Professional Documents
Culture Documents
- create a new legal framework, administered by some agency, other than the courts of law after
an identification of a problem not addressed by the operation of the market or private law (3)
- nearly all public programs originate with a statute enacted by either the provincial or feds
legislature to create new legal rights and duties
Independent Admin Agencies > (1) independence from govt (sort of), (2) those liable to be
affected by a decision are given an opportunity to participate in the decision making process, (3)
admin agencies typically operate where the public program is applied to the individual, (4) they
are specualized (12-15)
Independent Admin Agencies over Courts? > (1) decisions made would be inappropriate for
Courts, (2) decisions made by people with expertise other than judges, (3) claims involve small
sums of money, thus no need to clog courts, (4) more informal = expeditious
Grounds for Review > (1) Procedural Impropriety: must give prior notice or opportunity to
respond, (2) Illegality, (3) Unreasonableness, (4) Unconstitutionality
Judicial Review and Charter of Rights > arguable that adequate access to JR is a requirement
of the principles of fundamental justice for the purpose of s7 – “life, liberty, sec of person”
Legitimate expectations: depends whether statute affords one over and above normal. In Baker,
she had a chance to put forward in writing her position, thus
Participatory rights: individuals affected should have reasonable opportunity to give evidence to
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support case – here, she had the opportunity in writing as oral hearing is not mandatory in H&C
decisions
Apprehension of bias: would reasonable person think decision made unfairly with bias? In Baker,
there was bias based on what Officer wrote
Discretionary decision-making (ie. where decision maker (eg Minister) is given statutory
authority to make exceptions)
-decision must be made within bounds of statute, however considerable deference
will be give to decision maker
Standard of review
Pragmatic and Functional Approach (Pushpanathan): considers several factors as to whether
administrative decision should be judicially reviewed. The more discretion left to a decision
maker, the less courts should interfere – legislature intention primary importance (text pg 76).
Ask:
1) -is there a privative clause?
2) -what is expertise of decision maker
3) -what is purpose of provision and act as a whole
4) -what is nature of problem in question, and does it relate to question of fact or law. In Baker,
looking and H+C cases, facts of the case are very important. APPEAL ALLOWED based on bias
and he didn’t take children enough into account
In order to determine if procedural fairness applies a court must first consider if the threshold has
been met. If the court finds that there should have been a duty of procedural fairness and it was
not complied with then the decision of the board/tribunal/commission will be quashed.
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- Where unambiguous, the statute will supersede the CL
NOTE: If statute says ‘you must give notice—look to CL to see what adequate notice is; ‘must
give hearing’—look to CL to see what adequate hearing is
STEP 3: Apply the Common Law
Step 1: Is there a right, privilege or interest at stake?
3 factors in assessing whether there was a duty of fairness: Knight (originally from Cardinal):
1) Nature of decision: (Administrative v Legislative OR Final v Interim)
(a) Is the decision ‘final’ or ‘interim’?
- Final/determinative = duty à If JR = final and court can quash decision
- Interim = no duty à Right of Appeal clause = interim
Exceptions:
- Recommendation based on investigation (interim) could lead to a final decision (Re
Abel)
- If recommendation would have minor impact on final determination = no duty of PF
(Dairy Producer’s Co-operative Ltd v Saskatchewan)
b) Is the decision administrative (ie. specific to the person) or legislative (general effect)?
Rule: Look at the nature of the decision itself, and NOT the form of the power being exercised
(Homex)
Consider: (1) Number of people effected (Homex), (2) Nature of who made the decision (Inuit),
(3) Effect of the decision (Homex; School closure cases) and (4) Decision made on broad
grounds of public policy falls short of test
(ii) By-laws:
Rule: if bylaw is directed at one person and it is not of general application, then that by-law will
required a duty of PF; however if by-law directed at everyone = legislative
- Absurd to allow everyone a hearing
- If by-law directed at single person = specific and duty of PF owed (Homex)
- On-going dispute = duty to afford PF (Homex)
Note: If decision is specific and final = duty (Knight- decision final and dealing specifically w
him)
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degree of impact (Bezaire v Windsor Roman Catholic Separate School Board)
- School closures are policy decisions w broad impact on finite grp
View 2: Legislative: b/c it could be considered a general policy decision
2) Government tendering/contracting:
Government tendering demands that all bidders compete on a level playing field in terms of the
call for tenders, and certiorari is available to quash the award of a contract in the event that the
process was flawed
- If public money spent for improper or in improper manner, the conduct of the
municipality should be subject to JR (Shell Canada)
Facts: Vancouver decided not to do business w Shell; reviewable under PF because:
(i) Government not acting purely as private citizen
(ii) Government acting outside of its statutory mandate—disapproval of South African
regime beyond what municipality expected to do
(iii) Although decision not reviewable, decisions should be carried out fairly
2) Nature of relationship between decision-maker and the individual: (not always applicable)
Rule: Most often the relationship is Public Body and Citizen BUT this element acts as a ‘catch-
all’ for thinking about other things that may alter analysis that flows from nature/impact of
decision
If employment relationship:
a) PF applies whenever there is a decision to terminate a public officer whether for privilege
or not
b) Focus on the nature of the employment relationship/ ‘office holders’ (Knight; Dunsmuir)
(i) No K of employment and the office is purely statutory (ie. Minister and Judges) = duty of
PF
(ii) If terms of employment expressly provide for summary dismissal or are silent on the
matter/ employment ‘at pleasure’ = duty to afford PF
(iii) If the terms of appointment confer procedural rights = statutorily based right to PF, but
no CL right
(iv) If the relationship is purely contractual, should be treated in private law-- look at that K
—private employment law will provide for protection for employees through a notice
period (Dunsmuir)
3) Effect of decision on the individual’s rights: it was clearly established that termination of
employment is a significant decision with an important impact
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evidence when the Director seized their sextuplets to give them blood transfusions. In this case
there could be no “interim” decision.
**If only for an interim basis, like most emergency cases, and is open to reassessment in the
context of an explicit provision after the event hearing then DoF will not apply in emergency
situations.
2. Investigatory/Interim Decisions
Rule: An investigation with recommendations that is not a final decision owes no right to PF
BUT if those recommendations are going to have so much weight in the process that it is
effectively the decision then there will be right to PF. In an investigation, the rights, privileges
and interests of a person are usually not in issue.
Report: If it’s a report (and it hasn’t decided anything) and the report affects the reputation of a
person then there may be a duty of PF on the makers of the report. Kriever Commission
Guay v. Lafleur [1965]: G was one of a group of taxpayers whose affairs were under
investigation. He was unsuccessful in being allowed to be present for the questioning of
witnesses.
Re Abel and Advisory Review board [1979]: Persons detained after being found NCRMD were
denied access to the Board’s materials and report. Final decision was made by the lieutenant-
governor. Court found virtually only chance of success applicants had was a positive report.
Persons had a right to assess the reports and materials and recommendations.
3) Legitimate Expectations
-A person who’s interest is affected and has developed a LE that he or she will be accorded
procedural fairness then that person should receive procedural fairness.
-How would a LE arise?
Element 1: Look at past conduct and practices of parties. To form a LE requires a clear
unambiguous and unqualified promise (through words and/or action): It must be clear that
what those were the past practices and procedures were always offered in that manner. E.g.
CUPE (no firm practice in past of ministers appointing form the list. Each minister did it
differently)
Element 2: The expectation cannot conflict with the statutory duty. You cannot change the
statute because of an expectation.
Element 3: The doctrine of legitimate expectations does not give rise to substantive rights. It is
only a source of procedural claims: Reference re Canada Assistance Plan (**Need to find a LE
is a procedure used. i.e. always get reasons. To say they always made the same decision would
be wrong as this is getting into substantive law.)
à Split on if Actual Knowledge or Reliance is required. Furrey said yes but Binnie J in Mtn
Sinai said No.
à Relief is procedural and within the powers of the Admin body Mtn Sinai
CONSTITUTIONAL DIMENSIONS of PF
-see ch 11 analysis re jurisdiction
- Again, we are looking to see whether the ‘procedural’ threshold has been crossed before
we conduct the analysis in Ch 5
STEP 1
Threshold: When the statute explicitly excludes procedural entitlements or is interpreted not to
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allow procedural entitlements, then you can use the Charter or BoR**Statute overrides common
law. Charter or BoR overrides statute!
STEP 2
Once you find that the Charter of BOR applies, you have to find a right that applies
o Charter S.7
o BOR S. 1(a)
o BOR S. 2(e)
BILL OF RIGHTS
STEP 1
- Bill of Rights: matter must be in federal sphere (only applies to federal statute) BUT.... Does
not include Canada’s Business Corporations Act
- Unlike the Charter, the reach of the BOR corresponds generally to that of JR under the Federal
Court Act. Not confined to just the government.
Element 1: Is there a right to life liberty and security (similar to s7 interpretation)? And
Element 2: enjoyment to property? And
Element 3: the right not to be deprived thereof except by due process of the law?
USE Bill of Rights, s. 1(a) for “due process” = procedural fairness (notice, opportunity to
make submissions, some substantive content, property rights)
S2(e) BoR
s2(e): “no law of Canada shall be construed and applied so as to… deprive a person of the
right to a fair hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations”
• Threshold: Person rather than individual (Includes corporation)
CASE EXAMPLE
Does the s2(e) of BOR apply to Cabinet Decisions? In order for s2(e) of the BOR to apply to
cabinet decisions the “rights” and “obligations” must be unique to the person or interveners
bringing the application. If broad application and not specific to you, then wont work : National
Anti-Poverty Organization
It is not enough when someone has an interest in the decision or an interest is being affected:
National Anti-Poverty Organization
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S 2(e) of the Bill applies only to guarantee the fundamental justice of proceedings before any
tribunal or administrative body that determine indvl rights and obligations. >>> It does not
impose on Parliament the duty to provide a hearing before the enactment of legislation.
(Authorson v. Canada (Attorney General) (2002) – interest on veteran pension denied, bill
passed through all necessary readings etc. They argued this went against their ‘enjoyment of
property’ under 1(a))
NB: “Unless the conflicting legislation expressly declares that it operates notwithstanding the Bill
of Rights, the Bill of Rights applies and the legislation is inoperative. The Bill of Rights protects
only rights that existed in 1960, prior to its passage”: Authorson
Charter
s2 everyone has the following rights:
a) freedom of religion
b) freedom of thought, belief, opinion , expression and press
c) freedom of peaceful assembly and association
s7 right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
s 8 Everyone has the right to be secure against unreasonable search or seizure.
s9 Everyone has the right not to be arbitrarily detained or imprisoned.
s 10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if
the detention is not lawful.
s 15 (1) Every individual is equal before the law and has the right to the equal protection and
equal benefit of the law without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Once a violation of a Charter right is found the burden shifts to the Govt to show that the
limitation in justified.
The Oaks Test.
a) Importance of the objective
b) Rational connection between the objective and he means
c) Minimal impairment possible.
STEP 1
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Must involve state action:
Because of applying only to governmental action, does not cover same scope as judicial review
(or Bill of Rights in federal sphere):
STEP 2
ESTABLISHING A RIGHT UNDER CHARTER
S7: Everyone has the right to life, liberty and security of the person, and the right not to be
deprived thereof except in accordance with the principles of fundamental justice
• S7 is the principle source of procedural protections (Also has a substantive
component)
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Three differences b/w BOR and the Charter S.7:
The use of the term “individual” and “person” in BOR, as opposed to “Everyone” in Charter
-Everyone includes corporations
-Whether corporations is included in the BOR has yet to be definitively be determined
-The inclusion of enjoyment of property in BOR
-S.7 does not include protection for property rights
-c. The attachment in s. 2(e) of procedural protections to the “determination of rights and
obligations”
CH 5: THE CHOICE OF PROCEDURES – see ch3 (what procedures are required to make
decision process fair, the courts have flexibility in determining the procedural requirements- full
hearing to written submissions)
- once it has been est that the threshold for PF has been met, it is necessary to determine the
content of procedural fairness based on the 5 Baker factors as applied in Suresh to help us
determine how much procedural fairness should be required
CONCLUDE a
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LOW - meting, informal, reasons, right to be hear in some way
MED - written subs, right to heard in some way
HIGH -full court procedural, oral, legal rep,
range of PF should be Applied.
Once you determine, based on the 5 factors, how much PF should be required, you apply
this standard to the CONTENT of PF below – see if any of the “content” below has
occurred
Discovery
The Stinchcombe Rules require the Crown to disclose all relevant information in its possession,
subject to privilege.
There are two kinds of administrative law disclosure: from the Tribunal to the parties (the
Tribunal vets the material, sometimes adds its own, and sends it to the parties); and bw the
parties.
-Duty of fairness does not require the disclosure of all relevant info.
-First, look at disclosure requirements in the statutory or tribunal rules of procedure. The -CL
level of disclosure is flexible, depending on the Baker factors.
-This is illustrated by different rules for different bodies: - Generally, mutual disclosure is
required for documents that will be relied on.
Participants generally have the right to reasonable information in advance – requests for full
discovery rights have occasionally been accepted. > Privilege will still be protected.
Additionally, some factors may require non-disclosure, such as: national security,
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confidentiality, other policy reasons, or other fairness concerns.
May v. Ferndale Institution > inmates, computerized reclassification system Here, CSC’s failure
to disclose the scoring matrix was a clear breach of its statutory duty of disclosure. > Without the
scoring matrix, the inmate were deprived of information essential to understanding the
computerized system which generated their scores and were prevented from formulating a
meaningful response to the reclassification decisions.
Pritchard v Ontario (Human Rights Comm) –see agency counsel below> SCC of Canada
confirmed the application of solicitor-client privilege to legal opinions prepared by an
administrative agency’s in-house counsel. >> The work done by in-house counsel involves legal
and non legal responsibilities. The application of privilege depends on the circumstances in
which advice is sought and given, the subject matter of the advice and the nature of the
relationship. When solicitor-client privilege is found, it applies ”with equal force in the context of
advice given to an administrative board by inhouse counsel as it does to advice given in the
realm of private law.”
Delay
Kodellas- Human Rights case delay of 4 yrs between complaints and hearing. Delay fault of
Commission. K had intended to call whole staff and his memory had faided. Actual Predjudice
found. BUT parties expected to make efforts to preserve evidence and locate witnesses, and may
have proceed without all witness.
> (1) whether delay is prima facie unreasonable considering time requirements, (2) reason for
delay, (3) the prejudice/impairment that delay caused
Blenco, the court looked at > (1) impact of delay, (2) nature of proceeding/statute/body, (3) cause
of delay
What To understand from this case: What the threshold was for a remedy and what the
threshold was for a stay of proceedings as a remedy?
§ If you meet the high threshold, the delay would be so severe that it would be contrary to
justice and would prevent a person from answering the case i.e. dead witness
§ Where the remedy is a stay of proceedings, the threshold to be met is high b/c a stay of
proceedings is a serious remedy. The threshold must be an abuse of process.
§ There are other remedies available – e.g. cost and less serious remedies could be met by a
lower threshold
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that grade was to low.
-When credit an issue decision maker may need to see expressions, hear speech of person.
-where credibility is involved, oral hearing is probably required
Right to Counsel
- There is not general right to counsel (Re Men’s Clothing)
Factors > (1) complexity, (2) capacity, (3) impact of outcome (Re Parrish))
-consideration of s7 Charter also relevant as it does not give absolute right to counsel (Howard v
Stony Mountain)
-In Ontario Right to council Provided for s10 SPAA when,
Individual subpoenaed, required to attend and testify under oath, reports are made public,
individual can be deprived of rights/livhood
Disclosure
A party is entitled to know what evidence and representation have been given and is entitled to
adequate opportunity to respond (Kane, Charkaoui)
-there are presumptions in favour of disclosure, look to see if there are reasons for non-disclosure
Disclosure > giving information to the parties that the agency has relevant to the decision
-criminal law standard for disclosure, not applicable to admin (May- jail transfer scoring matrix)
- If an agency relies on evidence or representations and does not disclose or give an opportunity
to respond, decision can be challenged (Kane)
Exceptions to Disclosure
- 3rd party interests (protection of sources) (Gallant)
- Crown Privilege: can be applied under Access to Information Act
- Access to Info Statutes: don’t preclude CL right to information
- commercially/politically/security sensitive info (Chiarelli)
- cost and delay
- interesting in obtaining candid, complete, and objective advice
Charkaoui > The Immigration and Refugee Protection act allows the Minister of Citizenship and
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Immigration to issue a certificate declaring that a foreign national or permanent resident is
inadmissible to Canada . > The certificate and the detention are both subject to review by a
judge of the Fed Court in a process that may deprive the person of some or all of the information
on the basis of which the certificate was issued or the detention ordered. > The secrecy required
by the scheme denies the person named in a certificate the opportunity to know the case put
against him and hence to challenge the government’s case. > This in turn undermines the judge’s
ability to come to a decision based on all the relevant facts and law. >The infringement of s 7 is
not saved by s 1 of the Charter.
Official Notice
Extent and manner to which agency may use material not in evidence.
Rule: If administrator is relying on something outside record, must advise parties so they can
counter it.
What types of material not in evidence can an agency use? > (1) Decision maker’s own expertise.
(Ie property assessment.), (2) Creation of a board with specialized expertise implies an intention
decision-makers will use that expertise in reaching decisions. (3) Colleague’s
experience/collective knowledge of agency members. (4) Information gained in past cases. (5)
Books/files.
Admissibility of Evidence
Rules of evidence not applicable to agencies unless expressed by statute (which is rare).
-If normal rules of evidence not required to be followed, still procedural fairness required.
-therefore PF may only be invoked where more severe rules of evidence not followed
Cross Examination
Cross-Examination: where right to full hearing involved, cross-examination more likely should
be allowed (Innisfil v Vespra: whether the opposing municipality were entitled to cross-examine
the official of the ministry who had presented letter stating the govt policy had been settled).
When will PF require Cross-Examination? > (1) impact and seriousness of decision, (2) nature of
proceeding (Innisfil), (3) how important the witness evidence is (Re Country of Strathcona), (4)
effectiveness of another means to challenge the evidence (Re Country of Strathcona)
-Importance of the Evidence to the case – adversarial nature, impact of decision, other means to
challenge evidence.
Re Country Strathcona – Witness out of country so couldn’t cross and test evidence. HELD-
Opportunity to be heard implies chance to test other sides case. There are other means to test case
then cross, the loss of chance to cross taken into consideration of weight given to evidence.
Other View:
Re B & Catholic Children’s Aid
Person put on a Child Abuse Register Child had since recanted; board relied on hearsay evidence
from the social worker without hearing from the child. HELD : Reliance on this evidence without
ability to cross resulted in a finding of denial of procedural fairness lack of ability to cross was
critical to the admissibility of the evidence,
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POST HEARING ISSUES
Reasons
- Traditionally, duty to give reasons was not part of PF until Baker, when it est that the duty to
give reasons may be required
-There is a duty to give reasons when > (1) decision important to individual, (2) there is a
statutory right of appeal, (3) where decisions are discretionary, (4) legit expectations
Delegation
- delegatus non potest delegare > right to be ‘heard’ means right to be heard by person/members
who will make the decision and who have heard all the evidence and argument
Rule > a board cannot confer on another the authority to do things which otherwise that person
would have to do himself
Exceptions > statute permitting delegation (Local Govt Board v Arlidge),
- Disciplinary Powers cannot be delegated (Vine) > look at the scope if the provision –
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‘personally’ vs ‘any person authorized’
Factors > (1) nature of the decision, if more important to individual, should not be delegated
(Vine), (2) Complexity of decision, (3) nature of decision maker, (4) practical factors
-only hearing members can decide the facts of a case, the relevant law, & application of law to
facts. Consultation on policy matters (or research, theoretical law, editing, presentation, etc.) is
okay if: parties are informed of any changes and given opportunity to respond; does not force the
body’s decision; and no new evidence is provided (Consolidated Bathurst).
Advantage: allows for consistency in decision making
Disadvantage: parties cannot respond when Board meets consults
-Parties must be aware of all arguments & considerations that impact the decision and given the
opportunity to give submissions (Payne).
- if after consultation takes place and the board changes their mind > (1) There is a
presumption that during consultation the tribunals have followed the procedure in the absence of
information to the contrary): ELLIS-DON LTD
(2) There must be evidence that the decision was changed/influenced by the process based on
factual consideration undertaken by the board in post-hearing consultation in order to find
breach of procedural fairness: ELLIS-DON LTD Remember if re: law or policy then this is ok.
Agency Counsel
- Nearly all admin agencies have legal counsel who may be employed full time
Lawyers involved in investigations & prosecutions should not assist those who adjudicate
(Quebec Inc v Quebec).
During Hearing: Counsel may advise the tribunal – both sides must hear answers & make
submissions. Degree of intervention permitted depends on the context & counsel’s perceived
neutrality.
Counsel Assisting with Reasons: Counsel can assist with reasons – the decision must be
substantively the members & counsel should be wary of retiring (going to the end) with the
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committee members (Spring)
Factors to determine counsels role in assisting with reasons: nature of proceedings, composition
of tribunal, terms of enabling legislation, support structure available to tribunal, tribunal’s
workload etc. (Khan v. C P&S).
Reasons review (policy): policies cannot prevent the proper people from deciding the case
(Bovbel).
Agency guidelines:
-Some admin agencies make extensive use of guidelines on the interpretation of their enabling
legislation
- Members expected to follow guidelines unless exceptions exist. However, must be flexibility to
allow for exceptions Thamotharem > Whether guideline 7 in refugee case prescribes a hearing
procedure that is in breach of the claimant’s right to procedural fairness >>
Despite the express stat authority to make guidelines here, they do not have the same legal effect
that stat rules can have > Guidelines cannot lay down a mandatory rule from which members
have no meaningful degree of discretion to deviate regardless of the facts of the particular case
before them. > Since the language of guideline 7 expressly permits members to depart from the
standard order of questioning in exceptional circumstance, the court should be slow to conclude
that members will regard themselves as bound to follow the standard order in the absence of
clear evidence to the contrary.
EG – Baker – guidelines were applied to the substantive review of the decision. Bezaire failure
to follow the guidelines for consultation before school was closed went to whether it resulted in a
breach of PF.
The Guidelines / Policies Must be flexible to allow for exceptions Thamotharem – see above
Bell Canada- accused of paying female employees less. Issue was the commissioners ability to
issue guidelines to fetter the discretion of the tribunal. HELD: guidelines are subordinate leg. To
fetter the discretion of tribunal was authorized by law. Guidelines can not be contrary to the act.
Can be challenged if issued in Bad Faith or to influence the process.
General Rule: nemo judex in causa propria sua debet esse – none should be judge in her own
cause > no personal interest in decision > cannot have associated with a party or cause
BIAS
Test: Reasonable Apprehension of Bias Test
-Committee for Justice and Liberty, Energy Probe: what would an informed person viewing the
matter realistically and practically conclude, having thought the matter through?
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a) Pecuniary/other Material Interests
Direct (ie certain) pecuniary or other material interest in a matter will constitute bias (Energy
Probe).
b) Antagonism During Hearing
Most common situation is unreasonably aggressive questioning or comments about testimony
(Gooliah). May indicate decision maker’s bias towards issue.
c) Association between Party & Decision Maker
-self explanatory (Coventant of Sacred Heart – owner of residence was the member’s wife, who
was a member of the executive of a ratepayers group) (Marques – since a year had passed b/w
positions, it didn’t count: must look at totality of situation)
d) Involvement of Decision maker in Earlier Stage of Process
Usually where decision maker has heard matter originally that is being re-heard under appeal or
judicial review, or has been involved in investigation and decision to proceed with the matter
being heard. (National Energy Board)
e) Attitudinal / Pre-Judgement
As strong views on a relevant or irrelevant issue.
-are the views interfering with the adjudicative process,
Newfoundland Telephone- Wells made public comments the pay packages were ludicrous. After
hearing began he kept making these comments. NT argued this creates a reasonable
apprehension of bias. HELD- he had a Closed Mind to the issue, this applies during the
investigatory stage and to a higher standard once hearing begins.
Remedy- comes from Cardinal – the decision will be void, denial of a fair hearing die to RAB.
EA Manning: Dual roles are not sufficient evidence of bias. In such a case, advance information
about a complainant is not bias, but prejudgment is – unless permitted by statute.
Doctrine of necessity: may require members to hear matter even though they may be biased
Québec Inc. v. Quebec: bias analysis considers the nature of the dispute, the other duties of the
agency & the overall operational context.
Held: The lack of separation of roles in the circumstances violates natural justice. This is based
on the nature of the dispute to be decided, the other duties of the agency and the operational
context as a whole.
-A plurality of functions in a single administrative agency is not necessarily problematic but it
must not result in excessively close relations among those involved in different stages of the
process.
-The fact that lawyers make submissions to directors who have no legal training and then advise
them in respect of the same matter raises a reasonable apprehension of bias.
-It is equally problematic that the Chairman can initiate an investigation, decide to hold a hearing,
constitute the panel that is to hear the case, and include himself on that panel.
-The reasonably informed person test is appropriate for independence & impartiality.
-Independence deals with the structure of the tribunal & its relationship to other bodies;
-Impartiality deals with attitude towards the parties & issues. More independence is required
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for more adjudicative tribunals.
- Impartiality does not require an empty mind – the decision maker may consider policies &
guidelines that should legitimately bind them (this is an example of guidelines as delegated
legislation – legally binding. Other guidelines are merely suggestions, and statutes or rules
prevail. Applying a discretionary guideline without regard for the merits of the individual case
fetters discretion & breaches fairness).
Bell Canada v. CTEA : > Bell brought a motion before a panel of the Canadian Human Rights
Tribunal, which had been convened to hear complaints filed against Bell by female employees.
Bell alleged that the Tribunal’s independence and impartiality were compromised by two
powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are
binding on the Tribunal concerning “a class of cases”, and second, the power of the Tribunal
Chairperson to extend Tribunal members’ terms in ongoing inquiries.
Held: Independence pertains to the tribunal’s structure and its relationship to other entities.
Impartiality pertains to the tribunal’s thoughts regarding the issues and parties towards it. While
impartiality is a yes or no question, while independence is much more flexible. On the one hand,
the tribunal is adjudicative. On the other, it is implementing a government policy of rectifying
discrimination. The power to extend appointments fails the reasonable person test on both
grounds, per Valente (judges will see a matter through to its conclusion, regardless of term
limits). Also, how would deciding a certain way affect the HRT Chairman’s decision? The
HRC’s involvement in the case, including its guidelines, do not affect impartiality or
independence, as the guidelines are merely part of the law that governs the tribunal. They are
necessary to fulfill the policy objective of the Tribunal, and are permissible as long as they are
not so determinative as to prejudge the case. Neither issue challenges procedural fairness,
constitutional principles or quasi-constitutional principles (s. 2(e) of the Bill of Rights [the Bill
takes primacy over federal legislation, requiring a standard of fundamental justice despite
legislation to the contrary]).
LACK OF INDEPENDENCE
-Consider: would a right minded person conclude members of admin body would lack
independence in making decision Sethi (ie. reasonable apprehension test)
Canadian Pacific v. Matsqui – regimes to challenge initial assessements re Indian taxes. Only
one level of appeal before Fed Court hears it. Indians were eligible appointees, didn’t have to be
paid and had no tenure. Companies fought this > SCC basically had split ruling. The statutory
intent regarding independence is vital. Independence is based on the relationship, as determined
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by certain objective factors from Valente: (1) security of tenure, (2) financial security and (3)
institutional independence apply to administrative tribunals who adjudicate.
Different degrees of independence are necessary in different contexts (adjudicative v. policy,
holding hearings, etc.)
Consider:
-nature of tribunal
-interests at stake
-other indices of independence
Statutory Authorization
Ocean Port (2001): statute can specifically authorize certain admin bodies so that one cannot
claim lack of independence even if violated. In this instance would have to rely on
Constitutional breach.
Irrelevant Considerations:
a tribunal that is given discretion to decide what matters are relevant does not act ultra vires in
exercising this discretion contrary to the beliefs of the court, however the court will intervene and
grant appropriate remedy when this is the case (Re Sheehan – was an inmate, there was riot and
he was injured applied for compensation. Statue said the board could make an order in its
discretion, based on what it consider relevant.
The Board denied compensation said he been convicted of a crime before assaults, and didn’t
bring a action against Govt body for comp. Court Held – these factor were not relevant BUT on
appeal HELD – court wont intervene unless considerations are clearly irrelevant and made in
Bad Faith.
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consider them was unreasonable)
Improper Purpose:
What is the purpose of the act and the consideration leading to the decision. Shell Canada
Roncarelli – he was a restaurant owner, he took profits to post bail for Jehovahs Witnesses. The
premier instructed the Liquor commissioner to revoke his license. Discretion not exercise for a
legitimate purpose, and took into account Irrelevant considerations
Suresh – ministerial discretion to deport someone who was a danger to security of Canada even
when there was a possibility that person LL&SP was in danger > -Court gave deference to
Minister b/c legislation made it his decision
Discretion and the Charter, Underlying Principles of the Constitution, and International
Law
Slaight v Davidson (1989): Need to consider whether use of discretion results in Charter breach,
and if so whether breach justified under s.1. In deciding what is reasonable and demonstrably
justified, Canada's international treaty obligations are relevant.
Chamberlain v Surrey School District > local school board could not impose its religious values
by refusing to permit the use of books that sought to promote tolerance of same-sex relationships.
Lalonde v Ontario > A tribunal must take unwritten constitutional principles into account when
making discretionary decisions.
If international conventions can be considered in interpreting enabling statute (Slaight, Baker),
then so should the Canadian constitution.
Delegated Legislation
-delegated legislation subject to judicial review on grounds of ultra vires
-Municipal By-laws (courts not hesitant to review delegated legislation passed by municipalities,
generally in the form of by-laws)
-also note additional by-law grounds of unreasonableness, discrimination and oppression,
lack of jurisdiction, abuse of power, serious illegalities (Port Louis – didn’t give notice re tax
increase, Shell Canada – Vancouver concedes that the Resolutions discriminate aginst Shell, the
issue is whether the discrimination was justified under Vancouver Charter > they are not and
therefore ultra vires)
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Unreviewable Discretionary Powers?
Prerogatives
-are sometimes reviewable: court more interested in nature of power than its source (ie. whether
legislative)
-if decision maker makes decisions that alters individual’s rights or deprives them of some
benefit/advantage, then judicially reviewable (Council of Civil Service Unions)
-decision maker must be empowered by public law
Thamotharem v. Canada: Issue was whether Guidelines on the order of question of refugee
claimants compromised the independence of the Board.The Court found that the Guidelines were
authorized by law (delegated legislation or soft law).The legislature that conferred the discretion
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could lawful limit it via authorized Guidelines.
When is a “guideline” an improper fetter of discretion?
- Is the language mandatory or permissive?
- Does it allow for exceptions (even if only in exception circumstances?).
- In practice, is the Guideline applied as a mandatory directive
SUBSTANTIVE ANALYSIS
History -
-Analysis was called the ‘pragmatic and functional test’ and there were 3 standards of review
Correctness, Reasonableness Simplicitor, and Patently Unreasonable (Southam).
-pragmatic approach focuses on legislative intention > why did the legislature give them this
power?
-this will allow us to figure out if its in the ‘tribunals’ jurisdiction or not
- CUPE > SCC gave a clear warning to courts not to label something a jurisdictional question to
be reviewed – the court should take a deferential approach
Dunsmuir –He was fired with 4mths pay with out cause. His grevience was denied for PF and
lack of notice. Arbitrator held denied PF and in effect reinstated him
In JR the test renamed the ‘Standard of Review Analysis’. And made only 2 standards
Correctness and Reasonableness.
Correctness – the court will not show deference (respect court shows to DM authority) to the
DM reasoning process. Court will conducts its own analysis to determine if agrees with DM. If
not court substitutes own view and the correct answer.
Reasonableness - Court analysis the qualities that make the decision reasonable. The Court
considers
a) Justification, transparency, or the DM process,
b) Does the Decision fall with in a range of possible acceptable outcomes based on the law and
facts.
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govt contracts)
3) If No, apply Dunsmuir ‘Standard of Review’ analysis and determine which standard to
use. (below)
IF No… STEP 2
Standard of Review Analysis
Khosa - with respect to the Federal courts act. The legislation has the power to leg a standard of
review. The act doesn’t specify a standard of review. Each section must be assessd according to
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CL standards. The language in the statute Must be direct and state with standard.
But the Federal Ct act never set out the standard of review, expressed but in the BC Act it clearly
states Pat. Unreasonable so it will apply (Khosa)
Vic Times Colonist - suggests Pat unresaonablenss interpreted to mean a High level of
deference, because Court cant do anything unless it is a crazy unreasonable decision.
Dunsmuir- there was privative clause, arbitrator was interpreting his own statute, leg purpose to
timely/binding system to resolve disputes. The nature of the legal question was outside the
expertise of arbitrator. Standard of reasonableness.
-It was though found that his interpretation of the Statute was unreasonable and
outside the range of acceptable outcomes
Khosa – Immigrant who killed lady in driving accident. Held that after his sentence he was to be
sent back to India. Standard was found to be reasonableness applied the 4 factors from
Pushpanthan
Ask: is the decision in the reasonable range
Proprio Direct - real estate agent required fees and no sale took place. Breached real estate
agent act. Tribunal was interpreting own act so Reasonableness
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Lake - Ministers decision to extradite person to US for Drug offence. Involved mostly Policy,
and extreme end of Admin decision making. Minister had to consider law and statute and the
Charter. If the correct legal test was applied by the minister, if so assessed on Reasonableness.
Here it was done ok and decision was held to be within range of possible reasonable
outcomes.
Segmentation > Where a single decision is challenged on multiple grounds. Applies to: (1)
Jurisdictional issues, or (2) Constitutional questions. Both of which are reviewed on a standard of
correctness.
Segmentation has been viewed and disputed as being a tool that the judges can use to interfere or
get around legislation intention to confer legislation on tribunal and not on the courts.
Step 1: Look to Levis and Via Rail. Compare those cases to the situation at hand.
Case 1:
Levis (City) v Fraternite des policiers de Levis Inc: question of whether police officer should be
dismissed or not. Two applicable statutes—City and Town Act said ppl convicted must be
dismissed VS Police Act said there was discretion to dismiss or not.
Arbitrator said Police Act overrode City and Town Act and that discretion applied thus allowed to
keep job.
ISSUE: question of whether it was possible to divide the application of the statute in terms of
which statute governed, which provision applied.
- SCC HELD: ‘multiple standards of review should be adopted when there are clearly defined
questions that engage different concerns—however different standards should only be used
where there are clear distinctions btw the questions. Segmentation should occur only where the
issue is “genuinely external” and “easily differentiated from other issues in the case.”
Here, there were 2 separate questions—1) relationship btw 2 statutes (correctness); 2)
interpretation and application of Police Act (mixed fact and law- reasonableness)
Danger of segmentation: (Abella J) will lead to more intrusive review of administrative decision
making. Thus, it should ONLY occur where the issue is ‘genuinely external’ and ‘easily
differentiated from other issues in the case’ (Levis)
Case 2:
Council of Canadians w Disabilities v Via Rail Canada Inc:
FACTS: Via rail acquired new rail cars; Council of Canadians w Disabilities complained to
Canadian Transportation Agency about lack of accessibility for users w personal wheelchairs.
Agency found undue obstacle and ordered cars to be modified.
MAJORITY HELD: single standard of patent unreasonable applied both questions-- 1) authority
to decide complaint; and 2) whether there was an undue obstacle
- Court should be reluctant to separate out areas as ‘jurisdictional’ or as relating to a
‘preliminary question’
- This was consistent w majority in Levis
DISSENT: disagreed and said segmentation was appropriate
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Dunsmuir – the standard of Reasonableness – court will consider whether the discretion falls
within a range of possible outcomes.
When the Admin Tribunal Act BC applies the Standard of Review is Patent Unreasonableness
regardless of a Privative Clause
(1) Reasonableness;
Reasonableness standard means deference: respect for legislative choices, expertise of tribunals,
and different roles of courts and administrative tribunals
Ask:
(1) if there was transparency, justification and intelligibility of the Tribunal throughout the
decision-making process;
(2) What would a reasonable person think (significant change). Look to see whether the decision
of the tribunal falls within range of possible, acceptable outcomes which are defensible in respect
of the facts and the law.
NB: Courts are taking notice of what SCC said in Dunsmuir that one reasonableness SOR does
not invite more intervention by the courts: Coffey v. College of Licenced Practical Nurses of
Manitoba 2008 MBCA 33, leave to appeal to S.C.C. refused:
There is only one reasonableness standard and there is not different levels of deference in that
single standard: Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008
ONCA 436
(2) Correctness – no deference to DM and court will take own analysis of issue and decide if the
decision was correctly or not correctly decided.
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- Correctness SOR Applies to:
(1) Question of law of central importance to legal system and outside expertise of decision-
maker;
(2) Question of jurisdiction between two or more tribunals;
(3) Constitutional issues
(4) If outside expertise of DM then certainly correctness
(5) Statutory right of appeal
(6) No Expertise
Domtar > a lack of unanimity is the price to pay for the decision making freedom and
independence given to the members of these tribunals and recognizing the existence of a conflict
in decisions as an independent basis for judicial review would, in my opinion, constitute a serious
undermining of those principles
The Charter applies to decisions of administrative bodies because the legislature cannot give
statutory power to do something that the legislature itself could not do, that is, violate the
constitution: Slaight Communication
Distinguish between two situations below and choose the appropriate one.
The Constitution can be contravened two ways:
1. The legislation may be valid, but the particular decision may be unconstitutional.
- If the infringing decision is just one possible outcome of the exercise of discretion, then it is the
administrative decision itself that should be challenged. (Martin/Conway)
2. The legislation that creates the administrative agency or that confers power on the
agency may be unconstitutional.
- If the legislation expressly confers a power to infringe the Charter, then the statute itself
violates the Charter. (Multani)
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particularly the Charter and make decisions in accordance with it (Slaight Davidson).
S. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
REMEDIES – If the tribunal has authority to decide constitutional question, what remedy
does it have authority to give? Nova Scotia (WCB) v Martin:
• Even if tribunal has authority to decide a constitutional question a tribunal cannot strike
down the legislation under s. 52:Martin
• BUT…..A tribunal can and must refuse to apply an unconstitutional provision in that
particular case. Therefore they will make their decision as if the provision did not exist. This
is not a remedy it is just respecting ROL.
• Only a court can strike down legislation!
NB: Standard of review on JR is always CORRECTNESS for a constitutional question
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Administrative Tribunals Act, S.B.C. 2004, - printed
ss. 43-45
-legislature chooses which of 3 jurisdiction scenarios apply > (1) if the tribunal can refer to
questions of law including Const, (2) Tribunals w/o jurisdic over Consti questions, (3) Tribs with
jurisdic over Charter questions
SCENARIO 2: Multani
Step 1: Is a party arguing that their charter rights have been violated? Multani
Here a person will complain about the decision an institution has made and complain directly to
the court.
On JR, is a party alleging that an administrative agency’s decision is inconsistent w the Charter?
Direct breach? = use consti principles/ remedies
- Example: Multani—see below
Failure to reflect values consistent w Charter? = Use admin analysis
- Decision doesn’t affect cases where Charter values may be factor, but decision itself
doesn’t violate Charter (Chamberlain—freedom of religion and equality were indirectly
involved, but neither directly violated)à If this is case, then court considers charter values in
admin law analysis
IF DIRECT BREACH…
Here, the Court meets the requirement of being a ‘court of competent jurisdiction’ and has the
ability to award a remedy.
Step 2: What approach should the court take in deciding if there is a breach of the charter
in an administrative law context?
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Step 3: Remedies
If provision cannot be saved under s1 (Oakes Test) ,then there will be a breach. If a breach is
established, the Tribunal/Court can award [fill in remedies from directly above] remedies.
Cases:
Slaight Communications Inc v Davidson: D radio time salesman. Dismissed for cause by Slaight
Communications- alleging his sales were inadequate. Grievance filed under Canada Labour Code.
Arbitrator found D unfairly dismissed and that manager of Slaight had ulterior motive for firing
D.
- Arbitrator made 2 orders: 1) S provide D w letter setting out quotas and D’s actual sales
(positive order); 2) S not provide info other than letter in response to questions about D’s
performance (negative order)
S applied for JR of arbitrator’s decision
HELD: Both orders infringed s2(b) (freedom of expression), but were saved under s1
- Oakes test:
1) Importance of objective = allow D to find a new job w/out being lied about by former
employer
2) Rational connection = given D had been subject of vendetta, lengths S had gone to in
attempting to justify firing, preventing any other info being disseminated was rationally
connected to objective
3) Minimal impairment = positive order (letter) would be worthless if it was
accompanied by allegations about D’s dismissal.
Multani v Commission Scolaire Marguerite- Bourgeoys: M and family were orthodox Sikhs.
Part of religion was wearing ‘kirpan’. M was 12 yrs old; accidentally dropped 8 inch kirpan
wearing under clothes at school. School Board (Commission) sent M’s parents a letter saying he
could wear his kirpan to school provided that he complied w certain conditions to ensure it was
sealed in clothing. Family agreed. Governing Board of M’s school refused to agree—argued that
this violated Article 5 of School’s Code of Conduct. Council of Commissioners upheld this
decision.
M’s father sought order under s24(1) that decision of Council of Commissioners was of ‘no force
or effect’
SC of Quebec HELD: order made that M could wear kirpan.
Court of Appeal HELD: applied admin law principles—SOR was reasonableness
SCC HELD: decision should be declared null; discussed issue of whether analysis should be
admin or charter.—MAJORITY = Charter……..HOWEVER……
DISSENT:
Deschamps and Abella JJ (used administrative law principles): don’t go under Charter, look at
SOR (reas or correctness) and then can consider the legislature won’t authorize any of its
agencies to breach Charter.
- Noted that Courts have admin law principles in cases involving Charter rights—see
Chamberlin. These principles could be applied here.
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CH 13: REMEDIES FOR UNLAWFUL ADMINISTRATIVE ACTION: THEIR SCOPE
AND THEIR LIMITS
Voluntary Associations
- are voluntary associations subject to JR, who are either by law or de facto, control access to or
opportunities in various forms of occupations
- the question is whether the deciding body can be considered a ‘tribunal’ for the purposes of JR
-If voluntary associating acting adjudicatively, and public interest is a concern beyond those
directly affected, then decisions may be reviewable and a remedy granted (R v Halifax-Darmouth
– a real estate board suspended Seaside from membership for various alledged breaches of assoc
rules and regs)
-JR jurisdiction is divided between the provincial superior courts and the Federal Court of Canada
> the choice as to whether to proceed to which Court will depend on whether the source of power
or authority in question is Fed or prov
-can be confusion as to whether provincial court has jurisdiction to judicially review matter:
May v. Ferndale Institution: provides that provincial jurisdiction should only be declined by
provincial court where a statute confers jurisdiction on a court of appeal to correct errors of a
lower court, or legislator has put in place complete procedure for review of an administrative
decision.
MODES OF RELEIF
Statutory Appeals
- most common way of challenging administrative action is by the huge variety of statutory
appeals that exist in the individual statutes creating specific tribunals, agencies, stat powers, etc
Prerogative writs:
(1)Certiorari > quash or set aside a decision (most common)
-General Rule: The court on JR cannot substitute the tribunal’s opinion (can only do so on
statutory right of appeal)
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-Exception: Unless statute so provides
-When using this Remedy the Court May:
(1) Send it back to the tribunal to be reheard.
• This does not prevent the tribunal from making the same decision but just doing it on
legal grounds: Re Labour Relations Board
(2) Send the decision to another panel that has jurisdiction to hear the matter. This is where the
court would use prohibition. This might not always be possible in the admin law context.
(3) The court may quash the decision and send it back to the tribunal with directions if it is
expressed in the statute or rules or inherent jurisdiction
• General direction – i.e. comply with rules of the court or
• Specific direction – i.e. not heard by a specific individual
(4) If it is a procedural defect then rewind and start from the point from where the defect
occurred. If not procedural then the tribunal must re hear the entire issue.
Mount Sinai Hospital v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281
• The minister who was previously in power promised to issue a permit to the hospital. A
new gov’t was elected and the new minister refused to issue the permit due to money
restraints after he was asked to do so by the courts.
• The court gave an order of mandamus to order the minister to provide the permit
(3) Prohibition
(4) Habeas corpus—to test legality of detention
(5) Quo warranto—to show authority for action
Legislation
- Legislation in several jurisdictions has simplified remedies and procedures for seeking
them (compared to the old prerogative writs), but the remedies are generally based on the old
prerogative writs.
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For example, the Federal Court can issue writs (Federal Court Act, s. 18(1)) and make a variety
of orders (s. 18.1(3)):
s. 18.1(3) On an application for judicial review, the Federal Court may:
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully
failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in
accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision,
order, act or proceeding of a federal board, commission or other tribunal.
Declaration
- This is a pronouncement by the court on matters of law, defining the rights and obligations
of parties.
- This remedy will normally be made along with other orders but it may be granted as a sole
remedy if no other remedy is appropriate.
- NOT LEGALLY BINDING but generally followed when ordered.
CUPE v. Ontario (Minister of Labour)[“Retired Judges”]: The union asked for the
appointments of arbitrators to be set aside. This was held to be inappropriate because issue was
the appointment procedures generally, rather than the appropriateness of individual
appointments. Some arbitrators might in fact have appropriate qualifications. Thus, the
appropriate remedy was a declaration that the Minister must make appointments in accordance
with certain legal requirements such as independence, impartiality, expertise and mutual
acceptability.
Note: Although normally rarely awarded, in the decision in Vancouver the SC awarded damages
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for breach of the charter, SC has said that damages will be more frequently be made available.
Rule: This remedy is available if authorized by statute or rules – both the QB and fed rules – the
court has jurisdiction to make an interim order pending the outcome of the application
Federal Court Act, s. 18.2: On an application for judicial review, the Federal Court may make
any interim orders that it considers appropriate pending the final disposition of the application.
Saskatchewan Queen’s Bench Rules, Rule 668(1): The court may make such interim orders as
it sees fit, including orders preserving the status quo or the position of the parties, and may
extend, modify or set aside any such orders.
General rule: a stay of proceedings is not automatic, considerations will be the same in private
matters but may be provided for in:
Federal Court Act, s. 18.2: On an application for judicial review, the Federal Court may make
any interim orders that it considers appropriate pending the final disposition of the application.
Saskatchewan Queen’s Bench Rules 668(2): An application for judicial review shall not
constitute a stay of the proceedings to which the application relates, but the court may grant a stay
of such proceedings on application made for that purpose.
Procedure: If you want a stay you must apply for it specifically and separately
Test was usually applied in private law but this test has been adapted to public law: Manitoba
(AG) v Metropolitan Stores – employer sought stay of further proceedings until Court disposed of
Charter challenge
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A stay of proceedings and an interlocutory injunction are remedies of the same nature. Same
principles apply to interim stays as for interim injunctions: Manitoba (AG) v Metropolitan
Stores
General Rule: The court has a “residual discretionary power” to step in and order an
interlocutory injunction, even where the court does not otherwise have jurisdiction over the
matter, where the statute of the tribunal doesn’t provide for an injunction to be made by the
decision maker of that tribunal
Answer: The court said YES, provided certain conditions are met
- The most important condition is that the statute did not provide for an injunction to be
given by the decision maker of the tribunal.
- If the arbitrator could have issued an injunction and chose not to – you can’t go to the
court in the alternative.
CH 14: STANDING
Step 2
Who can bring an application for JR?
In most cases, it will be obvious. If you were a party before the tribunal or if the decision affects
you personally. These individuals or parties will have standing to seek JR
E.g.: Hartwig v. Saskatoon Police Assn., 2007 SKCA 74 where the Police Association,
having participated in the judicial inquiry that was being challenged, was held to have
standing on judicial review
The General Test to see if an individual has standing based on personal interest is as follows
(Finley):
(1) A person must show an interference with a private right, special damage, or
exceptional prejudice that is not suffered by others of the population. In other words a
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sufficient “nexus”; or
(2) Direct causal relationship between the injury and the action being challenged. It
cannot be remote of speculative.
E.g. Mr Finley couldn’t get past this condition. He has an interest but the relationship
was too remote and indirect.
Step 1
Finley sets out Criteria that must be met in order to get public standing:
(1) Justiciability (proper matter to be determined by the courts as opposed to policy matters which
are best left to legislature or executive to decide);
(4) No other reasonable or effective manner in which issue may be brought before court
CASE EXAMPLE
AMNESTY INTERNATIONAL CANADA v. CANADA (CANADIAN FORCES), 2007 FC
1147
Made an application for JR and wanted public standing. The court looked at all 4 factors and
determined that the three that need to be met were satisfied.
• Public interest standing granted:
(1) serious legal issue (“fairly arguable case” or “reasonable cause of action”);
(2) Applicants clearly have genuine interest
(3) No other means for addressing issue because possibility of an action by an affected person
was obviously not a realistic alternative under the circumstances (they were detained).
*Even if you are granted standing it does not mean you will win the case or get a remedy.
You just have a right to be heard.
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Children's Lawyer for Ontario v. Goodis: The Court found that the appropriate scope for
standing will depend on the circumstances of the case, considering: Whether the tribunal’s
submissions are necessary for the matter to be fully argued and appropriately decided by the
reviewing court. The tribunal should maintain the appearance of neutrality. Also, the nature of the
question – an allegation of unfair treatment of a particular litigant v. an allegation that the
institutional decision making process is unfair.
Watson v Catney: C delegated power to hearing officer. W (affected Police Officer) applied for
stay of proceedings from hearing officer. Chief of Police (c) unhappy about this and wanted
disciplinary proceedings resolved. C applied for JR.
HELD: C had standing, but then lost in Court of Appeal because there was no right of appeal
under statute. Since C appointed hearing officer and delegated authority to him, he would
effectively be seeking review of his own decision = not permitted
Ontario Children’s Lawyer v Ontario Info and Privacy Comm > In the proceedings resulting in
this appeal, the Children’s Lawyer for Ontario sought judicial review of the decision of the
Information and Privacy Commissioner who ordered the Children’s Lawyer to disclose certain
documents in her possession. > t he Children’s Lawyer now appeals, challenging the role that
the Commissioner was permitted to play in the Divisional Court. Issue: the scope of standing to
be accorded by the court to an administrative tribunal whose decision is attacked by way of
judicial review. Held > see exception above > they needed to hear important information from
them
CASE EXAMPLES
Watson v. Catney, 2007 ONCA 41:
The Police chief appointed hearing officer. The hearing officer granted Watson's motion and
stayed the discipline proceedings. The Chief applied for judicial review. Could he do this? >
Court held that the Chief could not have public standing because he was directly linked to the
DM as he appointed him. It would be like the tribunal applying for standing.
-To grant JR would erode public confidence and lessen the fairness of the discipline process.
Can’t appoint someone then appeal a decision he does not like.
Real Estate Council of Alberta v. Henderson, 2007 ABCA 303: > The Executive Director
sought judicial review on the basis that the hearing panel's refusal to permit cross-examination
was an error of law and argued that the acquittals should be set aside. --
The legislative regime under the Real Estate Act provided for independence between the hearing
panel and the Executive Director of the Council. Therefore, the Executive Director was
sufficiently separate from hearing panel and could have standing (Council and Hearing panel
sufficiently separate). - The Executive Director had standing to bring the application for judicial
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review. -- Executive Director was directly affected by the decision of the hearing panel and fell
within the category of an aggrieved person.
Test: the court must ask if they will they add anything new, represent interest not otherwise
represented
Usually not permitted to expand case (limits on introducing evidence or arguments possible)
Variety of devices that the courts have used in the control of access to a determination on
the merits of JR application >
(1) Matter is private, not public,
(2) Issue is not judiciable or otherwise not reviewable,
(3) There has been no final decision by stat authority,
(4) Applicant lacks standing
Courts also have an overriding discretion to deny relief – most common grounds (below) >
to the extent that most of these bases for the denial of relief are rooted in concerns for the
integrity and the functioning of the administrative process
- Just because a remedy is generally available does not mean that a court will necessarily
award it.
- The court has a discretion whether to award a particular remedy or whether to award any
remedy at all. Therefore even where a party is successful on the merits, there may be no
remedy awarded. (see ie Homex)
- In the case of a failure to accord PF, however, this will almost always result in quashing of
the decision.
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remedy of last resort: Canada v Addison & Leyen
- If there are other means to have your appeal heard i.e. internal appeal mechanism or
statutory right of appeal – you have to use it before the court will step in for JR.
- A matter of discretion but likely courts will deny a remedy if you do not exhaust all
available avenues first
- A court may refuse to hear an application for JR if the applicant has failed to use all
available routes of appeal within the administrative system.
- The court may also refuse to hear the application if there is a statutory right of appeal to
the courts that has not been utilized.
- This may also be the case if the applicant had a right of appeal, but missed the limitation
period, or if they were unsuccessful on appeal.
- A court may also refuse to hear an application for judicial review that is made concurrent
with an appeal. (An appeal and judicial review cannot be joined.)
Canada v. Addison & Leyen Ltd: The company received notices of tax assessment. It filed
objections, but did not appeal to the Tax Court. The company brought an application for JR of the
Minister’s assessment decision. The Crown applied to have the application struck, and was
successful. HELD: Although the Federal Court had the jurisdiction to review the Minister’s
decision, but declined to do so as the company had not used the regular appeal process. JR is the
“remedy of last resort”.
Okwuobi v. Lester B. Pearson School Board: Several parents were seeking English language
educations for their children in Quebec, and challenged the provisions of the Charter of the
French Language requiring that most children in Quebec be educated in French. The
Administrative Tribunal of Quebec had authority to decide questions of law, and therefore
constitutional questions. HELD: the parents could not bring their application in the courts until
they had exhausted their remedies in the ATQ.
§ (Maybrun Mines)
(Garland v Consumer Gas - that this action does not constitute an impermissible collateral
attack on the OEB’s order. > where the party is attempting to challenge the validity of a binding
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order in the wrong forum, in the sense that the validity of the order comes into question in
separate proceedings when that party has not used the direct attack procedures that were open to
it (i.e., appeal or judicial review
> collateral attack cases all involve a party, bound by an order, seeking to avoid the effect of
that order by challenging its validity in the wrong forum. In this case, the appellant is not bound
by the Board’s orders, therefore the rationale behind the rule is not invoked. > to prevent a
party from circumventing the effect of a decision rendered against it. >
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- Court can deny a remedy if applicant has acted unreasonably – come to court with clean
hands
Homex Realty: The SCC found Homex had a right to be heard prior to passage of the bylaw.
Homex used a device called “checker boarding” to avoid municipal regulations. This was legal,
but could be considered as a factor. Homex was seeking to avoid the consequences of an
agreement the previous owner of the lands had made with the town regarding the cost of
servicing the lots. Therefore the court declined to quash the bylaw.
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