Administrative Law Exam Map

PROCEDURAL FAIRNESS“‘The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision’. –Baker

- Audi alteram partem (right to be heard)- Nemo judex in sua causa (rule against bias – now, independence and impartiality)

Sources of Procedural Fairness- Constitution/Charter- Statutes/ regulations- Statutory procedural Codes (SPPA)- Common Law- Rules, policies, guidelines

Questions - The threshold — when is an entitlement to fairness triggered- Content of duty of fairness in particular case1. Threshold:

Where decision affects a “right, privilege or interest”, duty of fairness will exist No duty of fairness for a legislative/ general decision (Inuit Tapirsat) OR emergencies (Randolph)

(See under common law threshold below)i. Always look at the enabling statute first

o Make sure the statute applies to the decision makero Eg a provincial statute will not apply to a federal decision maker

ii. Bill of Rights: o SCC held that BOR guarantees notice and some opportunity to contest governmental

deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal (Authorson)

o Applies only to actions derived from federal lawa. If federal legislation conflicts w/ BOR, then inoperative unless explicitly enacted

notwithstanding BOR (Authorson)o Two sources of procedural claims in the BOR:

a. S. 1(a) due process right engaged by infringement of “life, liberty, security of the person and enjoyment of property”

b. S. 2(e) right to fair hearing in accordance w/ Principles of Fundamental Justice (PFJ) engaged by determination of “rights and obligations.”

Singh: BOR protections engaged in cases of holding of rights jeopardized, and also cases where the entitlement to rights is determined.NAPO v. Canada (AG) says s. 2(e) has no or restricted application in the context of admin agency making determinations broadly based in impact. Instead, must have individual focus to apply.

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iii. Charter: o Applies to all laws empowering or decisions made by both federal and provincial

administrative decision-makers must be w/in ambit of “government” as defined in s. 32

a. Narrower than application of Administrative law generally (e.g. in McKinney, Charter held not to apply to universities, but admin CL would clearly apply)

o Claims to procedural fairness only under s. 7: “Everyone has the right to life, liberty and security of the person (LLSP) and the right not to be deprived thereof except in accordance w/ principles of fundamental justice.”

o S. 7 threshold:a. Met by gov’t action w/ potential to cause danger to physical security of the

person (Singh – risk of torture upon deportation) b. But need prima facie case of risk: Ahani . c. SP embraces “psychological integrity of individual” (G.(J.) – loss of custody of

kids, criminal-like stigmad. SP may be engaged outside penal settings or direct bodily effects, BUT

psychological stress would have to be: (a) state-imposed, and (b) serious (Blencoe)

e. Does not protect against “ordinary stresses a person of reasonable sensitivity would suffer as a result of government action” must interfere with ability to make essential life choices

f. Wilson (pg 212 CB): Does not apply to property or pure economic rights BUT did extend to right to practice a profession without arbitrary interference

g. NOTE: violation of s. 7 may be upheld under s.1 as a reasonable limit, BUT administrative convenience will never satisfy the Oakes test and further a s.7 violation will rarely, if ever, be upheld under s.1 (Suresh).

o S. 15 (equality before and under the law) DOES NOT APPLY TO ADMINISTRATIVE PROCEEDINGS (Andrews v Law Society BC (1989)

o S.11 (Independent and impartial tribunal) is confined to CRIMINAL PROCEEDINGS and those with TRULY PENAL CONSEQUENCES (R v Wiggleworth)A fine of sufficient magnitude levied by a tribunal could possibly be penal (no case)

iv. SPPA: o Applies to Ont “statutory powers of decision prescribing legal rights, powers, privileges,

immunities, duties or liabilities, and eligibility to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled to or not” (s.1)

o Limited to tribunals that are required by empowering statute/law to hold a hearing (s. 3) v. **COMMON LAW (Knight v Indian Head)**:

o “The fact that a decision is administrative and affects the rights, privileges or interests of an individual is sufficient to trigger application of duty of fairness” (Baker)

o There is a general right to Duty of Fairness, autonomous of any statute, depending on 3 factors that are determinative of the existence of such a right:

o Knight v Indian Head 3 triggers:a. nature of the decisionb. relationship between the agency/individualc. effect on the individuals’ right: “significant right to procedural fairness and

important impact on the individual”

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2. NATURE OF THE DECISION : Legislative/general policy decisions afford no duty of fairness- “a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural

protection…Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision” (Martineau, CB 113)

Factors in determining if decision is legislative/policy:o Targeted vs. general (# of people affected) (Inuit)o Nature of decision (policy vs. dispute btw parties)

Breadth: Powers granted to enable response to broad political, economic and social concerns, and that apply indiscriminately attract no fairness (Inuit). BUT, duty likely attaches if decision is aimed at or impacts a specific individual or group of individuals (Homex)

Form: If decision in form of a bylaw, Ministerial decree, or other legislative-type decision it may militate in favour of no fairness. However, where this is a guise for action that is quasi-judicial, settles a specific dispute or impacts private rights of specific individuals, a duty of fairness will apply (Homex ) .

o Nature of decision maker (see below – not sole factor) Legislature: no duty of fairness applies to Parliament or provincial legislatures

(Authorson, Wells), legislation to expropriate property must be unambiguous (Wells) Administrative Bodies: no duty of fairness applies to administrative decision-makers

exercising purely legislative or policy functions (Inuit Tapirisat) o Whether an exercise of power is a legislative or policy function can depend on

identity of decision-maker (Inuit, Homex), form of decision (Homex) or breadth of application of decision (Inuit).

Identity of Decision-Maker: Just because the decision-maker is a legislative actor such as a Cabinet Member (Inuit) or an elected municipal council (Homex) does not mean the decision is legislative and thus not subject to a duty of fairness.

3. PRELIMINARY/Non-final decisions : Non-final decisions given less fairness. The closer the investigative or recommendation stage is to final decision (“proximity”) and the degree of impact of the decision on the rights, interests and privileges of the individual bear on the claim for procedural fairness (Abel).

4. RELATIONSHIP TO INDIVIDUAL: Legitimate Expectation (NOT SUBSTANTIVE (Ref RE Canada Assistance Plan):

o Subsumed in the Baker analysis for degree of fairnesso Unclear if a legitimate expectation could independently entitle an individual to fairness o Based on conduct of official (Mt.Sinai)o established practices, conduct, representations that are clear, unambiguous and unqualified, and

do not conflict with statutory authority

a. EFFECT ON INDIVIDUAL’S RIGHT, INTEREST, PRIVILEGE: Homex : applied to a direct interest under the guise of a general by-law Hutfield : applies to interests (benefits) on initial distribution if the decision is final (or subject

only to an appeal)=hospital privileges1. Does not usually apply to applications for a benefit, but some fairness may be

required where a denial leads to injury to reputation or some other grave impact (eg inability to practice profession)

Webb : applies to privileges once given, if taking away would have serious consequences

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Knight : decision to renew licenses, employment contracts and other interests will often attract fairness—depends also on legitimate expectation of party, and time individual has retained the benefit

1) Content of Duty of Fairness:1) Always check enabling statute first2) Then look at whether the Charter applies. If not,3) Use Baker analysis

* Fairness content is same for Charter, BOR, and common law (Suresh)1) Audi Alterem Partem: (Right to be heard)

BAKER ANALYSIS:• The ‘content’ of the duty will vary widely• Degree of procedural fairness determined by assessing and applying the five factors in BakerFive Baker factors are relevant to the determination of the content of procedural fairness: (these are NOT exhaustive)

1. Nature of the decision and the process [23]: ‘The more the process provided for, the function of the tribunal, the nature of the decision-making body,

and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required….’

2. Nature of the statutory scheme/ terms of the statute [24]: ‘The role of the particular decision within the statutory scheme and other surrounding indications in the statute

help determine the content of the duty…. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issues and further requests cannot be submitted’.

3. Importance of the decision to the individual or individuals affected [25]: The more important the decision is to the lives of those affected and the greater its impact on that person or

those persons, the more stringent the procedural protections that will be mandated’• Note: in many cases, the content question boils down to a conflict between this factor and #5, the

state’s interest in effective and expeditious decision-making

4. Legitimate expectations of the individual [26]: ‘If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be

required by the duty of fairness…. Similarly, if the claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded.’

• LE is part of the doctrine of procedural fairness and does not create substantive rights

5. Procedural choices of the agency itself [27]: ‘… particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or

when the agency has an expertise in determining what procedures are appropriate in the circumstances’ ‘[although not determinative] important weight must be given to the choice of procedures made by the

agency itself and its institutional constraints’

Additional factors from Thamotheram:

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Does the procedure allow full statement of case? Are the claimants particularly vulnerable?

Content of Procedural Fairness under “Audi Alterem” principle

Delay: Undue delay of administrative proceedings may be an abuse of process, BUT very high threshold direct psychological harm or stigma to reputation such that system brought into disrepute

• In considering whether delay is unreasonable, look at complexity of case, facts/issues, purpose and nature of proceedings, whether applicant contributed to or waived the delay, or other circumstances (Blencoe)• Dissent: need “common-sense” analysis

Oral Hearing: Used to be required, but Nicholson lowered threshold of procedural fairness. Emphasis now on ability to get your point across – may not require oral hearing, as a written hearing or informal discussion may suffice (Webb).

• SPPA s. 5(1): oral hearing unless (a) tribunal made rules for written hearings or (b) party can show good reason for not having oral hearing.• Negotiations enough to constitute hearing in Knight.• Demand for in-person confrontation greatest where credibility is at issue (Singh, Khan) or conflicting evidence. • Open or closed hearing? Left to tribunal’s discretion, but presumption that open if public at large or significant segment entitled to participate

Right to Counsel: SPPA s.10 provides that parties may have counsel at hearings • However, Charter PFJ and perhaps CL may require the provision of state-funded counsel (GJ); need to consider. • Seriousness of interests at stake• Complexity of the proceedings, and • Capacities of the party

Disclosure: “Bedrock principle” – affected individuals require timely notice of what is at stake in sufficient detail to provide them with reasonable opportunity to participate in a meaningful manner.

• Greater need for disclosure where decision turns on accuracy of something relied on by decision-maker and there is a great impact on affected party (Haghighi).• No disclosure of info protected by solicitor-client privilege provided the communication falls w/in usual scope of the professional relationship (Pritchard).• Valid privacy and security concerns militate against full disclosure (Suresh; Charkaoui), be can still convey lesser content.

Evidence and Cross-examination: SPPA s.10 allows cross only if reasonably required for fair and full disclosure.• Key evidence should generally be tested by cross, especially if hearsay, unless good reason to do otherwise (Children’s Aid Society).• Not an absolute right (Armstrong). Factors include:

• Statutory context (if silent, court should be reluctant to step in)• Other avenues to bring challenge• Type of evidence (credible vs. conflicting)• Exceptions (e.g. vulnerable parties)

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Duty to give reasons: SPPA s.18 allows written request for reasons, but no content requirement.• Under CL, some form of reasons should be required when important decision for individual, when statutory right of appeal, and in other circumstances (Baker). • Only need to provide if requested (Liang).• Form of reasons flexible (e.g. officer’s notes in Baker)• Content of reasons must set out key findings of fact, evidence used to reach those findings, and convey reasoning process (Gray) • Remedies for failure to provide reasons:

- Quash decision and remit for reconsideration, or- Order provision of reasons w/o quashing original decision

Relevance of int’l human rights norms and procedural requirements:• Values reflected in int’l human rights law may help inform the contextual approach to statutory interpretation and judicial review (Baker).• S. 7 issue: where legislature established a statutory right to review a decision that could affect Security of Person, it is a PFJ that state cannot unreasonably frustrate that right (Ahani dissent).

Application of Baker [1999] 2 SCR 817 (Can) Application of the factors in this case:

1. The decision was different from a judicial decision because it involved considerable discretion and the consideration of multiple factors

2. Within the statutory scheme, the decision was an exception to the general principles of immigration law; however, there was no appeal procedure (although judicial review was available with leave)

3. The decision has exceptional importance to the lives of those with an interest in its result – the claimant and his or her close family members

4. No legitimate expectation to special procedures was created by the Convention on the Rights of the Child5. The Minister has considerable flexibility under the statute to decide on the proper procedure; immigration

officers do not, in practice, conduct oral interviews in all cases

• L’Heureux-Dubé J disagrees with the earlier holding of the Federal Court of Appeal that the duty of fairness owed in this context is ‘minimal’‘Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered’ (para 32)(CB48)

2) Nemo Judex in Sua Causa (Right to an unbiased decision maker)

Lord Hewart in R. v. Sussex Justices [1924] at p.259, “...it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Degree of impartiality and independence required at law will vary according to context

PROCEDURE: o 1. Is there unacceptable bias of lack of independence based on the common law?o 2. Does the statute permit such bias? (Brosseau)

Not open to a court to apply a common law standard in the face of clear statutory direction – statute is determinative (Ocean Port).

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o 3. Would it offend the Charter to allow the person to adjudicate? No constitutional right to independence and impartiality for administrative tribunals (Ocean

Port, Bell).a) Bias:

• Impartiality refers to “a state of mind or attitude of the tribunal in relation to the issues and parties in a particular case” (Valente)

o TEST = Reasonable Apprehension of Bias (Committee for Justice and Liberty): For personal bias: “Would an informed person, viewing the matter realistically and practically—and

having thought the matter through—conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would decide unfairly?”

“Apprehension” = does not matter whether there is actual bias For institutional bias: “Would an informed person … in a substantial number of cases?” (Regie)

Administrative body that investigates and adjudicates the same case is not enough to meet this test – legislature may desire the overlap (Gale).

BUT test is met where individual employees do or may play multiple roles (Regie).o Application of RAB test:

Standard of bias dependent on: Function of decision-maker spectrum from adjudicative to legislative

o Suggestion that legislative/political decisions insulated from scope of bias and independence evaluations (Old St. Boniface).

Nature of decision-maker elected vs. appointed Role of decision-maker small to large Stage of decision-making investigative stage vs. hearing stage

o Can’t indicate “closed mind” at investigative (Wells)o Must be no reasonable apprehension of bias at hearing stage

Pecuniary interest must be direct (Perlman). Deliberative secrecy may pose a practical obstacle to proving bias (Ellis Don).

A) Antagonism during hearing by DM Aggressive questioning or comments during testimony (Yusuf) Baker – antagonism based on the written notes –attitude/hostility of Lorenz Tribunal counsel hostile (Brett) Balance: proper tribunal control of proceedings with fairness

B) Association by one of parties with DM Member’s wife belonged to ratepayers group executive challenging decision (Convent of

Sacred Heart) Marques – no RAB where OLRB member had previously been a member of law firm acting

for union CNG Transmission : lawyer for a party met with Chair, member, and discussed (this did raise

RAB)C) Involvement by DM in a preliminary stage of decision

Cttee for Justice – Members should not have prior involvement (e.g., investigate) in matters they will

ultimately adjudicate

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May have statutory authorization defence (Where overlap of functions proscribed by state, no “institutional bias”: (Brosseau, Manning)

STAT AUTHORIZATION: Brosseau Chairman, who received investigative report, also sat as an adjudicator (Alberta Securities Commission)

Exception to “nemo judex” principle is where the overlap of functions which occurs has been authorized by statute

Securities commissions, given their functions, have repeated dealings with same parties – structure, function must be assessed in context of RAB

Manning : No “corporate taint” in new Commissioners who didn’t take part in policy statement

Must presume in the absence of evidence to contrary that they will act fairly and impartially in discharging their adjudicative responsibilities, and will consider the particular facts and circumstances of each case.

Quebec (Regis de permis d’alcool) : Reasonable apprehension institutional bias – insufficient separation staff lawyers and directors•Staff lawyers made submissions to tribunal, advised it, helped draft opinions•Directors could initiate a review, decide to hold a hearing, then participate in decision (CB 473)

D) Attitude of DM toward the outcome A & P • Prof. Backhouse originally participated as plaintiff in a systemic sex discrimination case, public

advocacy on issue, and is later appointed as adjudicator, OHRC• RAB challenge – upheld – she descended personally as a party into the arena over which she

presides, in relation to the same issues she has to decide• Paine v. U of T – Tenure denied. Chairman appointed a prof. to the Cttee who had previously

submitted a negative assessment (not acceptable for tenure) • However, two additional tenure appeal committees upheld• Court did not interfere (domestic dispute, not “manifest injustice”)

E) Pecuniary Bias• Direct pecuniary or material interest disqualifies a DM automatically• Energy Probe : Olsen, Board member was president of a company supplying cables to nuclear

plants, member or official of organizations supporting use of nuclear power• No direct pecuniary interest – p. 494• Contingent, remote• Must be a contextual analysis

Variations in Bias Standards:• The standard of disqualifying bias varies with context (Baker factors)• POLITICIANS: “Some degree of pre-judgment” is inherent in role of municipal councillor, who have

political and legislative duties• TEST: “capable of being persuaded” or come to issue with an “open mind.” (Boniface)• Old St. Boniface : (CB 500)• Municipal councilor active re zoning change, met developers. As a member of community

committee, after hearings, recommended that it be approved• SCC: you must examine the nature and context of municipal decision-making (councillors may run

on a particular development platform, etc.)8

• Distinguish partiality by reason of pre-judgment vs. by personal interest

PRE vs POST HEARING STATEMENTS:• TEST: At investigative stage, closed mind test appropriate • ONCE THE Order directing the HEARING was issued – raise standard• statements made during and subsequent to the hearing - • RAB and demonstrate closed mind

• Nfld. Telephone • Commissioner Wells a former consumer rights advocate, sitting as DM• He made several strong statements in press about senior exec pay at telco= “ludicrous”

“unconscionable”• Public hearing on costs of telco• SCC says we want to ensure that we can appoint experts, public advocates, those

involved in industry to tribunals – do not expect judicial neutrality• Standard varies with role and function of board• Statements made before the hearing did not indicate he had a closed mind

b) Independence: • Independence – based on a status or relationship to others, particularly the executive branch of government.

In the case of judges depends on three objective guarantees (Matsqui Indian Band):i. Financial security

ii. Security of tenureiii. Administrative control over adjudicative functions

* these factors are not determinative—vary by context

Issues:1) Delegation/sub-delegation

• Delegation: an authorization or mandate given to a delegate to exercise specific powers on behalf of the Legislature or government entity responsible for implementing a statute

• Delegation may be explicit in enabling statute, or implicit (read statute as a whole, context)• Within government: generally, powers of Ministers may be carried out by civil servants, including

discretionary decisions (but, see Suresh)• Arlidge – allowed a sub-delegation of hearing responsibilities, though generally, cannot delegate

duty to hear (see Jeffs v. New Zealand p. 567)2) Internal Consultations

Consolidated Bathurst : • “Those who hear must decide” rule does not prevent tribunal consultation on policy issues, provided ultimate

decision is reached by tribunal members in accordance with their opinions, on evidence they have heard”• Gonthier (p. 582) – given the importance of the policy issue at stake in the case, and the necessity of maintaining

quality and coherence in Board decisions, full board consultations may take place:• Must be initiated by hearing panel or member of panel, not by the Chair or others (588) • Panel members free to reach own decision• Panel must determine the facts• No new evidence• Discuss policy issues on basis of facts found by panel• New policy or argument must go back to parties

3) Agency Counsel

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• Lawyers investigating or prosecuting shouldn’t help adjudicators (Regie)• Counsel’s interventions shouldn’t favor one side (Brett, p. 618)• Can assist in writing reasons, though decision must be of members (619; 623, Khan; may review reasons,

Bovbel, 626)4) Fettering Discretion (Guidelines must not BIND)

• Thamotheram : • guidelines set standard procedure for hearings, instructing members to allow Refugee Protection

Officers to question claimants first (reverse order questioning)• NOT unlawful fetter, b/c directed members to consider in each case whether circumstances warranted

deviation from practice• Reasonable for Board to set guideline (claimants across Canada get essentially the same hearings)

• Claimants deprived of possible tactical advantage in having own lawyer question first – not rise to level of unfairness

• Did not have force of law – members did not have to comply – not a mandatory rule• Coherence in admin DM is to be fostered• Guidelines may structure exercise of discretion, but not bind

SUBSTANTIVE FAIRNESS/STANDARD OF REVIEW ( Dunsmuir) No threshold issue you’re challenging a decision that has already been made If there are no procedural issues:

o Do NOT do a standard of review analysis o If, after applying five Baker factors, procedural fairness failure – then court grants a remedy (Cardinal)

Legislatures can’t insulate tribunals from jurisdictional or “rule of law” review (Crevier).o Rule of law vs. deference to legislative intent, purpose and expertise of body.

Standard of review analysis applies to both an application for JR and a statutory appeal Where there is right of appeal, does NOT necessarily mean the standard is correctness (CB 705)

Two standards of review (Dunsmuir): 1) Correctness: Court may undertake its own reasoning process to arrive at the result it deems to be

correct.2) Reasonableness: Reasons in decision must stand up to a “somewhat probing examination”.

Unreasonable only if there is no line of analysis w/in the given reasons that could reasonably lead tribunal from the evidence to its conclusion.2 elements: i) process (existence of justifiction, transparency of DM)ii) outcome (range of possible acceptable outcomes)

Two issues:1) How to decide on the standard of review – “standard of review analysis”2) How to apply the chosen standard

1) How to decide on the standard of review: “standard of review analysis”Step 1: Look to existing jurisprudence. Does it determine in a satisfactory manner the degree of deference for a category of questions?If Not, move to step 2.

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Step 2: Contextual analysis of relevant factors: (para. 64, CB 686)• (1) presence or absence of privative clause• (2) purpose of tribunal (enabling legislation)• (3) nature of question at issue• (4) expertise of tribunal

(may not all be necessary)Tendency toward ‘reasonableness’ standard where:

• Questions of fact, discretion, policy, or where legal issue intertwined with factual• Privative clause • Tribunal interprets own statute or one close to its function• Tribunal has expertise in application of general CL rule in specific statutory context• Q of L not of central importance to legal system, and within DM expertise

Tendency toward ‘correctness’ standard where:• Q of law of central importance to legal system, outside DM expertise• Division of powers, constitutional• True questions of jurisdiction/vires• Jurisdictional lines between competing specialized tribunals

In-Depth Analysis of the Relevant Factors:1. Presence or absence of a privative clause or statutory right of appeal [52] Presence of privative clause and its strength militate in favor of deference. Presence of broad right of appeal or requirement for a certified question: less deference. Statutory silence is neutral and “does not imply a high standard of scrutiny” (Pushpanathan).

i. CONSTITUTIONAL LIMITS (Re Residential Tenancies (1981):1. Does the power or jurisdiction conform to power/jn of superior courts at

Confederation?

2. Can the power, viewed in institutional setting, still be considered a judicial function?

3. Is the function so wide-ranging/altered so as to negate court’s exclusive jurisdiction?

4. If YES, YES and NO, tribunal unconstitutional

Crevier Test:Where a provincial legislature purports to insulate a statutory tribunal from any curial review of its adjudicative functions, the insulation encompassing jurisdiction, the provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court; also p. 715

2. Expertise of the tribunal relative to the reviewing court on the issue

Deference warranted where tribunal has expertise relative to courts and when the question under consideration falls w/in scope of this greater expertise.

A reviewing court must:o Characterize the expertise of the tribunal

Can be garnered directly from statute or indirectly from composition of board, its accumulated experience and institutional features.

Looking to individual expertise of members is questionable.o Consider its own expertise relative to that of the tribunalo Identify the nature of the specific issue relative to this expertise.

Militate for deference: Questions of fact tend to be more w/in tribunal’s expertise (Chamberlain).

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Questions of law that are very technical and related to the tribunal’s expertise (Corngrowers, Barrie).

Where tribunal plays a role in policy development (Pezim ) Militate against deference:

Questions of law generally Charter or constitutional interpretation (Trinity)

Idea that expertise of the tribunal is the key factor (Southam).3. Purpose of the legislation and the provision in particular

Consider general purpose of statutory scheme w/in which the administrative decision is taking place the more the legislative purpose deviates substantially from normal role of courts, the more this suggests the legislature intended to leave the matter to the discretion of the administrative decision maker.

More deference if statute:o Intended to engage, resolve, and/or balance competing policy objectives or the interests of

various constituencies (polycentric issues);o Concerned with protection of the public;o Requires a tribunal to select from a range of remedial choices or administrative responses;o Indicates decision maker should “have regard to all the circumstances as it considers relevant”

or grants broad discretionary power; o Asks tribunal to deal with issues of a broad, specialized and technical or scientific nature

Less deference if statute seeks to resolve disputes or determine rights between two parties.4. Nature of the question – law, fact, or mixed law and fact If finding being reviewed is one of pure fact (e.g. what actually took place btw parties) more deference. If issue of pure law (e.g. what legal test to apply; statutory interpretation) less deference, particularly

where the decision will be one of general importance and great precedential value. May be distinguished from questions of mixed fact and law by their potential to apply widely to

future cases as precedent (Southam). If question of mixed fact and law (e.g. application of legal test to facts) more deference if the question is

fact-intensive and less deference if it is law-intensive. Also, jurisdictional or preliminary questions almost always favour no deference (Pushpanathan) and highly

discretionary decisions attract high deference (Suresh).

Pushpanathan : Refugee claim denied by IRB since guilty of acts “contrary to purposes and principles of UN” (drug

trafficking), therefore an exception to UN Refugee Conventiono SCC held: IRB erred in law – correctness – IRB’s interpretation of exception to “basic human rights

guarantee” in refugee convention IRB had Limited expertise in basic human rights matters (para. 47) No relative expertise (to courts) (para. 45)

o Therefore, correctness standard applied

o Trinity Western University suggests that the nature of the question may be critical—courts have pre-eminence over matters of law, and this may push toward correctness review.

HR determinations are reviewed on correctness standard (Mossop) Interpretation of general international law: correctness also (Pushpanathan)

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5. Discretion Discretionary decision is one that admits a choice between equally valid options (Baker) Dunsmuir , para. 53: Where the question is one of discretion, usually deference Baker , CB 54: law does not dictate a specific outcome, or DM is given a choice of options within a statutorily

imposed set of boundaries THUS, Deference – except for bad faith, improper purpose, irrelevant considerations ABUSE OF DISCRETION: Roncarelli , CB 956

o No legislative act can, without express language, be taken to contemplate an unlimited, arbitrary power exercisable for any purpose

o There is always a perspective within which a statute is intended to operate

• Suresh :o If the Minister considers relevant factors, Court may not re-weigh themo Court may intervene if decision is not supported by evidence, fails to consider relevant factors

• Shell Canada v Vancouver ( pg 980): o Vancouver City Council resolution to refrain from doing business with Shell until it stopped doing

business in South Africa (during apartheid)o SCC held Council had used its statutory discretion for an improper purpose o McLachlin dissenting

2) How to Apply the Chosen Standard*see recent decisions of Khosa and Smith v Alliance Pipeline (reasonableness upheld in both)

o Correctness:

Court reviewing a decision for correctness still requires the court to find an error in tribunal’s decision before substituting its own (Mossup).

A “jurisdictional question” will be reviewed on correctness (Pushpanathan).o Reasonableness:

Test: An unreasonable decision is “in the main not supported by reasons that can stand up to a somewhat probing examination” (Southam).

Decision must be supported by reasons unreasonable only if no line of analysis that could reasonably lead the tribunal from the evidence to the conclusion (Ryan).

Defect can be in the evidentiary foundation or the process by which conclusions are drawn from it (Baker).

Motivations outside the scope of the statute, or not considering evidence relating to the key objects of the statute may make decision unreasonable (Chamberlain, BUT LeBel dissents - suggests that looks like PU analysis).

DEBATE over whether to defer to the tribunal’s understanding of the statute, or to interpret the statute on correctness, then give deference to the decision made within that interpretation (see Bastarache’s Barrie dissent, later approved by Bastarache for the majority in ATCO)

Expertise is the key factor for deference, and interpretation of statute is akin to the administration of statute—something clearly within tribunal’s expertise. (Southam)

Application of analysis in Dunmuir : • Reasonableness standard because:

• Strong privative clause

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• Labour relations context• Legis purpose, fast and cheap dispute res.• Legal question was not of central importance to legal system, and was not outside adjudicator’s

expertise• BUT the decision was held to be unreasonable:

• Decision, based on interpretation of the 2 statutes, unreasonable – not within the range of possible, acceptable outcomes

• He treated non-unionized e’ee as unionized – created show cause requirement for dismissal

JUDICIAL REVIEW/STANDINGRule of Law• Dunsmuir , para. 28 (CB 682): “By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.”• Dunsmuir para. 29 (CB 682) – “Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law”

Judicial Review• Courts retain supervisory jurisdiction over exercise of public powers vested in tribunals/officials (Dunsmuir, (CB 282)• Generally, courts may review administrative decisions relating to the– Substance of the decision– Process by which a decision was reached– Jurisdiction of decision-maker

Procedure for Judicial Review

Nature of standing. - Legal right to initiate proceeding with respect to specific cause of action

Warth v. Seldin: whether complainant is entitled to have court decide merits of dispute Must be sufficiently affected by matter that gives rise to cause of action

o General: suffered injury/damage- form of invasion of legally protected, concrete interesto Injury/Damage: actual or imminent (not conjectural/hypothetical)

- Standing requirement imposed to reserve judicial power for concrete legal issues in actual cases Decided by considering allegations of fact contained in complainant’s pleadings

- Implications: must assert own rights (not that of another person except in limited situations (trust relationships ie: guardian of minor)

Cannot institute legal proceeding for some generalized injury not relating to complaint (including an injury suffered by public at large)

- Exception: Public interest standing (Finlay v. Canada)- limited- Threshold question- cannot hear merits of underlying case if there’s no standing

1) Test for Individual Standing: Where a “person aggrieved” has suffered some “peculiar grievance of their own beyond some grievance

suffered by them in common with the rest of the public” (Friends of Oldman River)

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2) Test of Public Interest Standing: Canadian Council of Churches , CB 1102:

Is there a serious issue raised as to the invalidity of the legislation in question? Has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff

have a genuine interest in its validity? Is there another reasonable and effective way to bring the issue before the Court?

3) Standing for A-G: Generally, Attorney General has standing (Chief Law Officer of the Crown) to commence a judicial review

proceeding or participate as a party or intervenor in case with public law dimensions

4) Standing for Admin/tribunal Decision Maker: Traditionally, DM had no standing on judicial review or appeal (Northwestern Utilities) THIS CHANGED IN Children’s Lawyer , CB 1124

o Adopted new discretionary and contextual approach to standing of tribunal/DM Importance of having a fully informed adjudication of issues before the court Tribunal (specialized, or perhaps only party) may contribute to this Balance with maintaining tribunal impartiality Nature of issue under review important too

5) STANDING FOR CHARTER ISSUES: usually only s.7 will apply in admin challengesDirectly affected party has standing if affected differently than general public. A party that is directly affected by a Charter breach in a law has standing as of right to raise a challenge related to that breach, whether that issue arises during litigation, (Hunt v. T & N Plc ) or whether that individual seeks to raise a constitutional challenge through separate legal proceedings; however, in this latter case, the party needs to be “exceptionally prejudiced”, meaning affected by the challenged statute differently than is the general public ( Vriend v. Alberta ). The courts have often interpreted the scope of those directly affected reasonably narrowly.

604598 Saskatchewan Ltd. (c.o.b. Great Canadian Superbar) v. Saskatchewan (Liquor and Gaming Licensing Commission), (corporation denied opportunity to sue for dancers' freedom of expression, corporation not specifically affected because all bars subject to restrictions);

Stinson Estate v. British Columbia , (estate held to have no standing to sue on behalf of deceased because just collection of assets and liabilities no longer concerned with dignity claims, unless already had initial judgment or at least argued).

The interest, in any event, must not be based on a remote relationship with a policy of a situation where the private litigant is not affected any differently than anyone else (Finlay v. Canada (Minister of Finance)

Charter application to governmental actors. Section 32(1) states explicitly that the federal and provincial governments are subject to the application of the Charter. The result is that the Charter applies to all of their acts. Application of the Charter on this basis, to all the acts of an entity, extends to any entity that is either genuinely part of government or that is substantially controlled by government (Eldridge). The Charter then applies to all acts of the entity, including its private contractual dealings (Lavigne v. Ontario Public Service Employees Union)

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Genuinely governmental entity. The delegation of certain governmental activities to municipal governments simply illustrates the entirely governmental nature of these bodies, and there is no doubt that the Charter applies to all of their activities (Ramsden v Peterborough (City). The same is true of school boards in the absence of distinguishing factors (Chamberlain v. Surrey School District) . The same is also true of an Aboriginal band council in so far as it is exercising powers delegated by the federal parliament (Horse Lake First Nation v. Horseman) although s. 25 of the Charter would make clear that different principles might govern in so far as an Aboriginal governmental authority is exercising treaty-based authority or inherent Aboriginal rights.

Bodies exercising statutory authority. Bodies that are creatures of statute or that exercise a statutory authority of compulsion are similarly part of government and subject to Charter scrutiny.

o Slaight Communications Inc. v. Davidson (labour arbitrator empowered by statute to make decision);

o Eldridge v. British Columbia (reference to statutory authority as part of general discussion of application);

o Blencoe v. British Columbia (human rights commissions exercising statutory powers to make certain decisions);

o Multani v. Commission scolaire Marguerite-Bourgeoys , (educational council entirely creature of statute)

This principle, reasonably clear in other contexts, has led to a mixture of analyses in the context of professional associations.

o Black v. Law Society of Alberta , (applying Charter to law society rules without analyzing application issue; failed s.1 analysis);

o Costco Wholesale Canada Ltd. v. British Columbia Association of Optometrists , (identifying professional association as subject to Charter, although mixing explanations from government control test and governmental act test);

o Keenan v. Certified General Accountants Association of British Columbia , (considering disciplinary process entirely internal to organization and private action not subject to Charter).

Substantial control. An entity under the substantial control of government is subject to the application of the Charter as being effectively part of government. A statutory body whose board of directors is entirely appointed by government is under substantial control so as to be part of government for Charter application purposes (Greater Vancouver Transportation Authority v. Canadian Federation of Students).There are potentially distinctions even between different bodies that may be involved in the same general area of government programming. Where community colleges are substantially controlled by government, they are government for purposes of Charter application

Douglas/Kwantlen Faculty Association v. Douglas College , (members of governing body all appointed by Lieutenant Governor in Council and holding positions at pleasure of government);

Lavigne v. O.P.S.E.U ., (governing body over community colleges controlled by Minister)

Where universities function more independently, they are not under substantial control and thus not part of government.

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McKinney v. University of Guelph , (university's mandatory retirement policy not subject to Charter challenge).

See also, Stoffman v. Vancouver General Hospital, (hospital's mandatory retirement policy not subject to Charter challenge).

Court order. The courts have distinguished between a judge making an order at the instance of private parties and a judge making an order on the court's own motion (Dolphin Delivery). Where a court makes an order at the instance of a private party, its order is merely an enforcement of private law and fails to be considered under the topic of the application of the Charter to private law, further discussed below. However, where a court acts on its own motion in making an order, and is thus carrying out a function as part of government, then its order is subject to the Charter (BCGEU v. British Columbia) Some Charter rights are also obviously rights that are specifically intended as rights against courts, and that courts may thus breach, with the right to a trial without undue delay being an example of such a right (R. v. Rahey). Thus, the Charter applies to a court order where the court acts of its own motion in some matter, thus acting as part of government, or where the court is subject to the natural application of particular Charter provisions.

Application of Charter to government's non-action. The Charter can be applied to government non-action, such as an exclusion from legislation, if the guarantees in the Charter require positive action in that context or require something to be done once governments have already undertaken some initiatives. (Vriend)

Government agent. An individual citizen may act as an agent of the government, and thus as a governmental actor, without being a government employee. Such a situation would arise, for instance, where an individual citizen voluntarily carries out instructions from the government for the achievement of a government purpose (Houle c. Mascouche (Ville)). The crucial question for whether the individual acts as a state agent is whether a relationship with the government is in existence prior to the time of the action under discussion, even if a voluntary and informal relationship, led directly to what the citizen did having been different than what he or she would have done in the absence of this specific relationship with government (R. v. Broyles). The test does require some specificity to the relationship, with general encouragement to citizens in respect of some area of conduct being insufficient to give rise to the necessary kind of relationship (R. v. Buhay). This same test applies even to specific conduct by individuals who are in a frequent relationship with government, such as private security guards, with no concept arising of a “standing agency” relationship but rather a question in respect of any particular act in question as to whether that act arose from a specific agency relationship.

Exemption for parliamentary privilege. Although s. 32 of the Charter indicates that it applies to parliament and to legislative assemblies per se, other constitutional principles enter to slightly limit this application. A constitutional principle of parliamentary privilege continues to operate such that these bodies continue to have unrestricted choice on their own processes and functioning without the application of the Charter (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly). That said, the scope of parliamentary privilege is limited to what is genuinely necessary for legislative bodies to do their work (Canada (House of Commons) v. Vaid. In addition, parliamentary privilege is specifically affected by ss. 17 and 18 of the Charter, which guarantee the use of English or French in debates and proceedings and the printing and publishing of statutes and records in English and French.

6) JUDICIAL REVIEW IN FEDERAL vs. PROVINCIAL COURT Federal courts are statutory courts (ee Federal Courts Act)

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Exclusive original jurisdiction – JR remedies under sections 18 and 28 for federal boards, commissions, or other tribunals

Section 17, concurrent original jurisdiction for proceedings in which relief claimed against Crown Prov. Superior courts (and Federal Courts) may both hear constitutional challenges to jurisdiction of federal

statutory regimes

Prov. Superior courts may issue declarations of constitutional invalidity of federal legislation (Kourtessis) Discretion of provincial superior courts to decline jurisdiction (Reza) CB 1049

Canada v Telezone (2010)• The grant of exclusive jurisdiction to judicially review federal decision makers in s. 18 is best understood as a

reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”.

• This reservation or subtraction is expressed in s. 18 of the Federal Courts Act in terms of particular remedies. All the remedies listed are traditional administrative law remedies and do not include awards of damages. If a claimant seeks compensation, he or she cannot get it on judicial review, but must file an action.

• Industry Canada issued a call for personal communication services licence applications. The accompanying policy statement set out criteria, said that Industry Canada would grant up to six licences .T submitted an application. There were only four successful applicants and T was not among them. T filed an action against the Federal Crown in the Ontario Superior Court of Justice for breach of contract, negligence and unjust enrichment, and sought compensation for claimed losses of $250 million.

• It claimed that it was an express or implied term of the policy statement that Industry Canada would only issue fewer than six licenses if fewer than six applications met the criteria. Since its application satisfied all the criteria, it says, Industry Canada must have considered other undisclosed factors when it rejected T’s application.

• Court analyzed as access to justice issue. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary costs and complexity.

7) Remedies available upon Judicial Review (NON-CHARTER) Certiorari – to quash a decision already taken, for excess of jurisdiction. Mandamus – to compel a decision-maker to perform a duty it is mandated to perform Test – p. 1061 Prohibition – prevent proceedings/orders Declaration – judgment that determines the legal position of parties or law that applies. Habeas Corpus – produce body from detention (bring before the court) Quo Warranto – (by what warrant/by what authority?) inquire into what authority exists to justify acts

The JRPA (Ont) has simplified the technicalities – now make application for JR pursuant to JRPA8) Stay of Proceedings:

Generally – application for JR does not stay a proceeding Application to stay: Manitoba (AG) v. Metropolitan Stores , p. 1066 3 part TEST:

i. There is a serious question to be tried (not frivolous and vexatious)ii. Irreparable harm – p. 1075, RJR, where public body was enforcing legislation, courts should

presume irreparable harm from restraintiii. Balance of convenience –must take into account the public interest

9) Monetary Remedies (NON-CHARTER):•Cannot obtain damages on an application for judicial review

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•Must commence action or application•Crown now generally liable for most causes of action, although may be special notice periods

Money Mistakenly Paid•Example – money paid under an unconstitutional statute, ultra vires by-law, or unlawful order•Kingstreet Investments v. NB•NB attempting to retain unconstitutionally collected taxes (user charge applied to NB clubs when purchasing alcohol)

Tort Liability•Abuse of power by statutory authority – misfeasance in public office, or bad faith in exercise of public power•Odhavji Estate CB 1246 –Public officer engaged in deliberate and unlawful conduct as a public officer–Aware that his conduct was unlawful and likely to harm the plaintiff (page 1249)

10) Court’s Discretion to Refuse an Application for Judicial Reviewa) Adequate alternative remedies

Party must exhaust all other adequate means of recourse for challenging the tribunal’s actions This may include reconsideration if statute provides; internal or statutory appeal if available;

grievance arbitration if applicable Harelkin : Student required to withdraw from University, appeal dismissed without hearing by a

university committee (NJ breach), he applied to court for JR, and did not pursue his statutory right of appeal to a committee of the University Senate

Matsqui : Factors regarding Adequate Alternate Remedy (AAR) – NOT whether BETTER:–Convenience of the alternative remedy–Nature of the error–Nature of the appellate body (investigatory, decision-making, remedial capacities)–Also, from Harelkin, burden of previous finding, expeditiousness, cost

b) Prematurity Absent exceptional circumstances, parties cannot proceed to the court system until the

administrative process has run its course. Courts should not interfere with ongoing administrative processes until after they are completed, or

until the available, effective remedies are exhausted. Prevents fragmentation of the administrative process and piecemeal court proceedings Eliminates the large costs and delays associated with premature forays to court Avoid interlocutory judicial review when the applicant for judicial review may succeed at the end of

the administrative process anyway Further, only at the end of the administrative process will a reviewing court have all of the

administrative decision-maker’s findings Findings may be suffused with expertise, legitimate policy judgments and valuable regulatory

experience Consistent with Dunsmuir JR approach Howe/Lorenz CB 1167

c) Mootness Court may decline to hear a case which raises only hypothetical/abstract questions Moot if will not have a practical effect on rights of parties May exercise discretion to depart from principle (Borowski, CB 1180)

d) Delay

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Federal Court – statutory limitation period to commence JR, 30 days from communication of the Order, s. 18.1(2)

Ontario – no statutory period, in practice, 30 to 60 days, b/c Court has discretion to refuse Friends of Oldman River , CB 1182: unreasonable delay may bar applicant from obtaining a

discretionary remedy, particularly where delay would result in prejudice to other parties who have relied on the challenged decision to their detriment (CB 1184)Fact specific and contextual

e) Collateral attack R. v. Consolidated Maybrun CB1189 Director of MOE issued clean-up order under EPA, appeal from the order lies to Environmental

Appeal Board, and to Divisional Court. The land owner did not comply with order, and did not appeal the order or seek JR. Subsequent prosecution under EPA for failure to comply with Order

SCC: Company could not challenge the validity of the order in its defence to the prosecution This is a “collateral attack” on the Order, which undermines the integrity of the administrative

structure and its appeal mechanisms 1. Wording of the statute issuing the order2. Purpose of the legislation3. Availability of appeal4. Nature of collateral attack5. Penalty on conviction

Where an attack on order falls within specific jurisdiction of an admin tribunal, indication legislature wanted tribunal to decide question.

f) Clean Hands Discretionary bar to granting JR remedy (Homex, CB 1196) Misconduct, misleading court, fraud – etc.

g) Waiver Court can deny relief where a party has waived or acquiesced Example: failure to raise RAB at the hearing, but only raised after if party loses (“lying in the

weeds”)h) Balance of Convenience

11) Charter remediesAffirm, reverse, quash, vary, modify the verdict, penalty or sanction12) Charter: Money Remedies

Vancouver (City) v. Ward: Charter s. 24(1) may provide constitutional damages for breach of a claimant’s Charter rights TEST:

1) Establish that a Charter right has been breached;2) Show why damages are a just and appropriate remedy, having regard to whether they would fulfill one

or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

3) State has the opportunity to demonstrate, that countervailing factors that render damages inappropriate or unjust, such as:

existence of alternative remedies Interference with good governance such that damages should not be awarded unless the

state’s conduct meets a minimum threshold of gravity.

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4) Fourth step, meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. Compensation goal -restore the claimant to the position he or she would have been in had the

breach not been committed. Vindication and deterrence goals Rationality and proportionality. Fair to both the claimant and the state. Take into account the public interest in good governance, the danger of deterring governments from

undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.

Side issue: When does a Tribunal have jurisdiction to hear a Charter Challenge? TEST FROM Martin : admin tribunals which have express or implied jurisdiction to determine questions of law

arising under a legislative provision are presumed to have jurisdiction to decide the constitutional validity of that provision, as this is also a question of law (Martin)

o Must determine legislative intent (“trilogy” - Cuddy, Tetreault, Weber) Two part test to determine legislative intent:

o Does legislation explicitly or implicitly allow this tribunal to actually deal with questions of law?

o If so, can it decide “general” questions of law?o Should consider:

Composition and structure of tribunal Appeal route from the tribunal Expertise of the tribunal

o Three principles arise from the “trilogy”: Court will not give any deference to tribunal – SOR will be correctness No stare decisis – not binding Legislative intent is the driving force (not s. 52 of the Constitution)

o Cooper splits the “trilogy” in 3 different ways – Martin clarifies test for ascertaining legislative intent re. Charter challenges:

Step 1: Determine legislative intent (express or implied) for tribunal to decide any questions of law.

Express jurisdiction must be found in terms of statutory grant of power. Implied jurisdiction discerned by reference to factors such as:

o Statutory mandate of tribunalo Whether deciding questions of law is necessary to fulfilling its mandateo Whether the tribunal is adjudicativeo Practical considerations, such as its capacity to consider legal questions (BUT

practical considerations never trump clear statutory implications) Step 2: Rebutted only by showing legislative intent to exclude Charter issues. Onus on party

challenging jurisdiction to: Show explicit withdrawal of authority over Charter issues, or Convince the court that the statutory scheme clearly shows that the legislature intended

to exclude the Charter from the scope of questions of law to be addressed by the tribunal.

o Appropriate forum:

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If tribunal finds law violates Charter, can award any remedy within its power (Weber; R v Conway).

If the tribunal has jurisdiction to decide Charter issues, it does NOT have jurisdiction to decline to hear something where properly seized of the matter (Tranchmontagne)

In case of overlapping jurisdiction, use discretion to find “best fit” (Morin): Look at what legislation says about jurisdiction, and Look at nature of dispute to see if falls w/in jurisdiction.

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