ∏ exercised right of appeal on a question of law
under s. 149 of the Act, arguing Commission erred in its interpretation of the phrase “material
change” in the affairs of a reporting issuer shares. CA allowed appeal and ∆ appealed to SCC.

i.: What is the standard of review to be applied to a decision of a securities commission not
protected by a privative clause and where there is a statutory right to appeal?

r.: Where there is a specialized tribunal that is deciding a question of law on a matter that goes to
the core of its expertise (e.g. securities commission interpreting the Securities Act), significant
deference should be granted to its decisions notwithstanding the facts that there was a statutory
right of appeal and that there was no privative clause.

a.: For ∆. Appeal allowed. Iacobucci J.: The courts have developed a spectrum of review that
ranges from patent unreasonableness (where deference is at its highest, for example, where a
tribunal is protected by a privative clause in deciding a matter within its jurisdiction) to that of
correctness (where deference is at its lowest, for example, where there is a statutory right of
appeal or where the issue concerns the interpretation of a provision limiting the tribunal's
jurisdiction).  This case falls between these two.  On one hand lies a statutory right of appeal
pursuant to s. 149 of the Securities Act. On the other lies an appeal from a highly specialized

50
tribunal on an issue which arguably goes to the core of its regulatory mandate and
expertise.  Given the nature of the securities industry, the Commission's specialization of duties
and policy development role, and the nature of the problem before the court, considerable
deference was warranted in the present case notwithstanding the facts that there was a statutory
right of appeal and that there was no privative clause.

Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748 (at 769)
f.: In 1989, ∆ began to acquire community and specialized newspapers in the Vancouver area,
and one year later had obtained a controlling interest in 13 community newspapers (including the
two strongest ones, the North Shore News and the Vancouver Courier), a real estate advertising
publication, three distribution services and two printing concerns.  The ∏ (R) applied for an
order requiring ∆  to divest itself of the North Shore News, the Vancouver Courier, and the Real
Estate Weekly, alleging that the concentration of these properties in the hands of one publisher
was likely to lessen competition substantially in the retail print advertising and real estate print
advertising markets in the Lower Mainland.  The Competition Tribunal found a substantial
lessening in competition in the real estate print advertising market in the North Shore.  It ordered
∆ to divest itself, at its option, of either the North Shore News or the Real Estate Weekly.  It
rejected ∆’s proposal that it sell the real estate section of the North Shore News. ∏ appealed the
Tribunal's decision on the merits and ∆ appealed the Tribunal's decision on the remedy.  The
FCA allowed the first appeal and dismissed the second.

i.: Whether the FCA erred in concluding that it owed no deference to the Tribunal's finding about
the dimensions of the relevant market and in subsequently substituting for that finding one of its
own.

r.: Questions of law are questions about what the correct legal test is; questions of fact are
questions about what actually took place between the parties; and questions of mixed law and fact
are questions about whether the facts satisfy the legal tests. Appellate courts should be reluctant
to venture into a re-examination of the conclusions of the Tribunal on questions of mixed law and
fact. Standard of reasonableness simpliciter - A standard more deferential than correctness but
less deferential than "patently unreasonable" is required when several considerations, including
particularly the expertise of the Tribunal, counsel deference while others suggest a more exacting
form of review (no privative clause, right to appeal). An unreasonable decision is one that, in the
main, is not supported by any reasons that can stand up to a somewhat probing examination. The
difference between "unreasonable" and "patently unreasonable" lies in the immediacy or
obviousness of the defect.  If the defect is apparent on the face of the tribunal's reasons, then the
decision is patently unreasonable.  But if it takes some significant searching or testing to find the
defect, then the decision is unreasonable.

a.: For ∏. Appeal on merits allowed; ∆ appeal on the remedy dismissed. Iocabucci J.: There
is no privative clause (therefore counsels less deference). The Tribunal, however, has been
recognized as being expert in overseeing a complex statutory scheme whose objectives are
economic.  A court is likely to encounter difficulties in understanding the economic and
commercial ramifications of the Tribunal's decisions and consequently to be less able to secure
the fulfillment of the purpose of the Competition Act. Therefore the purpose of the Act is better

51
served by deference to the Tribunal's decisions. Expertise is the most important of the factors that
a court must consider in settling on a standard of review. 

Law Society of New Brunswick v. Ryan, 2003 SCC 20 (at 780)

f.: ∏ disbarred ∆ for professional misconduct. ∆ appealed to NB CA as provided for in Law
Society Act of NB, who remitted matter to Discipline Committee mandating it reconsider matter
in light of medical evidence submitted by ∆. Committee did so and reaffirmed decision. ∆
appealed to CA, which allowed appeal and substituted penalty of indefinite suspension. ∏
appealed to SCC.

i.: Is there a fourth standard between unreasonableness and patent unreasonableness? In the
alternative, are there floating concepts of unreasonableness depending on the circumstances?

r.: There are only three standards for judicial review of administrative decisions: correctness,
reasonableness simpliciter and patent unreasonableness. Additional standards should not be
developed unless there are questions of judicial review to which the three existing standards are
obviously unsuited.  The pragmatic and functional approach will determine, in each case, which
of these three standards is appropriate. The reasonableness standard does not float along a
spectrum of deference such that it is sometimes quite close to correctness and sometimes quite
close to patent unreasonableness – were this so it would require that the court ask different
questions of the decision depending on the circumstances.  Satisfying reasonableness
simpliciter: If any of the reasons that are sufficient to support the conclusion are tenable in the
sense that they can stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the
standard if it is supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling.

a.: For ∏. Appeal allowed. Iacobucci J.: Although there is a statutory appeal from decisions of
the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and
the nature of the question in dispute all suggest a more deferential standard of review than
correctness.  A consideration of these four contextual factors leads to the conclusion that the
appropriate standard is reasonableness simpliciter. There is nothing unreasonable about the
Discipline Committee's decision to ban a member from practicing law when his repeated conduct
involved an egregious departure from the rules of professional ethics and had the effect of
undermining public confidence in basic legal institutions. Since the Discipline Committee
provided reasons in support of its choice of sanction that were tenable and grounded in the
evidence, its decision was not unreasonable and the CA should not have interfered.

6.3. Reinforcing and Rearticulating the Modern Standard of Review

CUPE, Local 301 v. Montreal (City), [1997] 1 SCR 793 (at 753)
f.: The ∆ (A) requested the intervention of the Conseil des services essentiels (the "Council"),
alleging that the ∏ (R) had instructed the ∆’s union workers to refuse to work overtime for the
duration of a holiday weekend.  Under their collective agreement, ∏ members have the right to
refuse to work overtime without giving a reason.  The Council held a public hearing at which
witness testimony and argument by legal representatives on behalf of both parties were

52
heard.  The hearing was not taped.  The Council ordered the ∏ to take all necessary measures to
ensure that its members reported to work and fulfilled their usual duties, whether in regularly
scheduled or overtime hours, as requested by the employer. The employees were similarly
ordered to report to work if requested by the employer, again for regular hours or overtime.  The
Council found that the requisite elements to make an order pursuant to ss. 111.17 and 111.18 of
the Quebec Labour Code, which authorize orders to ensure the maintenance of services to which
the public is entitled where there exists a concerted action related to a labour conflict and either is
currently or has the potential of prejudicing these services, were established.  The ∏ filed motion
for review of the Council's decision, on the grounds that the tribunal had interpreted the law and
the evidence in a patently unreasonable manner.  The motion was dismissed at trial. The CA
overturned the judgment, granted the ∏ motion for review, and quashed the Council's order.  It
found that in ordering the suspension of a provision of the collective agreement, the Council had
exercised a remedial power not conferred upon it (committing a jurisdictional error). ∆ appealed.

i.: Did the Council commit a jurisdictional error by exercising a remedial power not conferred
upon it (ordering the suspension of a provision of the collective agreement, that being the ability
of union workers to refuse overtime without reasons)?

r.: To determine whether the question facing the Council was one which the legislature intended
it to decide, a P&F interpretation of the  statute is required, one which considers (1) the wording,
purpose and underlying reasons of the legislation in creating the tribunal, (2) the tribunal's
expertise and (3) the problem before it.
a.: For ∆. Appeal allowed. L’Heureux-Dube J.: Quebec Labour Code establishes a system of
collective bargaining between employers and employees in the province. The Council is created
and granted various functions and remedial powers. The need for this specialized body is evident:
when public employees strike, the pressure exerted on the employer arises from the disruption of
services upon which society depends. The government must balance the right to strike against
other entitlements and needs such as those established in human rights and social legislation.  The
health and safety of the greater populace will always take priority over the workers' and/or
employers' interests in achieving a fair and equitable settling of the terms of employment. The
legislation has granted the Council broad powers to make orders that maintain the public's
ongoing access to fundamental services. The issue before the Council was one that lies logically
at the heart of its specialized jurisdiction. The task faced by the Council was the fashioning of an
effective order that is required and reasonable to secure the provision of services to which the
public is entitled.  In the presence of a strongly worded privative clause such as the one in s. 139
of the Labour Code, where the factual and legal aspects of the problem facing the tribunal place
the question squarely within its sphere of expertise, the tribunal's decision will stand unless it is
patently unreasonable

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (at
790)
f.:  In 1985, the ∏ (A) claimed refugee status under the UN Convention Relating to the Status of
Refugees as implemented by the Immigration Act, but his claim was never adjudicated as he was
granted permanent residence status in Canada. The ∏ was later arrested in Canada and charged
with conspiracy to traffic a narcotic.  He pleaded guilty and was sentenced to eight years in
prison.  In 1991, the ∏, then on parole, renewed his claim for Convention refugee status.

53
Employment and Immigration Canada subsequently issued a conditional deportation order
against him under ss. 27(1)(d) and 32.1(2) of the Act.  Since the deportation pursuant to those
sections is conditional upon a determination that the claimant is not a Convention refugee, the
∏’s claim was referred to the Immigration and Refugee Board. The Board decided that the ∏
was not a refugee by virtue of the exclusion clause in Art. 1F(c) of the Convention, which
provides that the provisions of the Convention do not apply to a person who "has been guilty of
acts contrary to the purposes and principles of the United Nations".  The FCTD dismissed the
∏’s application for judicial review and certified the following as a serious question of general
importance:  Is it an error of law for the IRB to interpret Art. 1F(c) of the Convention to exclude
from refugee status an individual guilty of a serious narcotics offence committed in Canada?  The
FCA answered "no" and upheld the judgment of the TD. ∏ appealed to SCC.

i.: What is the proper standard of judicial review over decisions of IRB?

r.: P&F approach for determining standard of review. Consider the following factors:
(1) Presence/absence of legislative indicia: presence of full privative clause compels court to
show deference to tribunal’s decision, unless other factors show to contrary. Less than full
clauses mean less deference. Presence of appeal compels court to show less deference;
(2) Expertise of the agency: most important factor. It is relative concept. Court must
characterize expertise of tribunal; it must consider its own expertise relative to tribunal; it must
identify nature of specific issue before tribunal relative to this expertise. High relative expertise
suggests higher deference even on generalized interpretation of tribunals empowering statute;
(3) Purpose of Act and of Provision: where purpose of statute and decision maker are focused
on delicate balancing between different constituencies (polycentricity) and not establishing rights
between parties, more deference. Where issues dealt with are less strictly “legal” and more in line
with policy, more deference;
(4) Nature of problem: generally less deference on questions of law rather than fact.

a.: For ∏. Appeal allowed. Bastarache J.: (1) Privative clauses – here there is no strong
privative clause (does not say “decision is final” or “not subject to review”); there is a right of
appeal beyond FCTD only on questions of general importance – correctness. (2) Expertise – here
only 10% of IRB need to be lawyers, boards can be convened without a lawyer, question of
importance is about general HR and International law which IRB has no expertise in (their
expertise is in accurately evaluating whether the criteria for refugee status have been met and, in
particular, in assessing the nature of the risk of persecution faced by the applicant if returned to
his country of origin); In Mossop no deference given to HR tribunal on HR matters, therefore no
deference on such matters for IRB – correctness. (3) Purpose of Act as Whole and Provision in
Particular – here IRB is not engaged in significant policy making role – correctness. (4) Nature of
Problem – here there is a “serious question” of law – correctness.

6.4. Focusing on the Nature of the Problem

Trinity Western University v. BC College of Teachers, [2001] 1 SCR 772 (at 801)
f.: ∏ is a private institution in B.C., associated with the Evangelical Free Church of Canada.  ∏
established a teacher training program offering degrees in education in collaboration with Simon
Fraser University ("SFU"). ∏ applied to the ∆ for permission to assume full responsibility for the
teacher education program.  One of the reasons for assuming complete responsibility for the

54
program was ∏’s desire to have the full program reflect its Christian worldview.  The ∆ refused
to approve the application because it was contrary to the public interest (∏ appears to follow
discriminatory practices against homosexuals).  On application for judicial review, the BCSC
found that it was not within the ∆’s jurisdiction to consider whether the program follows
discriminatory practices under the public interest component of the Teaching Profession Act and
that there was no reasonable foundation to support the ∆’s decision on that ground. The court
ordered mandamus, allowing approval of the ∏’s proposed teacher education program for a five-
year period subject to a number of conditions. The BCCA found that the ∆ had acted within its
jurisdiction, but affirmed the trial judge's decision on the basis that there was no reasonable
foundation for the ∆ finding of discrimination. ∆ appealed.

i.: Did the ∆ act outside its jurisdiction in finding the ∏’s “Community Standards”
discriminatory? Did the ∆ err in its finding of discrimination?

r.: P&F approach for determining standard of review.

a.: For ∏. Appeal dismissed. Iacobucci and Bastarache JJ.: (1) There is no privative clause
protecting ∆ decision. (2) While ∆ has the discretion to determine the public interest, the ∆ is not
the only government actor entrusted with policy development in the area of teaching.
Furthermore, its expertise does not qualify it to interpret the scope of human rights nor to
reconcile competing rights. (3) Purpose of the Teaching Profession Act is to ensure that public
schools fulfill various roles: develop civic virtue and responsible citizenship and to educate in an
environment free of bias, prejudice and intolerance.  It would not be correct, in this context, to
limit the scope of s. 4 to a determination of skills and knowledge. The suitability for entrance into
the profession of teaching must take into account all features of the education program at ∏.The
∆ had jurisdiction to consider discriminatory practices in dealing with the ∏ application. (4) The
existence of discriminatory practices is based on the interpretation of the  documents and HR
values and principles.  This is a question of law that is concerned with human rights and not
essentially educational matters. Standard of review is correctness.
L’Heureux-Dube J. (dissenting): (1) There is no privative clause. (2)  ∆ has relative expertise in
the area of setting standards for admission into the teaching profession.  (3) The ∆ decision
concerning ∏ teacher education program goes to the heart of the Teaching Profession Act's
raison d'être. The ∆ is entrusted with policy development. Moreover, the ∆ has wide discretion to
review teacher-training programs under the Act. Its polycentric decision in this case was made
pursuant to s. 21(i) of the Act, which involves the application of vague, open-textured principles,
requiring curial deference. (4) ∆ decision is fact-based, concerning an issue the nature of which
implicates the tribunal's expertise. Determining how ∏ program may affect its graduates'
preparedness to teach in the public schools is a factual rather than a legal inquiry and requires the
specialized expertise of the ∆ members, the majority of whom have classroom experience.
Standard of review is patent unreasonableness

Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 SCR 100 (at
812)
f.:  Under the Customs Act, value must be attributed to goods that are imported to Canada to
determine duty. ∏ sought to include royalties paid by ∆ pursuant to a licence agreement between
∆ and a trademark licensor ("Licensor X") in the value for duty of the imported goods.  ∆ also

55
made periodic payments to Mattel U.S. in respect of agreements Mattel U.S. had made with
various licensors ("Master Licensors").  The ∏ also sought to include these payments in the
value for duty of the imported goods.  The Canadian International Trade Tribunal ("CITT") held
that duty should be calculated on the sale between Mattel U.S. and ∆ and that neither the royalties
nor the periodic payments were dutiable because they were not paid "as a condition of the sale of
the goods for export to Canada" in accordance with s. 48(5)(a)(iv) of the Act.  The FCA reversed
the CITT's decision in part, finding that the periodic payments fell within the ambit of s. 48(5)(a)
(v). ∆ appealed.

i.: What is the standard of review for CITT decisions?

r.: P&F approach for determining standard of review.

a.: The ∆ appeal should be allowed in part. Major J.: (1) Protection of CITT decisions by
partial privative clause qualified by a statutory right of appeal to the FCA on "any question of
law".  As a result CITT findings of fact are immune from review, but its findings involving
questions of law are reviewable. (2) The indications that deference is owed to the CITT included
its expertise in some economic, trade or commercial matters. (3) Purpose of Act is to determine
duty to be paid on imported goods (economic, trade, commercial matters). (4) This appeal raises
pure questions of law requiring the application of principles of statutory interpretation and other
concepts that are intrinsic to commercial law therefore CITT's expertise does not speak to the
questions at issue. Such matters are traditionally the province of the courts.

7. Review of Discretion
Abuse of Discretion as Ground for Judicial Review
 C/L grounds of judicial review for abuse of discretion are: decision maker acted in bad
faith, wrongfully delegated its powers, fettered its discretion by laying down a general
rule and not responding to individual situations, or acted under the dictation of another.
 More common grounds are when an agency has exercised discretion to achieve a purpose
not contemplated by its grant, or when irrelevant factors are considered or relevant factors
are excluded.

7.1. Applying the Functional and Pragmatic Approach

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (at 57)
f.: Π is Jamaican citizen living in Canada illegally since 1981. Has 4 Canadian children. In 1992
was diagnosed with schizophrenia but has shown improvement. Π ordered deported in December
1992 for working illegally and overstaying visitor’s visa. In 1993 Π applied for exemption from
s. 9 requirement to apply for permanent residence outside Canada on humanitarian and
compassionate grounds (h&c) under s. 114(2) of Immigration Act (IA). Had assistance from
lawyer in filing application – contains letters from lawyer, doctor, social worker indicating that Π
was making progress and that deportation would likely result in relapse, and that both she and her
children would likely suffer emotional hardship if deported. 18 April 94 Officer Caden rejected
request without reasons. Notes taken by Officer Lorenz provided upon request by Π (used in
decision by Caden – at 59). 27 May 94 Π served deportation order for June 17. Order stayed
pending appeal.

56
i.: Was discretion improperly exercised because of the approach taken to interests of Π kids?

r.: Discretionary decisions are reviewable using the F&P approach to judicial review – (1)
legislative indicia; (2) expertise of decision-maker; (3) purpose of the Act/provision; (4) nature of
the question. Must consider if the treatment of the relevancy (not weighing) of factors in the
decision are consistent with the particular standard of review being applied. Not considering the
interest of the children of a person subject to a deportation order under the IA and is an
unreasonable exercise of discretion (given the objectives of the legislation [“keeping families
together”], international norms and Ministry guidelines).

a.: For ∏. L’Heureux-Dube J.: Discretionary decisions may be reviewed on limited grounds
such as (A) bad faith of decision makers, (B) use of discretion for improper purpose, (C)
irrelevant considerations. Must use the P&F approach to review of discretionary decisions: (1)
no privative clause and therefore no limits for judicial review (except require leave from FCTD)
– lower deference; (2) Minister is decision maker (high relative expertise) – higher deference; (3)
Purpose of provision is to allow Minister to apply “open-textured” (broad) legal principles to
“exempt” someone from provision of Act – higher deference. However, decision relates to
rights/interests of an individual, not balancing those of various constituencies – lower deference;
(4) h&c decisions are fact based (not law based) – higher deference. Therefore considerable but
not total deference should be given to decision makers – use reasonableness simpliciter. An
unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat
probing examination (usually a defect in evidentiary foundation or logic of decision). Not at all
considering interest’s of ∏ children is an unreasonable exercise of discretion (since children’s
rights are central h&c values in Canadian society).

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 (at 954)
f.: ∏ was determined by the Minister to be a threat to security of Canada and ordered deported to
Sri Lanka. ∏ challenged decision arguing that he faced a substantial risk of torture if he was
deported and that deporting someone to torture contravenes s. 7 of the Charter.

i.: What is the standard of review for a Minister’s decision to determine if ∏’s presence in
Canada constitutes a danger to national security and whether ∏ faces substantial risk of torture
upon return to his native country (Sri Lanka).

r.: The reviewing court should generally adopt a deferential approach to the Minister's decision
on whether a refugee's  presence constitutes a danger to the security of Canada.  This
discretionary decision may only be set aside if it is patently unreasonable (based on F&P
approach) in the sense that it was made arbitrarily or in bad faith, cannot be supported on the
evidence, or the Minister failed to consider the appropriate factors.  Likewise, the Minister's
decision on whether a refugee faces a substantial risk of torture upon deportation should be
overturned only if it is not supported on the evidence or fails to consider the appropriate
factors.  The court should not reweigh the factors or interfere merely because it would have come
to a different conclusion.

a.: The Court: Insofar as the Act leaves open the possibility of deportation to torture (a
possibility which is not excluded), the Minister should generally decline to deport refugees where

57
on the evidence there is a substantial risk of torture. Apply the F&P approach. Minister’s
decision is not protected by a privative clause but can only be appealed by leave to the FCTD and
the leave decision may not be appealed – deference. The Minister is the decision maker and has
to have high relative expertise on matters of national security – deference. Purpose of the
legislation is to permit a humanitarian balancing of the danger posed to Canadians and the danger
of persecution upon refoulement, where the Minister is better situated to decide – deference.
Nature of the case is highly fact-based and contextual – deference. Therefore standard of review
is one of patent unreasonableness. Court may not reweigh the factors considered but may
intervene if decision is not supported by the evidence or fails to consider appropriate factors.

7.2. Wrongful Considerations

CUPE v. Ontario (Ministry of Labour) 2003 SCC 29 (supplemental materials)
f.: Ontario's hospitals, nursing homes and their employees (∏ unions) resolve disputes by
compulsory arbitration under the Hospital Labour Disputes Arbitration Act ("HLDAA").  If the
parties cannot agree on an arbitrator, a panel of three members is struck, two designated by the
parties and the third chosen by the two designates or, if they fail to agree, appointed by the ∆
Minister of Labour (normal practice to identify arbitrators with expertise acceptable to both
management and the unions). In 1998 the ∆ appointed four retired judges to chair several
arbitration boards. They were not appointed by mutual agreement nor were they on the "agreed"
list. The ∏ objected that retired judges lack expertise, experience, tenure and independence from
government.  ∏ sought declarations that ∆’s actions denied natural justice and lacked
institutional independence and impartiality. The Div. Ct. dismissed the application for judicial
review. The CA allowed the ∏ appeal, concluding that the ∆ had created a reasonable
apprehension of bias and interfered with the independence and impartiality of the arbitrators, as
well as defeating the legitimate expectation of the unions contrary to the requirements of natural
justice. The ∆ was ordered not to make any further appointments "unless such appointments are
made from the long-standing and established roster of experienced labour arbitrators". ∆
appealed.

i.: What is the appropriate standard of review of a Minister’s discretionary decision to appoint
retired judges as labour arbitrators under the HLDAA? Can Minister appoint judges to sit as
labour arbitrators when they have no expertise or experience in this area of the law?

r.: Apply P&F approach. A Minister of Labour’s decision to appoint arbitrators under HLDAA is
subject to patent unreasonableness review. A patently unreasonable appointment is one whose
defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no
amount of curial deference can justify letting it stand. Not considering experience and expertise
in making such appointments is patently unreasonable.

a.: For ∏. ∆ appeal dismissed. Binnie J.: The P&F approach applies to the judicial review of
the exercise of a ministerial discretion. (1) there is a privative clause – deference. (2) Decision
maker is Minister who has high expertise in labour relations – deference. (3) Fundamental
purpose and object of HLDAA was to provide an adequate substitute for strikes and lock-outs
and to ensure the parties perceive the system as neutral and credible. Minister is in best position
to ensure this purpose is achieved – deference. (4) Nature of question is one of fact – deference.
Therefore standard is patent unreasonableness. A patently unreasonable appointment is one

58
whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent
that no amount of curial deference can justify letting it stand. The appointments were not patently
unreasonable simply because the ∆ did not restrict himself to the list of arbitrators.
However courts are entitled to have regard to the importance of the factors the ∆ altogether
excluded from his consideration. In this case, the ∆ expressly excluded relevant factors (expertise
and experience in labour law) that went to the heart of the legislative scheme. Therefore the ∆
approach to the appointments was patently unreasonable.

Re Sheehan and Criminal Injuries Compensation Board, (1975), 52 DLR (3d) 728 (Ont. CA),
rev’g (1973), 37 DLR (3d) 336 (Ont. Div. Ct.) (at 964)
f.: The applicant, an inmate of Kingston Penitentiary, was assaulted and injured by other inmates
during a riot of prisoners inside the institution. An application for compensation was made to the
respondent Board under the Law Enforcement Compensation Act, R.S.O. 1970, c. 237 (repealed
and superseded by the Compensation for Victims of Crime Act, 1971 (Ont.), Vol. 2, c. 51). The
Board refused the application and in doing so considered as relevant the following circumstances:
the fact that, as the applicant had himself been convicted of an offence and sentenced to
imprisonment in the penitentiary, he had "contributed" to his injury (s. 3(1)); the fact that the
assault took place inside a federal penitentiary wherein the applicant and his assailants were in
the custody and control of the federal Government, and the fact that the applicant had taken no
other proceedings to obtain compensation (as he was entitled to under s. 7(2)). Sheehan applied
for judicial review to quash the decision of the Board and was successful. The Board appealed.

i.: Has the Board in refusing the application done so within the proper limits of its discretionary
function established by its parent statute, or has the Board, in ascribing its refusal to one or more
of the circumstances above, exceeded it statutory jurisdiction so as to bring its decision within
reach of judicial review?

r.: A Board granted broad discretion to determine what circumstances are relevant to their
consideration of an application for an order to make payments under the Act are not subject to
review so long as the Board acted in good faith (and did not consider something that was patently
irrelevant).

a.: For Board. Appeal allowed. Kelly JA.: A distinction must be made between the Board giving
consideration to certain circumstances and the Board holding that a particular circumstance
disqualified an applicant from benefiting from the Act. The Board is granted broad discretion to
decide what is relevant; the payments provided by the statute are gratuitous and funding for such
payments is limited; the Board did not hold out any of the factors considered as prerequisites for
eligibility; therefore the Board did not exceed its jurisdiction and is therefore its discretionary
decision is not subject to judicial review. The Board did not consider anything that was patently
irrelevant and its disposition indicates a careful and thoughtful review of the circumstance and a
considered decision as to their relevancy.
My opinion – the analysis is appropriate, but the statutory interpretation of the word
“contributory behaviour” by the Board was patently irrelevant.

7.3. Wrongful Purpose

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231 (at 968)

59
f.: The ∏ (A) 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 ∆ Council passed resolutions that the City
would not do business with ∏ "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 BCSC quashed the resolutions as
being ultra vires the municipality.  The CA reversed the judgment. ∏ appealed.

i.: Did the ∆, in considering the conduct of the ∏ outside the city, take into consideration matters
irrelevant to municipal concerns, when it decided to boycott the ∏’s products, and thus makes its
decision ultra vires and subject to judicial review? Did the  act for other than Municipal Act
purposes?

r.: A municipality making procurement decisions under power of statute are subject to public law
judicial review. Generally, a municipal authority is authorized to act only for municipal purposes.
Attempting to influence matters in another part of the world is a purpose outside the City’s
territorial limits.

a.: 5-4 decision for ∏. Sopinka J.: Under the Vancouver Charter, Council "may provide for the
good rule and government of the city" (broad discretion with respect to commercial
powers).  This places a territorial limit on Council's jurisdiction.  While Council can have regard
for matters beyond its boundaries in exercising its powers, any action taken in so doing must have
as its purpose benefit to the citizens of the City.  Generally, a municipal authority is authorized to
act only for municipal purposes. The explicit purpose of the resolutions at issue here is to
influence Shell to divest itself of its South African holdings by expressing moral outrage against
the apartheid regime and to join the alleged international boycott of its subsidiaries and products
until Shell "completely withdraws from South Africa".  ∆ 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. Even if there were a municipal purpose, the resolutions
constitute unauthorized discrimination.  
McLachlin J. (dissenting): In cases where powers are not expressly conferred but may be
implied, courts must be prepared to adopt the "benevolent construction" which this Court referred
to in Greenbaum, and confer the powers by reasonable implication.  Such a generous, deferential
approach to municipal powers will aid the efficient functioning of municipal bodies, avoid the
costs and uncertainty of excessive litigation, is more in keeping with the true nature of modern
municipalities, and with the flexible, more deferential approach to the judicial review of un-
elected administrative agencies. Council may properly take measures related to fostering and
maintaining a sense of community identity and pride, and among such measures may be found
community expression of disapproval or approval of different types of conduct. The resolutions
discriminate against ∆, but that discrimination is authorized by the Vancouver Charter.  While
discrimination in the granting of licences, taxes and municipal privileges is generally viewed as
requiring express authorization by the empowering legislation, the presumption regarding the
exercise of a municipality's business powers is that the municipality has the power to make
distinctions between citizens and firms on a wide variety of grounds.

7.4. Constitutional Considerations

60
Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038 (at 987)
f.: ∆ (R) had been employed by ∏ (A) as a "radio time salesman" for three and a half years when
he was dismissed on the ground that his performance was inadequate.  ∆ filed a complaint and an
adjudicator appointed by the Minister of Labour under s. 61.5(6) of the Canada Labour Code
held that ∆ had been unjustly dismissed.  Based on s. 61.5(9)(c) of the Code, the adjudicator
made an initial order imposing on ∏ an obligation to give respondent a letter of recommendation
certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984;
(2) the sales quotas he had been set and the amount of sales he actually made during this period;
and (3) that an adjudicator had held that he was unjustly dismissed.  The order specifically
indicated the amounts to be shown as sales quotas and as sales actually made.  A second order
prohibited ∏ from answering a request for information about ∆ except by sending the letter of
recommendation.  The FCA dismissed an application by ∏ to review and set aside the
adjudicator's decision.  

i.: Whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders; whether the
orders infringed ∏’s freedom of expression guaranteed by s. 2(b) Charter, and if so, whether the
orders are justified under s. 1.

a.: For ∆. Appeal dismissed. Adjudicator’s decision re-instated. Dickson CJC: (1) Just
because a section in an Act has capacity to be invoked or used in ways that violate the Charter
does not mean that section is constitutionally invalid (attack is on exercise of discretion in the
particular circumstances). (2) Section 1 justifications can be advanced with respect to
discretionary violations and not just statutory violations (effectively eliminates “prescribed by
law” from s. 1). (3) Given the heavy burden on government to provide a s. 1 justification of the
discretionary decision, once that onus is met no one can then argue that, notwithstanding the s. 1
justification, the exercise of discretion was patently unreasonable.

7.5. Unwritten Constitutional Considerations

Lalonde v. Ontario (Commission de restructuration des services de sante) (2001), 56 OR (3d)
505 (CA) (at 1000)
f.: ∆ ordered Montfort Hospital, the only francophone hospital in Ottawa, to downsize (as part of
massive restructuring of health care services in Ontario). ∏ sought judicial review of this
decision alleging that the order violated Ontario’s French Language Services Act (FLSA) and
also an unwritten principle of the Constitution, that being the respect for and protection of
minorities. ∏ successful at trial. ∆ appealed.

i.: What is the relevance to Montfort of the unwritten constitutional principle of respect for and
protection of minorities (from Reference re Secession of Québec)? Are the ∆ directions
reviewable pursuant to the unwritten constitutional principle? Do the ∆’s directions violate the
FLSA?

a.: Appeal dismissed. Case remitted back to Minister. Weiler and Sharpe JJA.: The
unwritten constitutional principle protecting minority interests is a normative consideration; this,
together with the principles that apply to the interpretation of language rights, require that the
FLSA be given a liberal and generous interpretation. By enacting the FLSA, Ontario bound itself
to provide the services offered at Montfort at the time of designation under the Act unless it was

61
"reasonable and necessary" to limit them. Ontario did not offer the justification that it was
reasonable and necessary to limit the services offered in French by Montfort to the community. In
fact it did not consider the minority interest at all. Therefore decision is subject to judicial review.

Administrative Law Principles and Rules – Fall 2003

1. PROCEDURAL QUESTIONS...............................................................................................................................62
1.1. PROCEDURAL FAIRNESS...................................................................................................................................62
1.1.1. C/L Dimensions.........................................................................................................................................62
1.1.1.1. Decisions That Garner No/Limited Procedural Fairness Rights..........................................................................63
1.1.1.2. Decisions That Garner Procedural Fairness Rights.............................................................................................64
1.1.2. Statutory Dimensions................................................................................................................................65
1.1.2.1. Statutory Powers Procedures Act (Ontario).......................................................................................................65
1.1.3. Constitutional Dimensions.......................................................................................................................65
1.1.3.1. Canadian Bill of Rights......................................................................................................................................65
1.1.3.2. Canadian Charter of Rights and Freedoms........................................................................................................66
1.2. DUTY OF FAIRNESS – SPECIFIC CONTENT ISSUES..........................................................................................67
1.2.1. Pre-Hearing Issues...................................................................................................................................67
1.2.1.1. Notice.................................................................................................................................................................67
1.2.1.2. Discovery...........................................................................................................................................................67
1.2.1.3. Delay..................................................................................................................................................................67
1.2.2. Oral Hearings............................................................................................................................................68
1.2.3. Disclosure..................................................................................................................................................68
1.2.3.1. Agency Information............................................................................................................................................68
1.2.3.2. Source of Information.........................................................................................................................................68
1.2.3.3. Commercially Sensitive Information..................................................................................................................68
1.2.3.4. Staff Studies....................................................................................................................................................... 68
1.2.4. Official Notice...........................................................................................................................................69
1.2.5. Deciding Without Hearing.......................................................................................................................69
1.2.5.1. Full Board Meetings...........................................................................................................................................69
1.2.5.2. Ability to Examine Board Members...................................................................................................................69
1.3. BIAS AND LACK OF INDEPENDENCE.................................................................................................................70
1.3.1. Reasonable Apprehension of Bias............................................................................................................70
1.3.1.1. Presence of Bias.................................................................................................................................................70
1.3.2. Institutional Impartiality..........................................................................................................................71
1.3.3. Institutional Independence.......................................................................................................................71
2. SUBSTANTIVE QUESTIONS...............................................................................................................................72
2.1. STANDARD OF REVIEW......................................................................................................................................72
2.1.1. Pre-Pushpanathan.....................................................................................................................................72
2.1.2. Deviations from the Standard....................................................................................................................73
2.1.3. Extending Deference..................................................................................................................................73
2.1.4. Pragmatic and Functional Approach – Pushpanathan..........................................................................74
2.2. REVIEW OF DISCRETION....................................................................................................................................74
2.2.1 The P&F Approach (Case Studies)............................................................................................................75
2.3. CONSTITUTIONAL DIMENSIONS.........................................................................................................................76
2.4. Unwritten Constitutional Principle of Protection of Minorities.....................................................................77

62
1. Procedural Questions
1.1. Procedural Fairness – principles of procedural fairness and natural justice: (i) audi alteram
partem (listen to the other side) and (ii) unbiased, independent decision-maker.

1.1.1. C/L Dimensions

From Knight/Baker, 5 factors to determine if the initial threshold for procedural protections are
met:
(1) Nature of interest at stake – a more serious interest (personal liberty, property, Charter
right) requires greater protection.
(2) Circumstances under which authority may take action – less protection where decisions
are polycentric, discretionary and policy-based, than trial-type “Who did what to whom”
questions.
(3) Character of decision-maker – general no protection for Ministerial, legislative, preliminary
decision makers.
(4) Seriousness of consequences – the degree of the loss (complete as opposed to partial)
(5) Statutory indicia – does the statute indicate greater procedures? Ability to appeal may
preclude a hearing at first instance (Nicholson) while lack of an appeal may oblige greater
protections (Baker).

From Baker, must first consider 5 factors to determine the content of duty of fairness:
(1) Nature of the Process – closeness of administrative process to judicial process indicates
degree of duty (e.g. "Who did what to whom?" judicial application of law to facts as opposed to
policy-related, polycentric and discretionary decisions);
(2) Nature of the Statutory Scheme – i.e. legislative indicia (e.g. purpose of Act, presence or
absence of appeal);
(3) Importance of Decision to Individual(s) Affected – serious interest, large impact of loss of
interest indicative of greater procedural protections;
(4) Legitimate Expectations – for certain procedures or results create extensive procedural
rights, but not substantive rights;
(5) Choices of Procedure by Agency – do the procedures already in place satisfy the
requirements for procedural fairness? Context will often determine the extent of the procedural
rights: hearings (written or oral) and requirement of reasons for decision (Baker at 9)

After Nicholson, no need to distinguish between judicial, quasi-judicial and administrative

processes in determining requirements for procedural fairness, but some processes left open to
require no fairness at all. In the subsequent jurisprudence (e.g. Dickson J. in Martineau), it was
made clear that only where the old classification process had been enshrined in statute should the
courts continue to differentiate between judicial and quasi-judicial functions, on the one hand,
and administrative functions on the other. (The threshold for the application of the Ontario SPPA
can be seen as an example of where traditional classification is still necessary - Webb)

63
1.1.1.1. Decisions That Garner No/Limited Procedural Fairness Rights:
 Legislative decisions (Martineau, Knight at 4);
o reassigning students within a school board (Vanderkloet at 7);
o applying for qualified right of subsidized housing (Webb) (“privilege” seeker);
o no legitimate expectation to prevent Parliament from introducing legislation (re
Canada Assistance Plan at 12)

 Ministerial decisions on broad grounds of public policy (Martineau);

o GIC decision on polycentric problem (Inuit Tapirisat at 6);
o setting of quota policy for chickens (Canadian Association of Regulated
Importers at 7);
o no legitimate expectation to prevent Parliament from introducing legislation (re
Canada Assistance Plan at 12)

 Preliminary/non-final decisions (Knight at 4);

o investigative decisions that do not affect rights (Dairy Producers’ at 11)
o investigation into unlawful trade practices (Irvine at 11)

1.1.1.2. Decisions That Garner Procedural Fairness Rights:

 Decisions affecting individual rights and property (Cardinal);
o Municipality with statutory power to destroy a house (Cooper at 4)
o refusing to accept K renewal for director of education (office holder at pleasure)
(Knight at 4)
o firing of police constable on probation (office holder at pleasure) (Nicholson at 4)
o municipal by-law de-registering subdivision plan as quasi-judicial (Homex at 6);
o individual chicken quota decisions (Canadian Association of Regulated
Importers at 7);
o eviction from qualified right of subsidized housing (Webb at 8);
o applying for permanent residence status (Baker at 9) (“privilege seeker”);
o applying for hospital privileges with strong statutory indicia supporting fairness
(Hutfield at 8) (“privilege seeker”);
o investigative decisions that affect rights (Dairy Producers’ at 11)
o termination of welfare payments (U.S. Goldberg at 19 but see Mathews at 20 for
limits on procedural fairness for termination of disability benefits)

 Specific administrative decisions (Knight at 4);

o school closings with statutorily authorized procedural guidelines (Bezaire at 7);

 Final decisions (Knight at 4; Hutfield at 8);

o applying for hospital privileges with strong statutory indicia supporting fairness
(Hutfield at 8) (“privilege seeker”);
o close proximity between investigative decision and final decision (Re Abel at 10)

 Legitimate expectations

64
 o Where (1) representations; (2) past practice and (3) nature of the interest at stake
create an opportunity to make representations to a public official in circumstances
in which there otherwise would be no such opportunity (Old St. Boniface at 12)
o Where a previous Minister said that if a hospital moved it would have its license
renewed and where a new Minister made a patently unreasonable decision to deny
the license (Mount Sinai Hospital at 14)
o no legitimate expectation to prevent Parliament from introducing legislation (re
Canada Assistance Plan at 12)
o no legitimate expectations from wording of Convention (Baker)

 Public Law Estoppel

o Estoppel may be available against a public authority, but the requirements for it go
well above those for legitimate expectations. The claimant must establish reliance
on the representation and that he acted on it or in some way changed his position.
However, must be sensitive to factual and legal context. If statutory decision
maker has high status and broad power, estoppel will not apply (Mount Sinai
Hospital at 14)

1.1.2. Statutory Dimensions

1.1.2.1. Statutory Powers Procedures Act (Ontario) (at 21)
(1) Prevails over all other Acts (prior and subsequent) unless express legislative override (s. 32)
(2) Application: (i) to a proceeding of a tribunal in exercise of statutory power of decision
conferred by or under an Act of Legislature (primary and subordinate (regulations) legislation)
that requires tribunal to hold a hearing [s. 3(1)] (ii) tribunal requires a hearing “otherwise by law”
(C/L – prior to Nicholson) [s. 3(2)].
(3) If tribunal’s rules made under s. 25.1 deal with pre-hearing conferences, the tribunal may
direct the parties to engage in such conferences [s. 5.3(1)]
(4) If tribunal’s rules made under s. 25.1 deal with disclosure, the tribunal may order for (a) the
exchange of documents, (b) oral/written examination of a party, (c) exchange of witness
statements, (d) provision of particulars, (e) any other form of disclosure, at any time before
hearings are complete [s. 5.4(1)]
(5) Where good character of party is in issue, party is entitled to reasonable info regarding
allegations prior to the hearing [s. 8].
(6) A tribunal may take judicial notice facts [s. 16]
(7) A tribunal must give written reasons for a decision if requested by any party [s. 17(1)] (only
apply Baker if SPPA does not apply).
(8) S. 25(1) – an appeal from a decision of a tribunal to a court operates as a stay in the matters
unless tribunal says otherwise or unless there is a provision in the empowering Act that states that
an appeal does not act as a stay. S. 25(2) – An application for judicial review is not considered an
appeal under s. 25(1). Must then make an application to the court for a stay of the proceedings.
(9) A tribunal has the power to determine its own procedures and make rules governing the
practice and procedures before it [s. 25.1]

1.1.3. Constitutional Dimensions

1.1.3.1. Canadian Bill of Rights – S. 1(a) provides for observance of "due process of law" when
the right to "life, liberty, security of person and the enjoyment of property" is at stake. S. 2(e)

65
calls for a "fair hearing" in accordance with the "principles of fundamental justice" whenever a
person's "rights and obligations" are being determined.
 S. 2(e) of the BOR does not apply to the GIC (Cabinet) decisions (NAPO at 14)
 S. 2(e) applies to the human rights process (McBain at 38)
 S. 1(a) of the BOR only provides procedural rights (notice and representations) with
regards to the right of enjoyment of property only in context of adjudication of such rights
before a court/tribunal, but not where government unambiguously legislates to completely
eliminate such rights. S. 2(e) only guarantees the fundamental justice of proceedings
before any court/tribunal/administrative body that determines individual rights and
obligations; it does not apply to Parliament while it is enacting legislation. The BOR does
not provide substantive rights. (Authorson at 15)

1.1.3.2. Canadian Charter of Rights and Freedoms – s. 7 provides that no one will be deprived of
“life, liberty or security of the person” unless in accordance with the principles of fundamental
justice.
 s. 7 of the Charter has both procedural and substantive guarantees (Re BC Motor Vehicle
Act). It entitles one to know the case to be met (Singh at 16, Suresh at 20), to make
written submissions (Suresh at 20) [orally where credibility is in issue – Singh at 16], and
to receive reasons (Suresh at 20).
 Administrative tribunals can determine constitutional issues within their jurisdiction
(Paul, Martin at 16)
 “Life, liberty and security of the person” are 3 distinct and separate interests and each
must be given meaning. “Security of the person” must encompass freedom from the threat
of physical punishment or suffering as well as freedom from actual punishment/suffering.
To deny a refugee convention status when there is a threat to one’s life or freedom if
deported from Canada is a deprivation of security of the person. To deny access to
Ministerial policies and information concerning a refugee’s application for Convention
status, when the applicant must demonstrate that the Minister was wrong in denying such
status, makes one unable to know the case to be met, which accordingly this violates
fundamental justice. Administrative convenience is not a justifiable s. 1 limit to the rights
under s. 7. (Singh at 16)
 “Security of person” engaged when there is state interference with bodily integrity
(criminal sanction) and serious state-imposed psychological stress (e.g. regulating
abortion– Morgentaler [1988]). Two requirements: (1) the psychological harm must be
state imposed; (2) psychological prejudice must be serious. S. 7 does not create a
constitutional right to dignity, however human dignity/reputation is an underlying value
that must guide the courts in interpreting the Charter. (Blencoe at 17)
 “Liberty” is engaged in narrow circumstances where state compulsion/prohibitions affect
important and fundamental life choices that go to the core what it means to enjoy
individual dignity and independence (ex. Parental decisions regarding medical care for
their children [B(R)]; where a municipal worker can establish his/her home [Godbout];
the custody of children [G(J)]; right to choose one’s occupation and where to pursue it
[Wilson at 17 – now of questionable authority]). This does not include economic liberty
or economic security (Blencoe at 17)
 Where a Convention refugee has made a prima facie case of risk of torture upon
deportation – entitled to the following procedures in accordance with his/her right of

66
 fundamental justice under s. 7 of the Charter: 1. ∏ must be know case to be met. This
includes material which Minister bases decision on (subject to reduced disclosure for
safeguarding confidential public security documents); 2. There must be an opportunity to
respond to the case presented by the Minister. Written submissions must be accepted from
the subject of the Minister’s order after the ∏ has been provided with an opportunity to
examine the material being used against him; 3. Minister must then consider the
submissions and provide written reasons for decision. They must rationally sustain a
finding that there are no substantial grounds to believe that ∏ will be subject to torture,
execution or other cruel/unusual punishment if deported. Minister must also outline,
subject to valid legal reasons for non-disclosure, why the refugee is a danger to the
security of Canada. The Minister must make the written decision herself. (Suresh at 20)

1.2. Duty of Fairness – Specific Content Issues

1.2.1. Pre-Hearing Issues
1.2.1.1. Notice – (1) problems about form, (2) problems about the manner of service, (3)
problems about time, (4) problems about the contents.
 Where there are indefinite interested parties, public notice (in newspapers of wide
circulation) is required (Re Hardy at 22); However the notice must be clear enough that
the majority of those who may be affected are effectively made aware (Re Central
Ontario Coalition at 22). Notice of hearing must be given far enough in advance to allow
time to prepare. The content of a notice must provide sufficient information to indicate to
the party served what is at stake at the hearing (Ontario Racing Commission at 22)
 Regarding Commissions of Inquiry, notices should be as detailed as possible, even if
content appears to amount to a finding that would exceed jurisdiction of Commissioner
(this limit only applies to final report). There is no statutory requirement that
Commissioner give notice as soon as foresee possibility of allegation of misconduct.
Where evidence is extensive/complex, may be impossible to give notice before end of
hearings, and vice versa. So long as adequate time is given to make submissions in
response to notice, delivery of notices late in hearings will not constitute unfair procedure.
(Krever Commission at 22)

1.2.1.2. Discovery
 SCC ruled that Canada Labour Code did not empower Labour Relations Board to order
pre-hearing discovery (Canadian Pacific Airlines at 23)
 SPPA s. 5.4(1) allows full disclosure only if tribunal has established rules under s. 25.1.
 Apply criminal rules of Stinchcombe to Ontario HR tribunals – full disclosure of Board
of Inquiry’s pre-hearing discovery justified to eliminate element of surprise and since
fruits of investigation are public property (Northwestern General Hospital at 23)
 However, tribunal that has an economic regulatory function (in the public interest) that
does not affect human rights in a way akin to criminal proceedings will only need to
provide information such that accused can meet its case if, in pursuing its mandate, the
board/tribunal is required to receive confidential information from its staff/investigators
(CIBA-Geigy at 24)

1.2.1.3. Delay

67
  In determining whether a delay is so unreasonable as to breach a duty of fairness, but
consider and weigh the following factors to determine if there has been an “unreasonable
delay” in context of s. 7 of the Charter: (1) whether delay is prima facie unreasonable,
having regard of time requirements inherent to such proceedings; (2) reason/responsibility
for delay – conduct of complainants, Commission, alleged discriminator; inadequacy of
resources; (3) prejudice caused to alleged discriminator by delay (adapted from SCC
decision in Rahey) (Kodellas at 25)
 There must be proof of significant prejudice which results from the delay for there to be a
C/L remedy. It must be a delay that has caused significant psychological harm to a person,
or attached a stigma to a person’s reputation such that the HR system would be brought
into disrepute. Whether delay results in breach of duty of fairness depends on nature of
case, facts and issues, purpose and nature of proceedings, whether  contributed to delay;
contextual factors, like nature of the various rights at stake, must also be considered to
determine if community’s sense of fairness would be offended by delay. (Blencoe at 17)

1.2.2. Oral Hearings

 Recall that a claim for an oral hearing is highest when credibility is an issue in the
proceedings (Wilson in Singh at 16), and also when BOR or Charter is invoked (Beetz in
Singh at 16; Suresh at 20).
 In employment context, must look at nature of employment, the nature of the decision
(broad policy or individualistic), nature of investigatory procedures (e.g. reliance on
directives), and availability of opportunity to make representations.
o Where someone is an office holder at pleasure who has the ability to respond in
writing, an oral hearing is not required (Masters at 26)
o A university law student, whose credibility is in issue concerning whether she
wrote a 4th exam booklet, is entitled to an oral hearing (Khan at 26)

1.2.3. Disclosure
1.2.3.1. Agency Information
 Rules of natural justice apply to proceedings before the WCB and Commissioners and
require full disclosure of the contents of a worker’s file (medical files included). (Re
Napoli at 27)

1.2.3.2. Source of Information

 In circumstances where application of rules of procedural fairness would endanger the
lives of informants, the obligation of those rules to give more detailed notice do not apply.
It is sufficient to provide the ‘gist’ (or outline) of the accusations against an inmate.
(Gallant at 28)
 However a parolee on the least restrictive form of parole is entitled, under s. 7 principles
of fundamental justice, to disclosure of information relied upon in a decision to revoke
his/her parole (not simply the ‘gist’ of the allegations), unless there is ample evidence
justifying the restriction under s. 1 that disclosure would reveal the identity of the
informers or that there was a probability that their safety would be threatened, or that the
parole system would be undermined (Gough at 28)

1.2.3.3. Commercially Sensitive Information

68
  Where disclosure requires the release of commercially sensitive information, it will be
disclosed to an outside expert who will assess the information in confidence (Canadian
International Trade Tribunal Act at 29)

1.2.3.4. Staff Studies

 tribunals exercising economic regulatory function in public interest that do not affect
human rights in a way akin to criminal proceedings are entitled to benefit of confidential
communication with staff (CIBA-Geigy at 30)
 staff papers prepared for a board/tribunal prior to hearing need not be disclosed. However,
if information in staff papers (made prior to a hearing) is available to decision makers and
is not brought forward in another form at tribunal, principles of procedural fairness are
breached (Toshiba Corporation, Trans-Quebec & Maritimes Pipeline Inc. at 30)
 A report that would clearly be relied upon and given significant weight by the
Commission in determining whether there were legal means to bring suspected war
criminals to justice in Canada was required to be disclosed (War Criminals Commission
at 30).

1.2.4. Official Notice

 SPPA (s. 16) – incorporates into rules of tribunal proceedings (a) the rules of judicial
notice; (b) allowance of tribunal to take notice of any generally recognized scientific or
technical facts, information or opinions within its scientific or specialized knowledge
[expectation of panel members to apply ‘wisdom’ of their expertise].
 When OMB takes judicial notice it should be obliged to inform the parties that it will be
doing so and allow a response (Township of Innisfil – Ont. Div. Ct. at 30)
 Refugee Division to take notice of facts, information or opinion, other than facts that may
be judicially noticed, in any proceedings as long as it notifies the Minister and the person
subject to the proceedings (Immigration Act s. 68(5) at 30)

1.2.5. Deciding Without Hearing

1.2.5.1. Full Board Meetings
 The rules of natural justice are not violated if an adjudicator who heard evidence speaks
with others who did not hear evidence (non-hearers) so long as: (1) the discussions do not
induce him/her to decide against his/her own conscience or opinion. (2) the discussions
with non-hearers focus on policy or legal issues surrounding the case; but is violated if
discussions focus on factual issues surrounding the case, and any new evidence or
grounds raised in discussions with non-hearers are (i) not reported to the parties and (ii)
are not given a chance to respond. (Bathurst at 31)
 No Violation of Natural Justice
o Where a Labour Relations Board meets as a full Board to discuss broad policy
implications of panel decisions (there is no voting and no minutes taken) and there
is no evidence that facts were discussed or that the discussions induced panel
members to decide against their will (Bathurst at 31)
o A change in reasons for a decision is not evidence that the full Board discussed
questions of fact and not questions of law or policy (which, on its face, was shown

69
 in evidence). Without further evidence, must presume administrative regularity.
(Ellis-Don at 33)
 Violation of Natural Justice
o Where there is compulsory consultation in the form of ‘consensus tables’ called by
the President or legal counsel (when a decision is contrary to previous decisions of
Board) the purpose of which is to come to a consensus on a decision by
commissioners (voting by show of hands, minutes kept) and President invites
commissioners to reconsider their decision. (Trembley at 32)

1.2.5.2. Ability to Examine Board Members

 Cannot examine Labour Board members because such a practice would cause a chilling
effect on institutional consultations, and the removal of a means of achieving consistency
in decisions. (Ellis-Don at 33)
 In HR tribunal context, the right to conduct the examination of tribunal members had to
be balanced against the principle of deliberative secrecy. A HRC that deliberates in the
presence of non-members (staff), rather than in private, are more exposed to judicial
review. Examination allowed but scope limited to a ground justifying judicial review.
(Payne at 34)

1.3. Bias and Lack of Independence

1.3.1. Reasonable Apprehension of Bias
Test for bias – More flexible approach to bias in an administrative setting (Energy Probe at 36).
Apply the 5 Baker factors to determine the degree of bias that is acceptable in the specific
context of the administrative agency. Then ask: “would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude. (Committee for
Justice and Liberty).
 A reasonable apprehension of bias on the part of anyone who played a significant role in
the actual deportation decision under the Immigration Act would lead to a quashing of the
relevant decision (Baker at 35). May apply to other tribunals?
 In order for there to be an apprehension of bias attributed to members of an elected
Municipal Council (Old St. Boniface at 40, Save Richmond at 41) or a Board which
performs a policy-formation function (Nfld. Telephone at 41) it must be shown that the
member had a “closed-mind” incapable of persuasion.
 Statements manifesting a closed mind, even at the investigatory stage, constitute a basis
for raising apprehended bias.  Once the matter reaches the hearing stage a higher standard
must apply (e.g. no apprehension of bias) (Nfld. Telephone at 41).

1.3.1.1. Presence of Bias

 Basing a deportation decision on irrelevant factors (∏ being single mother of many
children; was psychologically ill and therefore would be a burden to Canada) while not
considering relevant factors (doctor indicated ∏ would be productive member of society
with treatment) raises a reasonable apprehension of bias (Baker at 35).
 The appearance of influence of other Board members during a “consensus meeting”, as
well as having the Board President first recommend to the commissioners to reconsider
their decision and then become the decision maker himself, creates an apprehension of
bias (Trembley at 32)

70
  Where the operational structure of a tribunal allows jurists to act both as prosecutor and
adjudicator, and allows a director to act both as investigator and adjudicator, a reasonable
apprehension of bias is justified (Quebec Regie at 37)
 Requiring a HR commission, by statute, to “prove” a complaint before selecting the
members of a tribunal who will consider whether the complaint was “proven” raises an
apprehension of bias. Empowering a commission, by statute, to select the members of a
decision-making tribunal which will hear a case in which the commission itself will be the
prosecutor raises an apprehension of bias; both are contrary to s. 2(e) of the BOR
(“determination” of “obligations” within “principles of fundamental justice”). (MacBain
at 38)
 A reasonable apprehension of bias arises when an individual who is an appointed
adjudicator for a Commission becomes a personal party to a complaint pending in the
same Commission. (Great A&P Co. at 39)
 If Municipal councillor has a private interest in a matter, that person is disqualified if the
interest is so related to the exercise of public duty that a reasonably well-informed person
would conclude that it might influence the exercise of that duty (Old St. Boniface at 40)

1.3.1.2. Absence of Bias

 A board member with a potential pecuniary interest in the approval of a nuclear plant
license is not disqualified. There must be a real connection between the board decision
and the interest of the member (Energy Probe at 35)
 Where a statute authorizes a Chairmen of a Securities Commission to act as both an
investigator and adjudicator (which normally gives rise to bias) there is no bias absent a
constitutional objection (Brosseau, E.A. Manning at 36)
 An apprehension of bias against some Commissioners of a Securities Commission does
not lead to the “corporate taint” of other Commissioners, who are presumed, in the
absence of any evidence to the contrary, to act fairly and impartially in discharging their
adjudicative responsibilities (E.A. Manning at 36)
 For there to be disqualifying bias of a Tenure Committee on which sat a member who
submitted an unfavourable assessment of a candidate, the candidate must demonstrate
“manifest unfairness” or “flagrant violations of procedural fairness.” (Paine at 39)
 A Board chair may take a public position on a public issue related to the nature of the
Board so long as it is not an issue immediately before the Board. (Large at 40)
 A Municipal Alderman who says publicly that it would take “something significant” to
change his mind on a re-zoning issue does not have a closed mind (Save Richmond at 41)

1.3.2. Institutional Impartiality

A lack of impartiality at the institutional level can be raised if a reasonable apprehension of bias
arises in the mind of a fully informed person in a substantial number of cases (Matsqui at 43)
 Two-step test: (1) having regard for a number of factors, but not limited to, the nature of
the occupation and the parties who appear before this type of judge, will there be a
reasonable apprehension of bias in the mind of a fully informed person in a substantial
number of cases? (2a) If no, allegations of bias cannot be brought at an institutional level
but must be dealt with on case-by-case basis. (2b) If yes, the occupation is per se
incompatible with the function of the judge – but must consider the sufficiency of

71
 safeguards to minimize such prejudicial effects to determine if they meet the guarantee of
impartiality under s. 11(d). (Alex Couture Inc. at 43)
o The fact that Native Band members serving on appeal tribunals assessing taxation
by-laws does not raise an apprehension of institutional bias. An apparent
pecuniary interest these members may have in increasing Band revenues is too
remote (Lamer CJC: Matsqui at 43)

1.3.3. Institutional Independence

Test for lack of independence – what would an informed person, viewing the matter realistically
and practically – and having thought the matter through – conclude (Alex Couture Inc. at 43)
 Three conditions must be met – (1) Security of tenure (against interference by executive
or other appointing authority in an arbitrary manner – most important), (2) Financial
security (against arbitrary interference by the executive) and (3) Institutional
independence with respect to administrative decisions bearing directly on the exercise of
judicial functions (independence from government). (Alex Couture Inc. at 43)
o The introduction of a Bill that will dissolve the Immigration Appeal Board (IAB)
and replace it with the Immigration and Refugee Board (IRB), and thus create job
insecurity for IAB members, does not create a lack of independence of IAB
members since no informed, right minded person would conclude that members of
IAB would think that rejecting applications would please the government (and
ensure they are re-hired to the IRB) (Sethi at 42)
 The essential conditions of institutional independence in the judicial context need not be
applied with the same strictness in the case of administrative tribunals. Conditions of
institutional independence must take into account their operational context. The
reasonable person, before making a determination of whether or not he or she would have
a reasonable apprehension of a lack of institutional independence, should have the benefit
of knowing how the tribunal operates in actual practice (Sopinka J.: Matsqui at 43).
 Security of tenure does not require appointment for life. Fixed-term appointments, which
are common, are acceptable. However, the removal of adjudicators must not simply be at
the pleasure of the executive – dismissal by executive for certain reasons, along with right
to contest wrongful dismissal in court are satisfactory. Large number of points of contact
between the board and the executive does not raise a reasonable lack of institutional
independence so long as decision making lies with the board. The fact that a Minister is
ultimately responsible for the Board does not infringe institutional independence (Quebec
Regie at 45)
 NOTE: Tenure, salary, administration are guidance points to determining independence or
impartiality and that lack of one may not necessarily be fatal for the tribunal.

72
2. Substantive Questions
2.1. Standard of Review
2.1.1. Pre-Pushpanathan
 Judicial review for jurisdictional error is a constitutional guarantee. Interpretation of ss.
96-101 the Constitution Act, 1867: given the necessity of an independent/impartial
judiciary, there is little point in having that if Parliament can empower a tribunal to
become the final arbiter of its jurisdiction, which was, at the time of Confederation, the
role of the superior courts. This applies to the provinces, and in subsequent jurisprudence
to the federal government (Crevier at 45)
 Examples of jurisdictional error include: acting in bad faith, basing the decision on
extraneous matters, failing to take relevant factors into account, breaching the provisions
of natural justice or misinterpreting the provisions of the Act so as to embark on an
inquiry or answer a question not remitted to it (New Brunswick Liquor at 46)
 Must ask "Did the legislator intend such a matter to be within the jurisdiction conferred
on the tribunal?” Now use pragmatic and functional analysis. First stage of the analysis
involves determining the tribunal's jurisdiction.  To do this, Court examines (1) wording
of the enactment conferring jurisdiction on the administrative tribunal, (2) purpose of the
statute creating the tribunal, (3) the reason for its existence, (4) the area of expertise of its
members and the (5) nature of the problem before the tribunal (Bibeault at 46)

2.1.2. Deviations from the Standard

 When tribunals are acting under a privative clause the SCC has limited the power of
review to cases of patent unreasonableness (Nipawin). Where there is no privative clause,
deference will be given on questions of law only to certain specialized tribunals. HR
tribunals are not such specialized tribunals, therefore deference will only be given to
questions of fact, not law (Mossop at 47)
 Where the relevant provision is a true privative clause, judicial review is limited to errors
of jurisdiction resulting from an error in interpreting a legislative provision limiting the
tribunal's powers or a patently unreasonable error on a question of law. Other forms of
clauses may also have privative effect.  Wording such as "final and conclusive" may be
found to restrict review to matters of jurisdiction if the court concludes that the legislator
clearly intended that the decision should be immune from review in the absence of an
error as to jurisdiction. In this analysis a court should consider the clause in light of the
(1) purpose, (2) nature and (3) expertise of the tribunal in question (Bradco at 48)

2.1.3. Extending Deference

 Where there is a specialized tribunal that is deciding a question of law on a matter that
goes to the core of its expertise (e.g. securities commission interpreting the Securities
Act), significant deference should be granted to its decisions notwithstanding the facts that

73
 there was a statutory right of appeal and that there was no privative clause (Pezim at 49).
Note this was prior to introduction of standard of reasonableness simpliciter.
 Standard of reasonableness simpliciter - A standard more deferential than correctness
but less deferential than "patently unreasonable" is required when several considerations,
including particularly the expertise of the Tribunal, counsel deference while others
suggest a more exacting form of review (no privative clause, right to appeal). An
unreasonable decision is one that, in the main, is not supported by any reasons that can
stand up to a somewhat probing examination. The difference between "unreasonable" and
"patently unreasonable" lies in the immediacy or obviousness of the defect.  If the defect
is apparent on the face of the tribunal's reasons, then the decision is patently
unreasonable.  But if it takes some significant searching or testing to find the defect, then
the decision is unreasonable. (Southam at 50)
 There are only three standards for judicial review of administrative decisions: correctness,
reasonableness simpliciter and patent unreasonableness. Additional standards should not
be developed unless there are questions of judicial review to which the three existing
standards are obviously unsuited.  The P&F approach will determine, in each case, which
of these three standards is appropriate. The reasonableness standard does not float along a
spectrum of deference such that it is sometimes quite close to correctness and sometimes
quite close to patent unreasonableness – were this so it would require that the court ask
different questions of the decision depending on the circumstances (Ryan at 51)
 Satisfying reasonableness simpliciter: If any of the reasons that are sufficient to support
the conclusion are tenable in the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable and a reviewing court must not
interfere. This means that a decision may satisfy the standard if it is supported by a
tenable explanation even if this explanation is not one that the reviewing court finds
compelling. (Ryan at 51)

2.1.4. Pragmatic and Functional Approach – Pushpanathan at 53

P&F approach for determining standard of review. Consider the following factors:
(1) Presence/absence of legislative indicia: presence of full privative clause compels court to
show deference to tribunal’s decision, unless other factors show to contrary. Less than full
clauses mean less deference. Presence of appeal compels court to show less deference;
(2) Expertise of the agency: most important factor. It is relative concept. Court must
characterize expertise of tribunal; it must consider its own expertise relative to tribunal; it must
identify nature of specific issue before tribunal relative to this expertise. High relative expertise
suggests higher deference even on generalized interpretation of tribunals empowering statute;
(3) Purpose of Act and of Provision: where purpose of statute and decision maker are focused
on delicate balancing between different constituencies (polycentricity) and not establishing rights
between parties, more deference. Where issues dealt with are less strictly “legal” and more in line
with policy, more deference;
(4) Nature of problem: generally less deference on questions of law rather than fact.

2.2. Review of Discretion

 C/L grounds of judicial review for abuse of discretion are: decision maker acted in bad
faith, wrongfully delegated its powers, fettered its discretion by laying down a general
rule and not responding to individual situations, or acted under the dictation of another.

74
  More common grounds are when an agency has exercised discretion to achieve a purpose
not contemplated by its grant, or when irrelevant factors are considered or relevant factors
are excluded (e.g. considering fact that woman is single mother with many children, has
mental disorder and is likely a burden on society are patently irrelevant factors in
assessing an application for permanent residence – Baker; not considering expertise and
experience when appointing individuals to be labour arbitrators is a patently unreasonable
decision – CUPE v. Ontario; factors in Re Sheehan at 58 are not patently irrelevant)
 Can apply the P&F approach to discretionary decisions, but must not engage in a re-
weighing of the factors considered (Baker, Suresh at 56)

2.2.1 The P&F Approach (Case Studies)

(1) Presence/absence of legislative indicia:
 Strong privative clause – deference (New Brunswick Liquor at 46); (CUPE v. Montreal
at 52); CUPE v. Ontario at 57;
o The words “final settlement” in conjunction with statutory purpose promoting
privative nature of labour decision – deference (Bradco at 48)

 Weak privative clause – less deference (Mattel at 55)

 No privative clause – less deference (Southam at 50; Pushpanathan at 53; Trinity at 54;
Baker at 56;) Exception: see Pezim at 49 (note prior to standard of reasonableness
simpliciter in Southam)

 Right of appeal – less deference: Pushpanathan at 53; Mattel at 55; Exception: see
Pezim at 49 (note prior to standard of reasonableness simpliciter in Southam); Ryan at
51.

 Absence of appeal – deference

 Appeal only with leave – deference (Suresh at 56)

(2) Expertise of the agency (most important factor – Southam at 50):

Deference
 “Field sensitivity” with experience can lead to more expertise (Mossop at 47)
 Interpretation/application of collective agreement to facts by labour arbitrator (Bradco at
48)
 Interpretation of Securities Act by Securities Commission (Pezim at 49)
 Competition Tribunal (Southam at 50)
 Labour Council applying appropriate remedies under the Labour Code (CUPE v.
Montreal at 52)
 Canadian International Trade Tribunal expertise in some economic, trade or commercial
matters (Mattel at 55)
 Minister as decision maker (Baker, Suresh at 56); (CUPE v. Ontario at 57)

Less Deference

75
  IRB with less than 10% lawyers deciding if an applicant is a Convention (Pushpanathan
at 53)
 College of Teachers not only policy makers and have no expertise to interpret HR and
balance competing interests (Trinity at 54)

(3) Purpose of Act and of Provision:

Deference
 Polycentric balance of interests
o The goal of mandatory arbitration is to arrive at an efficient and cost-effective
manner of resolving disputes (Bradco at 48)
o Balancing the right to strike under the Labour Code with the service entitlements
in HR and social legislation (CUPE v. Montreal at 52)
 Application of broad legal legal principles to “exempt” someone from a provision of the
Immigration Act pertaining to the application for permanent residence (Baker at 56)
 Complex commercial/economic issues in Competition Act (Southam at 50)
 Regulation of lawyers in NB Law Society Act (Ryan at 51)
 Where Immigration Act requires humanitarian balancing of the danger posed to
Canadians and the danger of persecution upon deportation (Suresh at 56)
 Ensuring that public schools develop civic and responsible citizenship and create an
environment free of bias, prejudice and intolerance under the Teaching Profession Act
(Trinity at 54)
 Determining duties on imported goods under Customs Act (Mattel at 54)
 Fundamental purpose and object of HLDAA was to provide an adequate substitute for
strikes and lock-outs and to ensure the parties perceive the system as neutral and credible
(CUPE v. Ontario at 57)

Less Deference
 Decision that affects individual rights (Baker at 56)
 IRB not engaged in any significant policy making (Pushpanathan at 53)
 Municipal procurement decision that focuses on influencing political events outside its
geographical boundaries (apartheid South Africa) contrary to purpose of Municipal Act
(Shell Canada at 59)

(4) Nature of problem:

 Question of fact – deference to: HR tribunals (Mossop at 47); Law Society Discipline
Committee (Ryan at 51); Minister making decision on humanitarian & compassionate
grounds (Baker at 56); Minister deciding whom to appoint as labour arbitrators (CUPE v.
Ontario at 57)

 Question of law – no deference to: Labour tribunal interpreting the Civil Code concept of
‘alienation’ (Bibeault at 46); HR tribunals (Mossop at 47); IRB answering “serious
question of law” (Pushpanathan at 53); College of Teachers applying HR values and

76
 principles (Trinity at 54); International Trade Tribunal deciding interpreting commercial
law (Mattel at 54)

 Question of law – deference to: certain specialized tribunals (Mossop at 47)

o e.g. securities commission (Pezim at 49);

 Question of fact & law – deference to Labour Council where issue fall within their
expertise (CUPE v. Montreal at 52).

2.3. Constitutional Dimensions

(1) Just because a section in an Act has capacity to be invoked or used in ways that violate the
Charter does not mean that section is constitutionally invalid (attack is on exercise of discretion
in the particular circumstances). (2) Section 1 justifications can be advanced with respect to
discretionary violations and not just statutory violations (effectively eliminates “prescribed by
law” from s. 1). (3) Given the heavy burden on government to provide a s. 1 justification of the
discretionary decision, once that onus is met no one can then argue that, notwithstanding the s. 1
justification, the exercise of discretion was patently unreasonable (Slaight at 60)

2.4. Unwritten Constitutional Principle of Protection of Minorities

The unwritten constitutional principle protecting minority interests is a normative consideration;
this, together with the principles that apply to the interpretation of language rights, require that
the FLSA be given a liberal and generous interpretation. By enacting the FLSA, Ontario bound
itself to provide the services offered at Montfort at the time of designation under the Act unless it
was "reasonable and necessary" to limit them. Ontario did not offer the justification that it was
reasonable and necessary to limit the services offered in French by Montfort to the community. In
fact it did not consider the minority interest at all. Therefore decision is subject to judicial review.
(Lalonde at 60)

77