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admin_minor_w04_1

VIEWS: 5 PAGES: 90

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INTRODUCTION
Professor: Janet Minor
100% Final Exam (Open Book)

What is Administrative Law?
 Public law deals with the relationship between the individual and the state
 Both public law and constitutional law deal with how the government may exercise its powers
 Administrative law governs the administration
           o The administration is the legislature or executive
                    The executive is the cabinet and the premier
                    The legislature is the elected officials
           o The court defines and limits the powers of the executive
           o The court also provides remedies when the executive oversteps its boundaries
 Administrative law governs the relationship between the executive and citizens (i.e. governs the
  administration)
           o Administrative law is designed to protect citizens from abuse of power.

Analyzing Administrative Law Problems
 What is the decision the government is making and who are the actors?
 What is the legal authority and what are the procedural requirements exercising that authority?
 What are the remedies if there was a violation of authority (ultra vires) or procedure?

Categories of Administrative Law
 Employment
 Regulated industries
 Social control programs – ex. Regulation of mentally ill, immigration rules, social welfare programs,
   healthcare

How does one get to the courts to challenge government action?
 Directly – in cases of breach of contract, tort actions, etc.
 Tribunals – after appearing before a tribunal, the citizen may appeal to the court

Historic Roots of Administrative Law
 Historically, the King was immune from court actions
 However, there were prerogative writs which were applications by citizens to the courts for a
    particular remedy:
             o Certiorari – quash government decision
             o Prohibition – prohibit government from doing something
             o Mandamus – requirement to do something
             o Habeas corpus – relates to the legality of detention
 The granting of a writ was discretionary
 These writs were used until the 20 century in Canada
                                       th

 In the 1970‟s, legislation was passed which eliminated the need to determine which writ one needed
    to apply for. Instead, one asked for judicial review.
             o Judicial Review Procedure Act
                      Encompasses the former writs and is clearer as to how one applies for a judicial
                         review.
             o Statutory Powers and Procedures Act
                      Sets out legislative scheme and procedures that certain tribunals must follow.
                                                                                                     2



Where is the authority to act usually found?
Statute:
 Must use principles of statutory interpretation
 Must determine who is authorized to act
 Must determine jurisdiction to act

Fairness in review process
 The precision of what is required depends on the decision that is being made
 Usually includes:
             o Complainant has the right to be heard
             o The right to hear the other side
             o The right to written reasons
 People who challenge government decisions often claim that the decision maker took inappropriate
    factors into consideration

Remedies
 One can ask for the decision to be quashed
         o Sometimes, the court refers the decision back with specific directions
                                                                                                        3



EVOLUTION OF STANDARDS OF REVIEW

There are two concepts which affect standards of review:
1. The source of authority to review.
2. The process used to carry out that authority.

Source of Authority
o Ministers delegate authority to civil servants and boards
o Boards are appointed by the Lieutenant Governor in Council to perform:
       o Regulatory functions
       o Adjudicative functions
o Such functions expanded in the 1980‟s
o Boards became experts in subject areas whereas judges have remained multi-disciplinary
       o Courts don‟t have policy expertise or consistency of decisions of boards
       o Boards also encourage participation of citizens in issues that affect them and increase
           transparency

Duty of Fairness

Natural Justice
o Requires that the justice system ensure that the process is fair
o Led to and replaced by the duty of fairness
o Originally, only judicial or quasi-judicial decisions were governed by natural justice
o The government had to follow procedure, especially when interfering with personal property
o Two main components:
   o Must hear the other side (hearing must be granted to those affected by the decision)
   o Decision maker must be free of bias and the appearance of bias

Rights under Natural Justice
o Principles:
   o Notice of something occurring
             Allows parties to prepare case
             Must be given to all interested parties
             Must be sufficient
   o Evidence must be put forward
   o Impartial tribunal / decision maker
             Without bias (personal, financial, etc.) or a pre-determined view
o Trial like protections are very formal, and are not appropriate for all statutory decisions
o Procedural rights are narrowed by courts through limiting the type of case to which natural justice
   applies

R. v. Legislative      -   Lord Hewat set a base that caused problems for a long time (40 years)
Committee of the       -   Adopted a formula on applicability of rules of natural justice and availability of
Church Assembly,           prerogative remedies
[1928] 1 KB 411                1. The power that is exercised must be determining rights of subjects
                               o had to affect individuals
Adopted by                     2. There has to be a superadded duty to act judicially
Canadian courts.               o when you examine the statute – must be a super-added duty to act judicially
                       -   First part of test interpreted as precluding possible application of natural justice in
                           situation where respondent was not acting a in final and determinative manner:
                           Guay v. Lafleur [1965] SCR 12 (Que).
                                                                                                             4



Ridge v. Baldwin (adopted by Nicholson):
o The key to both cases was that the police officer was an office holder (probationary and could be let
   go for any reason)
o In both cases the court found an obligation to observe procedural fairness in such circumstances
   despite the fact that the officers were probationary employees
o The court required an oral or written hearing. Therefore, the officer was not necessarily entitled to an
   oral hearing.
o Therefore, the principles of fairness extend beyond judicial decisions or quasi-judicial decisions
   (administrative decision must abide by procedural fairness)
   o If a tribunal is one which attracts natural justice rules, they are bound by stricter rules than a
        purely administrative board
o Where individual rights are affected, natural justice is required  no more need for judicial function

Nicholson (See detail below)
o The SCC held that the ON CA did not consider common law duties
   o Duty of fairness
   o Maybe natural justice or an extension of it
o Court found that office holders deserve fair treatment
o Court held that holders of an office at pleasure are not entitled to the same protections as one who
   works 18 months, but that they are entitled to a protections which ensure a general duty of fairness
o The consequences of this decision were serious:
   o Government could no longer dispense with an office holders livelihood without reason
   o Office holder was entitled to notice regarding why they were fired and an opportunity to be heard

Martineau
o Case had to do with prison discipline
o There is a spectrum of the type of decisions which attract rights
o One end of the spectrum is judicial decision (or decisions like judicial ones)
o The other end of the spectrum is decisions which attract no rights
o It is not important to distinguish between cases which attract no rights and judicial decisions, but one
   should rather look at procedural fairness in context.
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FAIRNESS
Cases which discuss fairness, not necessarily evolution of natural justice.

Cooper v.               -   Mr. Cooper had obligation to send notice to board of works saying he was going to be
Board of Works for          building a house (had to give 7 days notice)
Wandsworth              -   Board of Works demolished partly built house w/o any prior notice
District (1863)         -   Cooper was a builder – claimed to have sent notice to the board
                        -   Claimed that he began construction 5 days from the day he claimed to have served
                            notice
                        -   Cooper brought an action for trespass and damages

                        Decision
                        - “Not even God failed to provide Adam and Eve with a hearing before casting them out
                           of the Garden of Eden” – Fortescue J. – Dr. Bentley’s case (1723)
                        - Held Board should have given notice to Cooper and allowed him to be heard
                        - Power to demolish house w/o this is a power the legislature never INTENDED to
                           confer
                        - No real harm to Board to give him hearing
                        - Held – board is exercising a statutory power – exercise of this statutory power is
                           subject to procedural fairness before you take away property rights
                        - Qualification of the right to procedural fairness when it impacts property rights to
                           judicial decisions NOT accepted
                        - Result – Board exceeded statutory authority and Cooper gets damages
                        - Don‟t want government actors making these kinds of decision w/o learning all the
                           relevant facts
                        - First time afforded these rights outside of judicial context – focused on context
                        - This is a landmark decision – no foundation for Board to give notice in the basis of
                           the legislation
Nicholson v.            - Facts: police constable – under police act – provisions about how a constable could
Haldimand-Norfolk          be penalized – “no constable could be penalized except after a hearing … nothing in
Regional Board of          that prior statement to dispense with a constable‟s services within 18 months after
Commissioner of            that person became a constable”
Police [1979] 1 SCR     - Nicholson was a constable for 15 months – Nicholson sought judicial review
311 (Ont.)              - Question – statute grants hearing for those with 18 months and not for those with any
                           less
Duty to act fairly      - Divisional Court – expends great effort to try to figure out which class he belongs in
extended to admin       - ON-CA – classifies Nicholson as an at pleasure office holder
or executive                    o Clear probation period
decisions.                      o Ignores trend that there may be duty outside of common law statute
                        - Nicholson won at TD
Identification of       - Board won at CA
interests at stake
and consequences        Laskin
as factors to be
                        - Police Board – creature of statute – only powers derived by statute
considered.
                        - Went back to Ridge v. Baldwin
                               o 1. Master/servant (contractual agreement) – does NOT engage any
Rejects judicial –
                                  procedural fairness rights
quasi-judicial
                               o 2. Holding an office at pleasure – gov‟t can dismiss an employee
classification
                               o 3. Have to have cause to be dismissed – appointed under statute – have to
                                  have some right to procedural fairness
                               o characterizing the right class – statute may expressly, scheme of the act for
                                  intention of government – is there free discretion to dismiss
                                                                                  6



-   the distinction of “at pleasure” v. not “at pleasure” – should not be so baldly
    stated
-   even “at pleasure” there should be some limit on arbitrary gov‟t decision (“obiter”)
-   even if “at pleasure” there is some minimum protection
-   found that police constable couldn‟t be dismissed w/o cause (not “at pleasure”) – can
    be considered a holder of an office
    (v. employee of a Board)
         o exercises authority under the Police Act
         o member of civilian force
-   this does not preclude clause in statute or agreement that the employee can be
    terminated w/o cause with notice
-   common law requires notice for termination w/o cause
-   Critiques approach of CA
         o Strict literal “expressio unius” approach of statute – express wording of statute
             wrt to 18 months of service
         o If statute gave right to one person – the gov‟t turned its mind to it – doesn‟t
             confer rights to another purpose
         o This has effect of reducing constable to master/servant relationship just cuz <
             18 months
-   Laskin agrees with CA to this extent
         o Start with statute but don‟t necessarily finish there
         o Decision is very pragmatic
         o Look at results of interpretation of statute – if you have 18 months you get
             protection – but if you look at 17 months and 3 weeks – no protection – does
             this make sense – is this fair
         o Rejects statutory interpretation approach on this basis
-   Majority found if you have less than 18 months of service – don‟t get full protection of
    statute but you are entitled to something – the “something” will depend on the
    context
-   Laskin recognizes classification of function of admin body as judicial v. admin –
    not very helpful
-   Interest at stake : Employment
-   Consequences: Loss of job  serious
-   Issue is not that cop shop could not dismiss him – but he is entitled procedural
    fairness – i.e. to present his case – modicum of procedural fairness is right to hearing
-   Reason for dismissal was economic – no resources for full-time employee – so
    despite that this is a good decision for the board – still require procedural fairness
-   Board should make certain it has not made a mistake of some fact or circumstance
-   Public interest in knowing that government actors – cannot willy-nilly use powers
    without some grant of procedural fairness
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TENSIONS EVEN AFTER NICHOLSON
-   1. Have to determine when procedural rights are triggered
-   2. Nicholson did not provide guidance on the type of decisions which trigger this fairness
-   3. What is guidance on how much procedural protection someone receives?
-   4. What are indicators on what you get more or less?
-   5. Nicholson contains the distinction between judicial and administrative – Has now been totally done
    away with:
        o This dichotomy is still being drawn – in federal court act prior to 1992 – to figure out whether
           you had right to judicial review – depends on nature of question
        o In 1992 – distinction was done away with  all administrative decision – if there is a right of
           judicial review – s. 28 Federal Courts act – defined what decision went to Federal Court of
           Appeal – all other ones went to trial division

Cardinal v. Director   -   Prisoner‟s procedural rights considered
of Kent Institution    -   Concerned decision by prison officials to dissociate an inmate for security reasons
(1985) SCC
[1985] 2 S.C.R. 643    LeDain
                       - Prior movement – reluctance to delegate rights to inmates
                       - Held – dissociation  serious consequence for prisoner
-   restatement of     - situation of emergency  no requirement of notice and hearing - Original admin
    principles of          decision
    Nicholson          - Subsequent decision – to continue segregation – required hearing and reasons
-   indicates how      - Futility argument – no way prison officials will change mind – why have hearing?
    we are moving               o Denial of a right to fair hearing will always render a decision invalid – whether
    forward                         or not … would have resulted in different decision
                                o Not for court to deny right on speculation on what would have happened
                       - An untended effect – was the re-awakening of the distinction/classification
Board of Education     - Dealt with director of education – refused a renewal of K for a shorter term than
of the Indian Head         original engagement
School Div No.19       - Statute – indicates you can enter into written contract to govern details of agreement –
of Sask. V. Knight         among details are notice provisions for termination w/o cause
[1990] 1 SCR 653       - Statute also provided for termination w/o cause with 30 days notice
(Sask) p116            - Written contract says you can be dismissed w/o cause but with some notice
                       - Agreement – renegotiate contract – if no agreement – 3 month notice and dismissal
                       - QB Court found – Mr. Knight was not wrongfully dismissed – Knight should not be
                           dismissed w/o cause – but he got minimum requirements of procedural fairness
                       - CA – allows Knight‟s appeal – notwithstanding there is a K – notwithstanding statute
                           provisions – kind of employee who could not be dismissed w/o cuz
                       - statutory employment
                       Prof
                       - increasing focus on contextual approach – increasing focus on nature of decision
                           maker – dictates that there is a public interest in conferring some duty of fairness in
                           the process
                       - Extension of Cooper (right to procedural fairness) to broader range of cases
                                                                                    8



DECISION
LHD‟s decision (majority)
- Procedural fairness was due, but was satisfied
- LHD articulates 3 considerations to determine whether there is a Right to PF
1. Nature of decision
         o No longer need to distinguish judicial v. admin decision
         o Following Nicholson – distinction less important – since duty to act fairly (and
             judicially) have roots in principles of natural justice
         o All administrative bodies don‟t have to act according to rules of proc fairness
              this depends on context
         o Case at bar – decision was a final and specific nature – directed at
             terminating employment – hence could possible entail duty to act fairly
         o After this decision, the question is essentially what level of fairness is required
             (not whether fairness is required in the first place)
2. Relationship between the administrative body and individual
         o employment relationship
         o consider the 3 classes in Ridge v. Baldwin
         o falls into at pleasure category – not pure master/servant – some public nature
             to it – “sufficient statutory nature”
         o justification of granting hold of office at pleasure right  fairness dictates that
             administrative body making decision be cognizant of all relevant
             circumstances surrounding employment and termination
         o procedural guarantee – chance to defend self (not substantive)
         o again – futility argument does not fly
         o Public interest in check of government powers and in government observing
             procedural rights in even terminating an at pleasure employee
         o Distinction between class 2-3 – “anachronistic” for purpose of determining if
             there is duty
         o Hints – content of fairness maybe reduced for “at pleasure” employees
3. Effect of decision on individual rights
         o if decision is a significant one and important impact on the individual
         o employment is important – kind of interest which triggers Procedural
             Protection
- if after examining the 3 question – come to conclusion there is still some right to
    procedural fairness  then look at statutory framework to see if there is an express
    exclusion of these rights
- presumption is there is a general right to procedural fairness that exists
    independent of the statute/contract  require EXPLICIT or CLEARLY IMPLICIT to the
    contrary
- Concept of independent right to procedural fairness – employee of government
    agency – gets its power from statute – the exercise of those powers – must be in
    accordance to fundamental principles of admin law – includes a duty of fairness
- Final Decisions attract PF whereas prelim decisions may not
Content of Duty to Act Fairly
- content will depend on circumstances … not based on jud v. admin distinction
- At pleasure  content of fairness is minimal
- Notice for displeasure + hearing is sufficient
Legislative and “general”
- the more legislative and general a decision is the less likely it will attract admin
    fairness v. decision which are more administrative and specific
Application
- Negotiation session – between claimant‟s attorney and Board – sufficient notice
- Also, had ample opportunity to present case
- Requirement of procedural fairness will be satisfied even if no “structured hearing”
- No formal giving of reasons but a formal giving of reason would achieve no more
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                        Sopinka (dissent)
                        - Went back to traditional approach of categories
                        - As “at pleasure”  does not attract duty of procedural fairness
                               o Inconsistent with CL which allows employer to terminate w/o reason
                               o Does not shut door on duty
                        - Correct Approach
                               o Review statute, regulation , contract first
                                          Have to find something in statue which gives the right to a hearing
                               o Takes on LHD – about presumption of procedural fairness
                               o If cannot find it in the statute – have to look at the circumstances
                        - therefore if legislation wants to grant non-reviewable rights to an actor – the statute
                           must be very explicit in establishing them
                        - the framework (non-classification) push – promotes flexibility – but subtracts from
                           predictability
                        - the more court-like a decision is – the more likely that traditional procedural rights will
                           have to be followed
1992 Federal            - Particular need to make distinction between judicial and administrative function
Courts Act                 disappeared
                        - Domains where this distinction still plays role
                               o Application of minimum procedural rules in Ontario Statutory Powers
                                    Procedures Act
                               o Right to determination by an independent and impartial tribunal (s. 23)
                               o Procedural rights in chapter 3 of Québec Charter (s. 56 – attach only to
                                    judicial and quasi-judicial tribunals)
                               o Doctrine of res judicata to a statutory authority‟s decision

There is a general common law duty of procedural fairness for a public authority making an
administrative decision which is not of a legislative nature and effects the rights privileges or
interests of an individual.

LIMITATIONS ON SCOPE OF DUTY OF FAIRNESS

1) Legislative and Policy Decisions
o Does not attract procedural fairness
o Because the political process is based on policy and the legislative agenda of the party in power
o Furthermore, the opposition parties act as a check on the majority‟s power by questioning legislation
o If the courts were to apply a duty of fairness on the passing of legislation, it would be impractical
    o Who would the legislature give notice to?
    o How would affected parties make submission?
    o What purpose would opposition serve?

East York Case
o Arguments against the amalgamation of Toronto into a mega-city included the fact that the citizens
   had not been consulted beforehand
o Essentially, the court said that the legislature is given the power to pass any legislation it sees fit. If
   the electorate does not like the legislation, they can oust the politicians during the next election.
                                                                                                         10



Canada (AG) v. Inuit Tapirisat of Canada
o A stature gave the CRTC the power to determine what the appropriate rate would be for a particular
   utility (here Bell Canada)
o Bell asked for a rate increase according to the procedure
o The Inuit group intervened, arguing that in order for the rate to be increased the service should be
   improved
o The group was unsuccessful
o The group appealed to Cabinet
o Cabinet dismissed the appeal
o SCC:

Estey J
- Issue - duty to observe natural justice, at least a lesser duty of fairness incumbent on Cabinet in
    dealing with parties under a submission of petition under s. 64(1)
- I.E. Cabinet is not automatically immune to pf
- Not issue of fulfilling condition precedent
- No need to classify into “admin” or “quasi-judicial”
- S. 64(1) burdens the CRTC with a framework but NOT the Cabinet
- Issue of technique of review – executive branch cannot be denied to right to resort to its staff – to
    dept personnel concerned with subject matter – to advice of ministerial members of council who are
    concerned with policy issues
- Council in past had oral hearings (in 20‟s) – but government has grown
         o Everyone with a phone has an interest – could intervene – would be impractical
- Question of construing statutory scheme to see if in any intention for the principles of
    fairness to apply
- Apparent the judgment of Parliament that this is an area inordinately subject to the changing public
    policies and hence it has been reserved for the final application of such a policy by the executive
    branch
- Prof – focus on nature of decision maker
         o Figure out based on nature of decision maker and nature of decision (from statute)
- Given this interpretation of s. 64(1) – no duty of fairness - no reason to provide reasons or to hold
    any kind of hearing or even acknowledge receipt of petition
- Cited Bates v. Lord Hailsham of St. Marylebone
         1. Subject Matter not unique to this applicant
         o group affected – you lose
         2. Circumstances in which power exercised
         o cabinet – no appeal – total discretion
         3. Nature of Body
         o Cabinet  policy making
- Case where executive branch has been assigned a function performable in the past by the
    Legislature itself where the subject matter is not an individual concern or a right unique to the
    petitioner, different considerations may arise.
HELD – No PF for legislative matters
         o This is a very deferential approach
         o Given that the decision is a political one, the legislature can consult who they see fit
         o There is no need to hold a hearing, or even to acknowledge receipt of a petition
Mason J
- don‟t accept view statutory discretion given to Governor in Council is absolute or unlimited
- Executive council not adapted to making judicial hearing
- Adapted to making decision based on recommendation of the responsible Minister
- For this reason – court less inclined to hold Governor in Council is under obligation to comply with
    the rules of natural justice than it would if statutory officer had similar discretion onto him
                                                                                                        11



General v. Specific
- However, the function reposed on GIC is the granting and refusing of application to renew approval
   to act as insurer  not on issues of policy but by reference to financial and commitments of the
   applicant  would unquestionably attract a duty to comply with NJ if imposed on statutory officer
   AND the diff between nature and character of GIC is not sufficient to deny existence of some duty to
   accord natural justice
- Impossible to suppose Parliament that GIC will conduct judicial hearing but it IS possible to attribute
   to Parliament the intention that the GIC would act in conformity to NJ  reasons and op to make
   submissions
- GIC and w/o undue inconvenience give the appellant an adequate opp to present its case either
   by delegation or to the responsible Minister the function of considering the applicant‟s written app

FAI Insurance (Australia)
- Dealt with renew of insurer providing workers comp insurance from Governor in council
- Approval given for 6 months with warning about approval criteria not met
- Later refused
- Request by FAI for reasons and opportunity to make submissions
- This was refused
Mason J
- don‟t accept view statutory discretion given to Governor in Council is absolute or unlimited
- Executive council not adapted to making judicial hearing
- Adapted to making decision based on recommendation of the responsible Minister
- For this reason – court less inclined to hold Governor in Council is under obligation to comply with
    the rules of natural justice than it would if statutory officer had similar discretion on him
General v. Specific
- However, the function reposed on GIC is the granting and refusing of application to renew approval
    to act as insurer  not on issues of policy but by reference to financial and commitments of the
    applicant  would unquestionably attract a duty to comply with NJ if imposed on statutory officer
    AND the diff between nature and character of GIC is not sufficient to deny existence of some duty to
    accord natural justice
- Impossible to suppose Parliament that GIC will conduct judicial hearing but it IS possible to attribute
    to Parliament the intention that the GIC would act in conformity to NJ  reasons and opp to make
    submissions
- GIC and w/o undue inconvenience give the appellant an adequate opp to present its case either
    by delegation or to the responsible Minister the function of considering the applicant‟s written app
o Difference between this case and Inuit Tapirisat is that in this case the government is removing a right
    that was previously conferred upon a party
o However, court did not consider the fact that lower forms of intervention were possible (ex. Written
    submissions).

Appeals to Cabinet Regarding the Passing of Legislation in Ontario
o In Ontario, there are some appeals to the cabinet
   o For example, the Ontario Municipal Board Act allows for appeals to cabinet
o Whoever makes the appeal is obliged to give the other parties the application
o The parties are allowed to make a written response
o The Ministry makes a written response to cabinet which is not given to other parties (on the rationale
   that it is advice to cabinet)
o The material is then summarized and a recommendation is made to cabinet
o Cabinet then makes a decision
o Finally, the applicant is informed of the decision
                                                                                                         12



2) Delegated Authority

Re Pembroke Civic Hospital v. Ontario Health Services Restructuring Commission
o Was a challenge to the closing of one Pembroke hospital and the restructuring of another
o The hospital to be restructured was a Catholic one
o One of the issues was that the hospital restructuring commission did not give the hospital board the
   disclosure required to determine what case it needed to meet (did not receive all the submissions)
o Decision (leave to CA dismissed)
   o No procedural unfairness
   o Nothing improper
   o Commission was under a duty to consult, but was only required to make policy decisions (not to
       act as an adversarial body)
   o The hospital knew what the general issues were, which was enough to allow them to prepare
   o On the spectrum between political decision making and judicial decision making, this commission
       was found to be close to the political end of the spectrum
            The commission is entitled to listen to whomever they want
            They have a wide area of non-reviewable decision making

Homex Realty and Development Co. Ltd. V. Wyoming (Village)
- Muni and Homex quarreled about the obligation to install services in a subdivision owned by Homex
- W/o Notice to Homex, muni made a by-law under the Planning Act RSO 1970 – designating the plan
   as one “deemed not to be a registered plan of subdivision”
- Effect was lots in subdiv could not be conveyed unless a new plan was registered or consents
   obtained
- Either way – muni would be able to impose conditions
- Homex applied to quash by-law and succeeded – Appeal by muni succeeded
Dickson (dissent)
- Principle before a public body can abrogate the property rights of citizens  must give hearing
   (Cooper)
- Argument – 1) Muni performing legislative function (therefore, no duty) and 2) if there was a duty of
   fairness, the muni has met it
- Presence of compelling public interest does not ALONE abrogate right to procedural fairness
- At stake – Homex‟s property rights
- Public interest best served by affording the private interest full disclosure and fair opportunity to be
   heard
- Argument – sophisticated owner can defeat purpose of section if given prior notice
   (“checkerboarding”) – this can be addressed via request to legislature to not have notice
   requirement – explicit in statute
- Distinction of admin v. quasi judicial – not true – must look at nature of function and facts of the case
- Muni acting out of public interest (to protect homebuyers from buying unserviced land)
- However, by-law only affected one individual  Homex should be entitled to some procedural
   protection
- Notice and opportunity to be heard
Estey (majority)
- Balance of interests – public v. private
- Statute does not provide notice requirements
- Actions taken by muni – had effect of settling dispute between Homex and Muni – quasi-judicial in
   nature (not legislative)  attracts principle of notice and consequent doctrine of audi alteram
   partem
- Pattern of statute satisfied notice requirement but hearing requirement not met
o Note that in this case, the by-law did not apply to everybody. The municipality had passed a by-law
   which targeted Homex only. The municipality and the company had a poor relationship.
o However, the majority held that Homex had been evasive and was not entitled to a remedy.
   o Like the courts of equity, one has to come to court with clean hands when seeking a discretionary
        remedy.
                                                                                                          13



3) Policy Making

Bezair v. Windor      -   facing financial crisis – board   -   Referred to Vanderkloet case – relation of
Roman Catholic            decided to close 9 schools            students – board acting in good faith has
Separate School       -   general awareness in                  complete discretion over reallocation of students
Board (1992), 9 OR        community that such an                in district – not affecting legal rights of any person
(3d) 737 (Div. Ct.)       action would be taken but         -   Guideline – result in application of duty
                          affected parents and students     -   Guideline Policy = is statutory direction that
                          had no opportunity for input          Board will follow the public consultation
                      -   Acting under statutory                expectations
                          authority, the Minister had       -   Guideline Policy is not subordinate legislation
                          issued a procedural policy for    -   Futility argument does not fly
                          board closure of schools          -   PF Question  Mixed Fact and law
                      -   Board had produced its own        -   Since neither Minister‟s nor board‟s own
                          policy                                procedural guideline followed there was a denial
                      -   Neither policy was followed           of PF
                                                            -   Public consultation is condition precedent to
                                                                a valid decision.
                                                            -   Denial of PF not fixed by form of consultation
                                                                after the decision

Canadian              -   Ministerial decision changing     Reed J (Trial Division) - Reversed
Association of            the quota distribution            - Not ready to classify it as legislative decision
Regulated                 system for the importation of     - Minister in allocating quota power – exercising a
Importers v.              chicks and eggs                       statutory power which has been delegated to him
Canada (AG) [1994]    -   Change significantly affects      - Should include notice and opportunity to
2 FC 247 (CA)             historic importers who claim          comment
                          they were not consulted           - Nature of applicant‟s rights – court does not
                                                                accept that there a common law right to “import”
                                                                – does not have to find a “right” exists –
                                                                necessary to demonstrate an interest
                                                            - Would not have been impractical to give notice
                                                                and an effective opportunity to make
                                                                recommendations
                                                            - Classifying as “legislative” or “policy” not helpful –
                                                                need to assess the effects
                                                            - Effect was to visit considerable economic loss to
                                                                the applicants
                                                            Linden (CA)
                                                            - Characterized effect differently than trial judge –
                                                                one of many decisions the Minister makes
                                                            - Rules of natural justice (meaning procedural
                                                                fairness) are not applicable to legislative or policy
                                                                decisions
                                                            Held principles of NJ are not applicable to quota
                                                            policy although they may be to individual
                                                            decisions respecting grants of quotas.
                                                            - No indication in statute that public consultation is
                                                                required.
                                                            - What applicant is seeking is a public consultation
                                                                process – not contemplated by statute
                                                                                                           14



Idziak v. Canada        -   Minister of justice had obligation    -    Extreme legislative end of administrative
(Minister of                of procedural fairness in deciding         decision making
Justice), [1992] 3          whether to surrender a person to      -    Minister engaged in making a policy decision
SCR 631 (Ont.)              a foreign power after a                    rather in the nature of a clemency  un-
                            deportation order had been made            reviewable political consideration wrt to other
                                                                       powers instead of consideration of individual
                                                                  -    Minister is entitled to consult the views of
                                                                       their staff
                                                                  -    No requirement to compel her to share those
                                                                       views

Review
o Legislation does not attract procedural fairness requirements
o The closer one gets to decisions affecting individuals, the more likely it is that procedural fairness will
   be required
o Delegated legislation does not necessarily attract PF, but some by-laws do attract PF (ex. Homex)
   o Generally, by-laws are subordinate legislation and would not attract PF
o If a decision a body is making is setting norms, it is more likely to be found to be legislative. If a
   decision affects only one individual, it is more likely to be found to be a judicial decision and is more
   likely to attract duties of fairness.
o The enunciation of general policy statements or guidelines are generally not going to attract PF
o Ministerial decisions are not necessarily free from PF requirements. It depends entirely on the
   context of the decision. If the Minister is making a policy type decision, PF is generally not required.
o Rationale for having PF:
   o A decision based on facts which affects an individual is more likely to be a good decision if the
        individual is given a chance to give evidence.
o Factors to determine if a decision is legislative:
   o Will not likely involve the application of criteria to a specific individual
   o There will not likely be individual rights in existence
   o Very little fact consideration will take place
o What types of decisions attract PF – Justice Ledain – Cardinal Case
   o Decisions which affect rights, privileges, or interests
   o Rights – liberty of the individual, property rights, etc.
              Always covered by PF, but privileges and interests were added later
                                                                                                           15



Decisions Affecting Rights, Privileges, or Interests

    RE WEBB AND ONTARIO
                                         1978       ON CA
    HOUSING CORPORATION
               The OHC owned apartments in Toronto that were managed for it by MPM and which
                   were leased at less than market rates to people with low incomes
               Webb and her children were tenants
               Three years later, the OHC recommended termination of the lease because of
   Facts
                   problems caused by Webb‟s children
               Webb made an application for review of the OHC decision to apply for termination and
                   the decision to be made under the Landlord and Tenant Act was stayed
               Webb‟s application was dismissed and she appealed
              There was an obligation for the OHC to treat the appellant fairly, but the OHC met that
 Decision
              burden and Ms. Webb‟s appeal must fail.
              There is no judicial or quasi-judicial quality to the actions of the OHC.
               Courts must be careful not to “judicialize” every administrative act of every
                   incorporated body.
              The appellant also submitted that even if the OHC was acting administratively, it was
              required to treat the appellant fairly.
               In the courts opinion, the OHC “in exercising its power of termination and thereby
 Reasons           depriving the appellant of the benefit of the lease, was required, under the
                   circumstances, to treat the appellant fairly by telling her of the complaints or case
                   against her and giving her an opportunity, if she wished, to make an answer to those
                   complaints.”
               In this case, the appellant was treated fairly:
                     She was given notice on three occasions
                     There was no indication that Ms. Webb had a defence
Class Notes:
 The difference between this case and most “rights” cases is that a public benefit was at stake and
   that the OHC (a public corporation) was making the decision. Therefore, there was a public aspect to
   this case which took it outside of the normal “landlord and tenant” case.
 Interest involved here – Webb is trying to stop the OHC from even making the application for
   termination without allowing her to be heard. Essentially, the interest involved was the ability to live in
   a reduced rent complex.
            o The decision makers were not allowed to interfere with the existing right of Webb without
               PF
            o This differs from the case where an applicant is not in the building yet
                      In such a case, there is no right being removed
                      It would be difficult to allow PF for all applicants
                      There has been no right established as of yet
                      Once someone is in the building, they may rely on the assumption that they will
                        be allowed to stay
                                                                                                                16



Courts have tended to look at decisions which affect one‟s professional status as decisions that are more
likely to attract PF:
   HUTFIELD V. BOARD OF FORT
    SASKATCHEWAN GENERAL                     1986       AB CA
     HOSPITAL DISTRICT NO 98
                   Hutfield applied for an order to quash a decision (certiorari) of the respondent hospital
                      board refusing an application for appointment to the medical staff of the hospital
    Facts          The college of physicians gave the applicant a favourable recommendation, but the
                      hospital board denied him privileges.
                   Hutfield‟s second application was denied without reasons.
                  Application of Hutfield allowed and decision quashed. Board ordered to reconsider the
   Decision
                  application.
                  The hospital board contended that the court had no right to interfere with their decision.
                   The court found that the respondent was under a duty to act fairly in considering
                      applications for hospital privileges.
                   The respondent board, if modifying, extinguishing or affecting a right or interest of a
                      person when considering or deciding on that person's rights or interests in a final
                      decision, must adhere to procedural standards which will vary according to the extent
                      of the interest or right.
   Reasons
                   While the respondent was under no duty to grant hospital privileges to an applicant,
                      the interests of the applicant were sufficiently affected to justify the remedy of certiorari
                      if procedural standards of fairness had not been complied with. The absence of
                      reasons for the respondent's decision when taken together with the absence of notice
                      of allegations of fact, of policy concerns or other circumstances under consideration,
                      and lack of opportunity to meet the criteria was a demonstration of the respondent's
                      lack of procedural fairness.
Class Notes:
 Affirmed on appeal
 Note that Hutfield did not have any rights here  he was applying for privileges for the first time.
 However, in this case the decision would have a serious economic impact on Hutfield. The decision
     could also affect Hutfield‟s professional reputation.
 Court referred to McInnes case, where a duty of fairness was required, but the decision maker
     needed only to determine the application “honestly, and without bias or caprice”. This limited PF was
     likely due to the fact that the application was for a boxing manager license (as opposed to a
     profession) and also that the applicant had been denied before (therefore, there was likely some merit
     to the decision).
 Lower court decision:
               o Precise nature of rights of PF depend on the right or interest at stake
               o Find that Hutfield may not be qualified, but had no opportunity to impact factual outcome
 CA decision:
               o Relied on narrower grounds than lower court
               o There was a legitimate expectation of a hearing because of the right involved
                                                                                                              17



Legitimate Expectations

o   Doctrine is still evolving in Canada
o   Is a specific type of interest that attracts PF
o   Would a reasonable person expect that a procedure be followed based on the conduct of a decision
    maker?
o   It is not entirely clear how much the individual has to know, but it is more likely that the court will find
    that PF is required if a party has relied on conduct or comments.
o   The rationale for extending a duty of fairness to those with legitimate expectations is to preserve the
    integrity of government decision making.
    o Is like the doctrine of estoppel is contract law.
    o Ensures that the government is honourable in its dealings with individual citizens.
    o Expectation should be reasonable
o   Is a promise or a precedent or a course of conduct which an individual expects will continue
o   Can arise in situations where one would not normally expect PF requirements (i.e. in decisions where
    PF would not normally required)

Old St. Boniface – SCC
o Residents association expected that there would be no further development in their neighbourhood
   until they were consulted
o Expectation couldn‟t prevail
o There were numerous procedural requirements in place in the relevant statute
o Sopinka – Classic statement of doctrine of legitimate expectation
   o “The principle developed in these cases is simply an extension of the rules of natural justice and
        procedural fairness. It affords a party affected by the decision of a public official an opportunity to
        make representations in circumstances in which there otherwise would be no such opportunity.
        The court supplies the omission where, based on the conduct of the public official, a party has
        been led to believe that his or her rights would not be affected without consultation.”

    REFERENCE RE CANADA
                                         1991      SCC
       ASSISTANCE PLAN
               The Canada Assistance Plan, a federal statute, was an agreement where the federal
                  government shared the costs of provincial social assistance programs.
               The plan provided that the agreement would stay in place subject to termination by
                  consent, or unilaterally by either party with one year‟s notice.
   Facts
               The federal government introduced a bill that limited the increase in funding to a
                  number of provinces without giving any prior notice.
               BC argued that the feds were precluded from introducing the bill by virtue of the
                  legitimate expectation that amendments would only be made by consent.
 Decision     Decision for the federal government. Appeal allowed.
              There is no support in Canadian or English cases for the position that the doctrine of
              legitimate expectations can create substantive rights.
               Where it is applicable, it can create a right to make representations or be consulted. It
 Reasons
                  does not fetter the decision following the representations or consultations.
               Furthermore, the rules governing procedural fairness do not apply to a body exercising
                  purely legislative functions. Here, the federal government is simply legislating.
Class Notes:
 Essentially, the government would be paralyzed if the doctrine of legitimate expectations were
   allowed to be applied to legislative decisions. PF would require the government to hear from way too
   many individuals.
                                                                                                       18



There are very few Canadian cases where the doctrine of legitimate expectations has been successful.
In CUPE, the doctrine was used at the ON CA but not by the SCC.

CUPE v. Ontario – 2003 SCC
o Compulsory arbitration required in health care labour disputes
o 3 arbitrators are chosen (one by each side, and one together)
                                       rd
o If the parties cannot agree on the 3 arbitrator, the Minister could appoint one
o In 1995, a new government came into force and re-organized hospitals and education
o Ultimately, the Minister of labour announced that they were going to return to a one arbitrator system
o The government appointed 4 former judges that the union did not agree with (not on the list of
   mutually acceptable arbitrators as the union said that they had expected)
o ON CA found that former judges were biased
   o Also said that there was a legitimate expectation on the part of the union that the arbitrator
       selected would be mutually acceptable
o SCC upheld the decision
   o Majority – Binney
            The Minister is only supposed to name an arbitrator where there is no agreement as to
                who the arbitrator should be
            Says that the judges are not biased
            However, the process by which they were selected was not fair
            There was a legitimate expectation that the Minister would only appoint arbitrators that
                were mutually acceptable
            To be a legitimate expectation, the expectation must be clear and unambiguous
            On the facts, the court could not find a firm selection practice. There was only a general
                and ambiguous practice. Therefore, CUPE could not rely on the doctrine of legitimate
                expectations.
            However, the judges did not have the necessary labour background. Therefore, they
                upheld the ON CA decision. The act required a certain level of labour expertise for
                arbitrators and the Minister had not even considered labour expertise in making the
                appointments.

  FUREY V. ROMAN CATHOLIC
      SCHOOL BOARD FOR                   1991     NF SC
   CONCEPTION BAY CENTRE
                The board decided to close an elementary school
                Residents sought certiorari to quash the decision of the board, alleging that the
                  decision was taken without an opportunity for public input and that this constituted a
   Facts
                  breach of the duty of procedural fairness.
                The Department of Education had established guidelines for school closings which
                  included public consultation, which had not been followed in this case.
 Decision      Decision of board quashed an matter remitted back for reconsideration.
               The judge had no hesitation in finding that the board‟s decision was an administrative one
               and not a legislative one.
                The judge further found that the board had previously used public consultations and
 Reasons
                  had therefore created an impression that the board was operating under a system of
                  procedural fairness.
                Therefore, a legitimate expectation was created.
Class Notes:
 Decision reversed on appeal because the applicants could not show that they had believed that the
   past practice would be followed in this instance. In other words, only those who were aware of
   previous consultative practices could actually rely on those practices as generating a legitimate
   expectation.
                                                                                                            19



  MOUNT SINAI HOSPITAL V.
                                     2001       SCC
QUEBEC (MINISTER OF HEALTH)
            Minister appealed a judgment of the QB CA ordering the Minister to issue an amended
              permit to the hospital.
            The hospital had been established as a long-term treatment facility.
            The hospital wanted to move from one location to Montreal and the Minister promised
              the hospital that its permit for 107 long term beds would be amended once it moved to
              Montreal. The hospital actually had 50 extra short term beds for 10 years prior to the
  Facts
              move.
            After the move, the Minister refused to alter the permit.
            The hospital brought an action in mandamus for an order compelling the Minister to
              issue the permit.
            The Superior Court ordered the Minister to hear submissions before deciding whether
              to issue the permit. Then, the CA ordered the Minister to issue the permit.
 Decision  Appeal of Minister dismissed.
               The conduct of the Minister in this case indicated that he had exercised his discretion in
               favour of issuing the permit by promising the hospital that it would receive the permit,
 Reasons
               encouraging the move to Montreal, and continuing to fund the short-term beds.
                This looks like an estoppel argument
Class Notes:
 Essentially, part of the SCC found that the license had already been granted when the Minister
   promised to grant it after the hospital‟s move. Therefore, the government had no authority to take
   away the license.
 In a concurring judgment, the court found that the Minister had not acted in a procedurally fair
   manner. Normally, such a decision would mean that the court would order a new hearing. However,
   the court simply granted the license here.
 It appeared as if there was no real reason to deny the hospital a license. There was an impression
   that the Minister was acting arbitrarily.

Non-Dispositive Decisions
o Traditionally, only final decisions were protected by PF. The theory was likely that procedural
   fairness was not absolutely necessary where a party had a second chance to change the decision.
o Eventually, protections did evolve for non-dispositive decisions

          RE ABEL AND                                                   Extends PF to some
                                         1979    ON DC
   ADVISORY REVIEW BOARD                                            non-dispositive decisions.
              Advisory Review Board (ARB) was to review annually all patients who were confined
                 in psychiatric institutions and make recommendations for release to the lieutenant
                 governor.
   Facts      The lawyer for some patients requested disclosure of the files kept by the institutions
                 about the patients in order to prepare for such a review. The request was refused.
              The claim for access to the files was clearly prohibited by the Act. The difficult issue
                 was whether the ARB should disclose the contents at the review.
 Decision    Application of Abel granted.
             Does not see distinction between judicial or quasi-judicial functions and purely
             administrative functions as useful.
 Reasons
              Therefore, believes that rules of natural justice apply to the case at hand.
 (Grange)
              Therefore, the ARB should disclose at least some of the contents of the patients‟
                 records.
 Affirmed by the ON CA
 One important factor here was that the impact on Abel would be substantial.
 Another important factor was the close proximity between the decision maker and the body making
   the recommendation for the decision.
                                                                                                            20



CONSTITUTIONAL DIMENSIONS

There are aspects of constitutional protection that are procedural. The section of most interest is s. 7.
One must also keep the Bill of Rights in mind.
o Is a statute which applies only to federal legislative actions (unlike constitution which applies to
   federal and provincial laws)
o In the absence of express previsions to the contrary, it presides over all federal law (or delegated law)
o Differences between constitution and Bill of Rights
   o Applicability
   o Constitution requires government action under s. 32
            McKinney – no protection for those who were terminated after the age of 65 – university
               applied a mandatory retirement policy
                    Court found that Charter did not apply because universities were not
                        government actors (were independent enough from government)
                    Notwithstanding that fact, the bodies making decisions at universities were still
                        subject to judicial review
                    Still covered by Human Rights Code
            Eldridge – qualified this rule
                    Dealt with hospital boards
                    Issue was whether translation had to be provided to people seeking medical
                        services under s. 15
                    Hospital argued that the duty was not theirs as they were not government
                    The court held that the hospital boards were subject to the Charter because
                        they were providing a government service (the delivery of healthcare)

Bill of Rights
o 1.(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the
     right not to be deprived thereof except by due process of law
o 2.(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
o These sections provide for property rights, while the Charter does not
     o It is not clear how far the protection goes
     o The protection is only procedural and there has been little successful jurisprudence

Authorson v. Canada (AG)
o Class action challenging federal legislation
o Veterans had their pension fund managed by the department of veteran affairs
o The DVA did not pay interest on accounts for a number of years
o The government limited their past financial liability in an act which said they weren‟t liable for
   retroactive interest
o Veterans argued that the Bill of Rights prevented the act
   o Needed due process to be deprived of property (right to a fair hearing)
o ON CA found a fiduciary duty
   o Must pay interest
   o Section of act barring interest was inoperative
o SCC allowed the appeal
   o S. 2(e) applied only to tribunals that decided individual rights or obligations
   o Does not apply to legislation

Duke
o Procedural protections require the tribunal which adjudicates one‟s rights must act fairly, in good faith,
   without bias, and in a judicial temper, and must give to him the opportunity to adequately state his
   case
                                                                                                        21



Charter s. 7

National Anti-Poverty Organization v. Canada (AG) – (1990 FCA)
o Revisited the issue in Inuit Tapirisat (Bell Canada rates).
o Question in this case was whether section 2(e) of the Canadian Bill of Rights applied to the decision
    of the board to allow an increase in rates without consultation of affected parties.
o Trial judge found that Cabinet was determining the “rights and obligations” of subscribers to the Bell
    Canada system and was therefore bound to act in accordance with the “principles of fundamental
    justice” in so doing.
o The AG appealed to the FCA.
o FCA decision:
    o Appeal of AG of Canada allowed.

        SINGH V. CANADA
  (MINISTER OF EMPLOYMENT                   1985        SCC
        AND IMMIGRATION)
                The appellants were all refugee claimants landed in Canada
                Under the procedure in place at the time, the Minister had determined that they were
                   not convention refugees
                The appellants then applied to the Immigration Appeal Board
   Facts
                Their applications were not referred to an oral hearing because the board determined
                   that there was no reasonable grounds for believing that the appellants could establish
                   their claims at a hearing
                The appellants then applied to the FCA and their application failed
               Appeal of Singhs allowed. Cases remanded to the Immigration Appeal Board for a
 Decision
               hearing on the merits in accordance with the principles of fundamental justice.
               Dickson, Lamer, Wilson:
               The appellants are entitled to assert s. 7 of the Charter which guarantees “everyone… the
               right to life, liberty, and security of the person and the right not to be deprived thereof
               except in accordance with the principles of fundamental justice.”
                The term “everyone” in s. 7 includes every person physically present in Canada
                A convention refugee has the right under s. 55 of the Immigration Act not to “be
                   removed from Canada to a country where his life or freedom would be threatened”.
 Reasons
               The procedure for determining refugee status is inconsistent with the requirements of
               fundamental justice articulated in s. 7
                At a minimum, the procedural scheme set up by the Act should provide the refugee
                   claimant with an adequate opportunity to state his case and to know the case he has
                   to meet
               The government failed to demonstrate that their procedures constituted a reasonable limit
               on the appellants‟ rights within the meaning of s. 1 of the Charter
Class Notes:
 Is significant because it demonstrated that s. 7 protections extended beyond criminal law
 Outlined the components of fundamental justice
            o Biggest problem here was that the appellant did not have the opportunity to make his
                case and did not know what case he had to meet
            o Does not always require an oral hearing (written would be OK sometimes), but here an
                oral hearing was required
 Noted that administrative convenience and reduced costs are not factors to be considered under s. 1
   of the Charter
 Beetz, Estey, McIntyre (concurred, but on different reasons)
            o Made their decision based on the Bill of Rights
            o In determining the content of those rights, one must look at the procedural content of
                fundamental justice (must look at severity of consequences)
            o In this particular case, nothing short of one full oral hearing on the merits would satisfy
                procedural fairness
                                                                                                        22




      CHIARELLI V. CANADA
                                        1992       SCC
     (MINISTER OF JUSTICE)
              C, a permanent resident of Canada, was deported because of a conviction for an
                 offence with a term of imprisonment of five or more years (automatic deportation)
              There was a right of appeal to the Immigration Appeal Board on the basis of any error
                 of law or fact, or on the basis that “having regard to all the circumstances of the case”
                 the appellant should be allowed to remain in Canada
              C commenced an appeal, but before it was heard the solicitor general and the minister
   Facts
                 of employment reported to Security Intelligence Review Committee that C was a
                 person who would be involved in organized crime if he stayed in Canada.
              The hearing was postponed while the court awaited the outcome of the SIRC process
              The SIRC found that C was likely to be involved in organized crime
              Therefore, the immigration board was unable to hear any argument that “having
                 regard to all the circumstances” C should be able to remain in Canada
 Decision    C‟s s. 7 rights were not violated.
             C submitted that his s. 7 rights were violated as a result of the procedure followed by the
             SIRC.
              Assuming that the proceedings before the SIRC were even subject to the principles of
                 fundamental justice, those principles were observed
 Reasons      Although C was not permitted to be present while other witnesses gave evidence, he
                 was given a summary of their evidence and a summary of CSIS‟s intelligence (without
                 sources)
              C was also permitted to respond by calling his own witnesses or by cross examining
                 witnesses (but he chose not to exercise these options)
Class Notes:
 Note that CSIS wanted to protect the source of their information (security issue at play in this case)

What life, liberty, and security of the person rights are protected by the Charter?
o Custody matters
o Criminal matters
o Mental health matters
o Prison discipline
o Parole
o The courts began to increase what was protected

    WILSON V. BC MEDICAL
                                       1988     BC CA
   SERVICES COMMISSION
            New doctors were required to apply for a practitioner‟s number which allowed them to
               bill the province
  Facts     The time, place, and purpose of practice could be restricted
            Several doctors sought a declaration that the Medical Service Amendment Act was
               inconsistent with s. 7 of the Charter (trial judge dismissed the application)
 Decision  Appeal of doctors allowed. Provisions declared to be of no force and effect.
           The legislation violated the right to liberty found in s. 7 of the Charter.
            Although it does not extend to protect property or pure economic rights, liberty in s. 7
               may embrace individual freedom of movement (including the right to choose one‟s
               occupation and where to pursue it)
            Denial of the right to bill the plan was denial of the doctors‟ right to practice their
 Reasons
               profession (a matter concerning their dignity and sense of self-worth).
            The geographic restrictions imposed by the government constituted a violation of the
               right to liberty protected by s. 7
            The legislation was not in accordance with PF  it was based upon the application of
               vague and uncertain criteria and left substantial scope for arbitrary conduct.
                                                                                                            23



Other s. 7 Issues:
 Is disbarring a lawyer an interference with his right to life, liberty, and security of the person?
            o Have not been extended to the right to work, or carry on a profession
            o Has not been ruled out absolutely, but there is little chance of success
 Does it apply to the taking away of social assistance?
            o Reducing government assistance is not covered by s. 7 – Masse
            o Those representing welfare recipients argue that there is a positive obligation to provide
                social assistance at a particular level
            o Gosselin
                     QB case where the government had imposed a workfare scheme for those under
                        the age of 30
                     If one did not participate in the program, social assistance was reduced
                     Challenged under s. 15 and s. 7
                     Government argument was that there was no positive obligation to provide
                        assistance and that the court should not get into setting the level of assistance
                              i.e. such issues are not justiceable
                     Majority did not decide the case based on s. 7, but rather on s. 15 (ruled in favour
                        of the government)

Before Blencoe, there was a hesitation to extend s. 7 rights to tribunals that did not deal with custodial or
criminal matters.

BLENCOE V. BC HUMAN RIGHTS
                                      2000        SCC
          COMMISSION
             B (a minister in the BC government) was accused by one of his assistants of sexual
               harassment
             A month later, the premier removed B from cabinet and dismissed him from the HDP
               caucus
             Then two other women came forward with sexual harassment complaints
             Hearings were scheduled before the BC Human Rights Tribunal over 30 months after
  Facts        the initial complaints were filed.
             Following the allegations, media attention was intense
             B considered himself unemployable in BC due to the outstanding complaints against
               him and moved to have the complaints stayed. He claimed that the commission had
               lost jurisdiction due to unreasonable delay in processing the complaints.
             B‟s petition was dismissed by the SC of BC.
             The BC CA allowed B‟s appeal.
 Decision   Appeal of BC Human Rights Commission allowed.


                Majority (McLachlin, L’HD, Gonthier, Major, Bastarache):
                The Charter applies to the actions of the BCHRC. Otherwise, one could have tribunals set
                up by the government in order to avoid the Charter.
                 Furthermore, s. 7 can extend beyond criminal law, at least where there is state action
                    which directly engages the justice system and its administration.
                 “Liberty” is engaged where state compulsions or prohibitions affect important and
 Reasons
                    fundamental life choices.
                     Ex. the choice of where to live is inherently personal and is infringed by a rule
                         which required municipal employees to live within city boundaries (Gotlieb case)
                 However, the state has not prevented B from making any “fundamental personal
                    choices”. Therefore, the interests sought to be protected in this case do not fall within
                    the “liberty” interest protected by s. 7.
                                                                                                         24



                  Furthermore, the s. 7 rights of “liberty and security of the person” do not include a
                   generalized right to dignity.
                    One does have a right to be free from serious state imposed psychological stress
                    Here, the major harm to the respondent was caused not by the government but by
                        the publicity surrounding the allegations themselves. The prolongation of stigma
                        from ongoing publicity was likely, regardless of the delay in the human rights
                        proceedings.
               With respect to the delay in the hearing:
                There is no constitutional right outside of the criminal context to be “tried” within a
                   reasonable amount of time.
                The CA erred in transplanting s. 11(b) principles to human rights proceedings
                In order to delay to be an abuse of process at for an administrative law standpoint,
                   there must be proof of significant prejudice (in an evidentiary sense) which results
                   from an unacceptable delay.
               Dissent In Part (Iacobucci, Binnie, Arbour, Lebel):
               Stated that this matter should be resolved on the basis of administrative law principles. It
               was therefore unnecessary to express a definite opinion on the application of s. 7 of the
               Charter.
                This case should therefore have been decided based on whether or not there was an
                   unreasonable delay in the proceedings.
                Here, inefficiency in the BCHRC‟s handling of the matter has led to abuse of process.
Class Notes:
 Leaves the door open for s. 7 protection where one is suffering from serious state imposed
   psychological stress
 In cases where there has not been significant prejudice, delay could still sometimes result in an
   abuse of process
          o Few lengthy delays would ever meet the threshold set out
          o Must bring the administration of justice into disrepute
 Court imposes costs against the government as a reprimand for the delay (even though the
   government won the case)

Where does this leave us with respect to the applicability of the Charter to administrative
tribunals?
o S. 7 will only be applied in extreme circumstances
o What is the benefit of going to the Charter if one can get an administrative law remedy?
    o There is no clear reason to do so
o The courts have made it clear that the mere fact that one has to be involved in a regulatory process
    does not engage s. 7
o Where there are coercive measures taken by a tribunal, s. 7 may apply
    o For example, compelling testimony or forcing the production of documents
                                                                                                            25



DEFERENCE TO PROCEDURAL RULINGS
Will review this subject in more detail later in the course.

There is quite a range to determining what standard of review a court is going to use:
o Ranges from correctness (little deference) TO
o Patent unreasonableness (substantial deference)

The reason a court might give deference is that the tribunal that was making the decision is often expert
in the subject matter of the decision.

The most deference is given to decisions that are policy based discretionary decisions.

THE ROLE OF JUDICIAL REVIEW

The source of the right to judicial review is either statute, constitutional, or common law.

Baker demonstrates two of the main principles of judicial review:
o Right to be heard
o The general principle that a party has the right to an impartial decision maker

Case looks at:
o Nature of decision
   o Source of authority – statutory
   o Who makes the decision (Minister of Immigration, but has delegated authority to immigration
        officers)
   o What is the effect of the decision on the individual
o Whether there are procedural rights
   o Does the duty of fairness apply
o Is it a right, privilege, or interest
o If the duty of fairness applies, what is the content
   o There is a spectrum of possibilities

      BAKER V. CANADA               1999       SCC
            Baker (appellant) was a woman with Canadian-born dependent children
            She was ordered deported
                 Her materials said that she would suffer emotionally if she was separated from her
                   children
                 Her children had been in and out of foster care
            Baker applied for an exemption based on humanitarian and compassionate
               considerations under s. 114(2) of the Immigration Act
            Generally, an application for permanent residence must be made from outside Canada
  Facts     A senior immigration officer responded to Baker by writing that there were insufficient
               humanitarian and compassionate reasons to warrant processing the application in
               Canada.
            The letter contained no further reasons.
            Counsel for Baker requested and was provided with the notes made by the
               investigating immigration officer when making his decision
            The issue of this appeal is whether the best interests of the children need to be given
               primacy in assessing Baker‟s claim under s. 114(2) of the Immigration Act. The
               Immigration Act does not expressly incorporate the International Convention on the
               Rights of the Child.
 Decision  Baker‟s appeal allowed. Reversed the lower court and the court of appeal.
                                                                                                   26



          Trial Decision:
           Found that the language in the officer‟s notes was not offensive and did not raise a
              reasonable apprehension of bias
           Furthermore, the decision maker was not the one that made the notes
          Majority (L’HD, Gonthier, McLachlin, Bastarache, Binnie):
           The duty of PF is flexible and variable and depends on the context of the statute and
              the rights affected
               The purpose of PF is to ensure that administrative decisions are made in a fair
                   and open procedure appropriate to the social context
           Several factors are relevant in determining the content of the duty of fairness:
               The nature of the decision being made and process followed in making it
               The nature of the statutory scheme and the terms of the statute pursuant to
                   which the body operates
               The importance of the decision to the individual affected
               The legitimate expectations of the person challenging the decision
               The choices of procedure made by the agency itself
                       o Often agencies are given authority to pass their own set of regulations
                            that they deem to be appropriate
                       o This is not determinative because the tribunal could get it wrong, but the
                            factor must still be considered
               Should also look at whether this is the final decision or whether review is available
           A duty of PF applies to humanitarian and compassionate decisions (the rights affected
              here are significant)
               In this case, there was no legitimate expectation
               The duty of fairness owed in such circumstances is more than minimal  the
                   claimant must have a meaningful opportunity to present relevant evidence and
Reasons            have it fairly considered
               In this case, the opportunity to produce written documentation was sufficient
           However, in some circumstances the duty of PF will require a written explanation for a
              decision
               Reasons were required here given the importance of the decision to those
                   affected
               This requirement was fulfilled by the provision of the officer‟s notes (which goes
                   against what CA had held)
               Part of the reasoning was the burden that would be imposed on the process if
                   they had to produce reasons for every decision
               Court says that various types of written reasons are sufficient (must be flexible)
           PF also requires that decisions be made free from a reasonable apprehension of
              bias, by an impartial decision maker
               Here, statements in the officer‟s notes gave the impression that he may have
                   been drawing conclusions based on the fact that the applicant was a single
                   mother with a psychiatric illness
               The notes therefore give rise to a reasonable apprehension of bias
               Stated that even junior employees have the obligation to be free from bias
           Considerable deference should be accorded to immigration officers exercising the
              powers conferred by the legislation.
                       o Is the type of important decision they make frequently
           Given the absence of a privative clause, the explicit contemplation of judicial review,
              and the individual nature of the decision, the appropriate standard is
              reasonableness (not patent unreasonableness).
                       o The more discretion left to the decision maker, the less the court should
                            interfere (more deference afforded)
                       o Although deference is required here, the ultimate in deference is
                            unjustified
                                                                                                            27



                   A reasonable exercise of the power conferred by the section requires close attention
                    to the interests and needs of children, since children‟s rights are central humanitarian
                    and compassionate values
                      This decision did not consider children‟s rights as an important factor and was
                         therefore an unreasonable exercise of the power conferred by the legislation
                Minority (Cory, Iacobucci)
                 Agreed with the reasons and disposition of the majority except for effect of
                    international law on the exercise of ministerial discretion under s. 114(2) of the Act
   Note that Baker was able to make submissions
   What would we need to in order to say that compassionate grounds were met? There is a handbook
    that was available to counsel that outlines this.
   As the individual affected, one would assume that they would get reasons for the government‟s
    decisions. In this case, she simply got a letter stating that she did not meet the criteria.
   Why would we want to allow Baker to stay?
            o She has four children that were born in Canada
            o She might not be able to get the medical treatment she needed in Jamaica
            o She has a psychological illness which may be worsened by the stress of the move
   Here, the problem was not the outcome, but the approach that was taken
            o There was an apprehension of bias
            o The exercise of the power did not properly consider the children‟s needs
   The result is that the case was referred back to another immigration officer

Privative clauses
o Finality clause of some kind
o Inserted with a view to eliminating judicial review altogether, or limiting it
o It is possible for the legislature to eliminate judicial review, but the language would have to be very
    explicit
o More often, the case is that judicial review is limited to certain grounds (jurisdiction and patent
    unreasonability usually)
o Suggests that the court should be deferential to the decision maker
                                                                                                    28



THE CHOICE OF PROCEDURE

  SURESH V. CANADA (MINISTER
                                        2002      SCC
OF CITIZENSHIP & IMMIGRATION)
              Appellant was a convention refugee from Sri Lanka who applied for landed immigrant
                 status
              The Canadian government detained him and commenced deportation proceedings on
                 security grounds (claimed he was a terrorist)
              The FC TD upheld the deportation certificate and, following a deportation hearing, an
                 adjudicator held that he should be deported.
              The Minister concluded that he should be deported
   Facts
              Although the appellant had presented written submissions to the Minister, he was not
                 provided with a copy of the immigration officer‟s memo to the Minister nor was he
                 provided with an opportunity to respond to it (orally or in writing)
              The appellant applied for a judicial review alleging that:
                   The Minister‟s decision was unreasonable
                   The procedures under the Act were unfair, and
                   The Act infringed sections 7, 2(b) and 2(d) of the Charter
             Appeal of Suresh allowed. The appellant is entitled to a new deportation hearing. The
  Decision
             legislation is however constitutional.
              The Charter does not require the Minister to conduct a full oral hearing or judicial
                 process.
              However, a refugee facing deportation to torture must be informed of the case to be
                 met.
              The refugee must be provided with an opportunity to respond in writing to the case
                 presented to the Minister, and to challenge the Minister‟s information.
  Reasons     The Minister must provide written reasons for her decision dealing with all relevant
                 issues
              These procedural protections apply where the refugee has met the threshold of
                 establishing a prima facie case that there may be a risk of torture upon deportation.
              Here, the appellant met that threshold.
              Since he was denied the procedural safeguards and the denial cannot be justified by
                 s. 1 of the Charter, the case was remanded to the Minister for reconsideration.

                                                                                                         29



STATUTORY POWERS PROCEDURE ACT

Was passed in the 1970‟s as a response to several administrative law issues raised in the McRuer report.
o Legislation is directed at tribunals  essentially directs them to engage in mini-trials
o Therefore, the act applies to quasi-judicial decisions (not administrative ones)
o The SPPA does not apply to all tribunals. It is not always clear whether the act applies.
   o Even if it does not apply, it does not mean that there is a not a required lower level of procedural
      fairness

Re Downing and Graydon (1978)
o Dealt with minimum employment standards
o People could bring complaints to employment standards officer
o There was then a right of appeal
o The Employment Standards Act had specifically excluded the SPPA
o This was because the officers were supposed to be able to make quick decisions while at an
   employer
o The court still found a lower level of PF was required, despite the SPPA being excluded
   o The employer was entitled to be told what the nature of the complain was

Some other pieces of legislation explicitly exclude the SPPA.
o However, legislation is not always explicit
o In such cases, one must refer to the act itself
o S. 3 of the SPPA sets out its applicability

    3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the
    exercise of a statutory power of decision conferred by or under an Act of the
    Legislature, where the tribunal is required by or under such Act or otherwise by law to
    hold or to afford to the parties to the proceeding an opportunity for a hearing before making a
    decision.

There are two major pillars of protection
o The nature of the hearing and the right to be heard (the content)
   o Audi alteram partem rule (right to be heard)
   o The right to a hearing does not always mean that there is a right to an oral hearing
   o In Nicholson, the court said that natural justice may require a hearing, but that requirement may
       be met by a hearing conducted by writing only
o The nature of the decision maker
   o This is generally the right to a decision maker free from bias

What are the benefits of an oral hearing
o Decision makers may be more sympathetic
o The applicant may feel that they have had their day in court
o The applicant has an opportunity to rebut the decision maker‟s assumptions (and the other side‟s)
o Increased transparency
o Benefits to the decision maker:
   o Opportunity to ask for clarification
   o Opportunity to asses credibility
   o Allows for cross examination

What are the disadvantages of an oral hearing
o Can be more time consuming
o Can be more costly (requires staff, transcripts, legal fees, clients missing work, etc.)
                                                                                                            30



In what situation are oral hearings the most beneficial?
o Most would argue that decisions where facts are contentious are best suited to oral hearings, while
    decisions based solely on questions of law are best handled by written submission

The more serious the decision, the more likely one is going to be afforded protection.
o Decisions affecting property, professional status, etc. are more likely to be afforded procedural
   protection (hearings are usually required)

Hundal v.             -   Suspension of driver‟s licence under demerit system
Superintendent        -   Court accepted that the suspension of a driver‟s license engaged s. 7
of MV                 -   But did not have to hold an in-person hearing under a demerit system
(1985), 20 DLR
  th
                      -   Opportunity to respond in writing was adequate
(4 ) 592 (BCCA)       -   Credibility was not a major issue
                      -   Also, demerit points are as a result of previous convictions. Therefore, Hundal had
                          already been afforded the ability to defend the charges.
                      -   Furthermore, there was a right of appeal to another level

Right to Oral Hearings under the SPPA

        Written hearings
        5.1 (1) A tribunal whose rules made under section 25.1 deal with written hearings may
        hold a written hearing in a proceeding. 1997, c. 23, s. 13 (6).

        Exception
        (2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is
        good reason for not doing so.
        (2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with
        procedural matters.
                                                                                                        31



THE ACTUAL HEARING

This judgment is an example of a situation where a sexual harassment complaint was dealt with by using
an inquiry rather than a regular hearing. This is usually done to spare the trauma of confronting the
harasser.
       MASTERS V. ONTARIO                   1994     ON DC
                 Masters was the ON agent general in NY, and was appointed by the premier
                 Masters was accused of sexual harassment and the premier requested a team of
                    external investigators to ascertain the facts
                 They produced a report that Masters had sexually harassed seven women
   Facts
                 Following a response from Masters, the premier reassigned Masters
                 Masters decided to resign instead and accepted a financial settlement
                 Masters then applied for judicial review of the investigators‟ report, alleging that the
                    rules of natural justice had been breached
 Decision       Masters‟ application dismissed.
                Masters argued that he was entitled to have the decision made before an impartial
                decision maker and to be accorded the right to cross-examine all witnesses adverse in
                interest.
                 Masters submitted that where credibility is an issue, the general duty of fairness
                    requires that an impartial decision maker be designated to determine credibility by way
                    of a full trial-type hearing.
                 Court noted that diminished weight is to be attributed to procedural fairness claims in
 Reasons
                    relation to offices held at pleasure (Knight)
                 Court then said that Masters was allowed to interview those witnesses who would
                    agree to be interviewed and that nothing was done to interfere with this right
                 There was no need to provide detailed disclosure in this case  Disclosure of the
                    substance of the accusations against Masters was sufficient.
                 Masters was aware of all the material allegations against him and was provided with
                    an adequate opportunity to be heard.
o This was an example of an office at pleasure (Masters office was at the confidence of the premier,
    and he was appointed by the premier).
o One technique that Δs often use in cases such as this is to put the complainant on trial. The court
    might be trying to balance the Δ‟s right to defend his case and the desire to protect the complainant.
o This case was treated differently because it was an investigation.

This case provides an example of how claims to an oral hearing are affected by the way the courts
characterize the issue before the decision maker and the nature of the interest that is at stake.
     KHAN V. UNIVERSITY OF
                                         1997      ON CA
              OTTAWA
                 Khan, a law student, failed her evidence exam
                 She claimed that she had been marked on 3 booklets and the 4 had gone missing
                                                                                      th

                 She appealed her grade to the exam committed and then the Senate committee
                 Each dismissed her application without allowing her to appear before them on the
                    basis that she had failed to demonstrate any error in injustice in the grading of her
   Facts
                    examination.
                 She applied for judicial review, claiming that she had been denied PF
                 The DC disagreed with her position that credibility was the pivotal concern
                 The DC concluded that she had failed to demonstrate that the 4 booklet had been
                                                                                      th

                    handed in
  Decision      Appeal allowed.
                                                                                                               32



                   The exam committee denied the appellant PF by failing to give her an oral hearing, by not
                   considering the procedures followed during and after the evidence exam, and by not
    Reasons        giving her an opportunity to correct or contradict the factors it relied on in its decision.
                    The appeal before the Senate committee did not cure the procedural unfairness
                        because the exam committee did not completely reconsider the appellant‟s appeal.
     Dissent said that all that there was here was a bare assertion and an oral hearing will not change this.
     However, one could argue that the applicant‟s credibility could have been assessed at an oral
      hearing.
     The university argued that the student was not being disciplined and that credibility, therefore, was
      not an issue. This argument is fairly weak.
     The majority says that the decision could have an impact on the applicant‟s career.
                o Therefore, the decision would be significant to the applicant.
     However, the dissent says that the interest affected here was not significant
                o Said that this was not a s. 7 case (life, liberty and security of the person)
                o The student will simply have to repeat a semester if the decision is to uphold the failure
                o This is a significantly different characterization of the issue than the majority‟s
                    characterization
     Majority also found that there should have been an oral hearing because:
                o The student could have corrected or contradicted any comments made by the university
                    or the committee
     Finally, the majority said that it is not always the case that one can get an oral hearing for an exam
      review. The right to an oral hearing depends on the particular circumstances.

Open v. Closed Hearings
o Under SPPA

          9. (1) An oral hearing shall be open to the public except where the tribunal is of the
          opinion that,
                   (a) matters involving public security may be disclosed; or
                   (b) intimate financial or personal matters or other matters may be disclosed at
                   the hearing of such a nature, having regard to the circumstances, that the
                   desirability of avoiding disclosure thereof in the interests of any person affected
                   or in the public interest outweighs the desirability of adhering to the principle that
                   hearings be open to the public,
          in which case the tribunal may hold the hearing in the absence of the public.

o     There are occasions where the court will actually allow lawyers to be present, but the clients are not
      allowed to be present. This occurs in cases where there is sensitive commercial information being
      discussed. The lawyer undertakes to not discuss this information with his client.
o     If there is a written hearing, portions of documents can be sealed
      o SPPA

          (1.1) In a written hearing, members of the public are entitled to reasonable access to the
          documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies.

Right to Counsel

          10. A party to a proceeding may be represented by counsel or an agent.

          11. (1) A witness at an oral or electronic hearing is entitled to be advised by counsel or an
          agent as to his or her rights but such counsel or agent may take no other part in the
          hearing without leave of the tribunal. R.S.O. 1990, c. S.22, s. 11 (1); 1994, c. 27,
          s. 56 (21).
          (2) Where an oral hearing is closed to the public, the counsel or agent for a witness is not
          entitled to be present except when that witness is giving evidence.
                                                                                                         33



o     Benefits of counsel
      o Understanding of complex legal issues
      o Helps focus issues appropriately
      o Understand procedural issues
o     Arguments against the right to counsel
      o Lawyers are often costly
      o Could make the process more adversarial
      o Some parties cannot afford counsel
      o Lawyers often make the process more lengthy

This case raised the issue of whether the Charter will ever create an entitlement to state-provided
counsel.
 NB (MINISTER OF HEALTH AND
                                           1999       SCC
 COMMUNITY SERVICES) V. G(J)
                 The question was whether the mother should be provided with counsel for the purpose
                     of resisting an application by the Child Welfare authorities for renewal of an order
   Facts             placing her three children in state custody
                 A policy under the Legal Aid Plan prohibited the granting of legal aid certificates in
                     custody-order renewal proceedings.
  Decision      Appeal of mother allowed.
                In the circumstances of this case, the appellant‟s right to a fair hearing required that she
                be represented by counsel.
                 The seriousness of the interests at stake, the complexity of the proceedings, and the
                     capacity of the appellant required that the appellant be represented by counsel
                 Few state actions could have a more profound effect on the lives of both parent and
                     child than custody hearings
  Reasons
                 This action was even more significant because the government was seeking to extend
                     a prolonged separation
                 Child custody proceedings are effectively adversarial proceedings which occur in a
                     court of law (however, they are less adversarial than criminal proceedings)
                 However, a parent will not always need to be represented in child custody matters.
                     The complexity of the proceedings will have a bearing, as will the parent‟s capacities.
 Prof is not aware of any Ontario decisions that would require the government to pay for counsel in
    administrative issues (other than the GJ type case)

    HOWARD V. STONY MOUNTAIN
                                            1985     Fed CA
             INSTITUTION
                 Howard was a penitentiary inmate who had earned remission
                 If found guilty by the Inmate Disciplinary Court (IDC), he could forfeit his remission and
     Facts          be sentenced to solitary confinement
                 Howard requested, and was denied, the right to have counsel present for the hearing
                 Howard appealed to the Fed CA
    Decision    Appeal allowed.
                The nature of the proceedings was essentially administrative, rather than judicial or quasi-
                judicial.
                 However, a duty to act fairly was still present
                 S. 7 did not create an absolute right to counsel in every proceeding before the IDC
    Reasons      S. 7 did however require that an accused have an opportunity to present his case fairly
                 In this case, it was clear that the whole of Howard‟s earned remission was in jeopardy
                    so that his right to liberty was an issue
                 Both Howard and Legal Aid believed he needed counsel to properly prepare his
                    defence
                                                                                                        34




        RE MEN’S CLOTHING
                                          1979    ON DC
    MANUFACTURER’S ASSOC…
               Disputes in the men‟s clothing industry in Toronto had been resolved by arbitration for
                  decades without lawyers
               After this particular grievance was started, the association said that it wanted to use
                  lawyers for some disputes
               An arbitrator made a preliminary ruling
                    The question was whether the right of legal representation is implied by the rules
                       of natural justice
                    The common law position was that the right to counsel was not absolute, but that
     Facts
                       legal representation is generally desirable
                    In this specific context, the absence of lawyers has allowed for very informal
                       procedures and expedited hearings
                    The process seems to work well and is responsive to the special needs of the
                       industry
                    The introduction of lawyers could possibly put this process at risk
                    However, lawyers should not be excluded altogether.
               The association applied for a judicial review
    Decision  Application of Manufacturer‟s Association granted.
              The authorities to which the arbitrator referred did not deal with arbitrations under
              collective agreements and did not deal with the right of representation for a corporation or
              association at a hearing.
               In this case, none of the parties before the arbitrator was a natural person.
               The only way the association can be heard at a hearing is by representation by an
                  agent.
    Reasons
               The arbitrator therefore limited the association‟s ability to select their agent.
               The court held that the arbitrator had no authority to do so.
               As a general rule, a party entitled to be represented by an agent cannot be restricted
                  in the choice of its agent (other than those who are clearly inappropriate).
               Also, in any case where one side is entitled to legal representation, the other side
                  should be afforded the same right

                                                                                                           35



             RE PARRISH                   1993      FC TD
                 The captain of a ship that was in a collision was summoned to appear before an
                    investigator to be examined
                 The captain appeared with two counsel, but the investigator refused to allow counsel
                    at the hearing
     Facts
                 The investigator had allowed counsel to be present when members of the crew of the
                    other ship were interviewed
                 The issue was whether the captain could be forced to testify without the presence of
                    counsel
    Decision    Captain entitled to have counsel present  cannot be forced to testify without counsel.
                The scope of the fairness principle depends on the consequences and nature of the
                inquiry as well as the repercussions on the individuals involved.
                 In this case, a witness could be faced with a negative report seriously affecting his
                    rights without being given a fair opportunity to present his case with the assistance of
                    counsel
                 Concluded that the duty to act fairly implies the presence of counsel when a
                    combination or all of the following elements are present:
    Reasons
                      Individual or witness is subpoenaed
                      Is required to attend and testify under oath with a threat of penalty
                      Where absolute privacy is not assured and the attendance of others is not
                         prohibited
                      Where reports are made public
                      Where an individual can be deprived of his rights or his livelihood, or
                      Where some other irreparable harm can ensue

                                                                                                     36




DISCLOSURE

Notice
o Sometimes means the information that there is going to be a hearing
o However, sometimes is meant to include information needed to meet one‟s case
o If SPPA applies, s. 6 is a key section
       6. (1) The parties to a proceeding shall be given reasonable notice of the hearing by the
       tribunal. R.S.O. 1990, c. S.22, s. 6 (1).
       (2) A notice of a hearing shall include a reference to the statutory authority under which
       the hearing will be held.
       (3) A notice of an oral hearing shall include,
                (a) a statement of the time, place and purpose of the hearing; and
                (b) a statement that if the party notified does not attend at the hearing, the
                tribunal may proceed in the party's absence and the party will not be entitled to
                any further notice in the proceeding.
o Notice is required for any decision that affects the rights of an individual
o Notice must be reasonable, meaning it cannot be given the day before a hearing
o How does one find out what case they have to meet?
   o The amendments to the SPPA did contemplate the possiblity of tribunals setting up their own
       discovery process
o Notice must be adequate so that the person can prepare and can be present
   o The more adjudicative the procedure, the more detailed the information must be
   o The more investigatvie, the less detail reqruied

The courts have used language that means that notice and disclosure must make the client able to
prepare effectively.
o The level of disclosure required is not as high as a criminal or civil trial

SPPA, s. 8
       8. Where the good character, propriety of conduct or competence of a party is an issue in
       a proceeding, the party is entitled to be furnished prior to the hearing with reasonable
       information of any allegations with respect thereto.

Stitchcombe
o Dealt with the requirement of the Crown to provide the Crown brief
o Is a summary of the Crown‟s evidence
o Is provided to the accused
o Provided on the understanding that it not be disclosed to others
o The Crown may not call every witness listed or use all evidence
o The accused is entitled to see the Crown brief

When tribunals undertake matters that are close to criminal (ex. Human Rights Code infringements),
Stitchcombe does not apply directly.
o However, the tribunal will likely require a high level of disclosure
o Disclosure is important to allow the client to prepare their case

Exceptions to Disclosure
o Solicitor client privilege
o Crown or executive privilege
o Public interest confidentiality reasons
        Need to protect commercial information
        Need to protect informants
                                                                                                      37



Kane v. Board of       - Professor suspended for improper use of computer
Governors of UBC       - Board held meeting – Kane & president attended
[1980 1 SCR 1105       - Board then had dinner to discuss case – with president
(BC)                   - Evidence president gave board the necessary facts
                       Dickson
                       - Should have afforded Kane chance to correct or meet any adverse statements
                           made at dinner
                       - Board made fundamental error – in deliberating – may have heard further information
                           which affected its disposition of matter

Access to Agency Information

  RE NAPOLI AND WORKER’S
                                         1981     BC CA
   COMPENSATION BOARD
              Worker‟s Compensation Board (WCB) appealed two decisions which held that a
  Facts           worker appealing to a board of review was entitled to an opportunity to peruse copies
                  of the material in his file.
 Decision    Appeal of WCB dismissed.
             The rules of natural justice applied to proceedings before the board of review and before
             the commissioners.
              The rules of natural justice clearly include a duty of disclosure.
              Summaries of the files were not adequate compliance with this duty because they
                  afforded no opportunity to challenge the statements and opinion contained therein.
              A “high standard of justice” was required because of the large impact these decisions
 Reasons
                  had on the future lives of the injured workers.
              The argument that the reports would not be frank if they were to be disclosed was
                  rejected because of the potential that the reports would actually be prepared with
                  greater care and diligence.
                   Court actually said that if people knew that their reports would be looked at, they
                       might actually do a better job
o Following this case, the WCB actually enacted rules to deal with this problem.
                                                                                                       38



Identity of Sources of Information

Both Gallant and Gough involve cases of jailhouse informants.
      GALLANT V. CANADA                 1989     Fed CA
                Was an appeal by the government from an order quashing their decision to transfer
                  Gallant from a maximum to a high maximum security penitentiary.
                The reason given in the written notification of recommendation for transfer was that
                  Gallant had been implicated in an extortion scheme involving threats of violence and
                  smuggling drugs into the institution.
   Facts
                Specific details of the scheme were not provided in order to protect the identity
                  of the informants (to avoid exposing them to death or physical harm)
                The Fed TD quashed the order on the basis that it violated the principles of PF in that
                  the notice was too vague to enable the respondent to answer the allegations against
                  him
  Decision     Appeal of government allowed.
               Majority (Pratte)
                The requirements of PF vary with the circumstances
                The notice was inadequate to allow the respondent to refute the case against him
                However, the circumstances were sufficient to relieve the government from the
                  obligation to give more detailed notice
                Parliament could not have intended that PF apply even when it would endanger the
                  lives of other inmates
                The right to an opportunity to be heard is also guaranteed by the principles of
                  fundamental justice, which are less flexible than the rules of natural justice and of
                  fairness. The decision to transfer Gallant was not made in accordance with the
                  principles of fundamental justice, but was authorized by a law that met the
                  requirements of s. 1 of the Charter.
               Concurring Judgment (Marceau)
  Reasons       Concurred in result, but not for the same reasons
                The audi alteram partem principle cannot be completely disregarded except in a case
                  of exceptional emergency and for a short period of time
                Here, having regard to the nature of the problem, the rule did not require that more
                  information be given to the inmate before asking for his representations.
               Dissent (Desjardins)
                The transfer of an inmate from one institution to another is a disciplinary measure,
                  which attracts the protection of procedural fairness under s. 7 of the Charter and under
                  the common law.
                When such a measure is taken, the burden is on the prison authorities to demonstrate
                  that the circumstances are such that they cannot inform the respondent of the facts on
                  which the charge is based.
                Here, the government did not demonstrate the reliability of the information and could
                  not ensure that the informers were not engaged in a private vendetta.

                                                                                                        39



       GOUGH V. CANADA
                                          1990     FC TD
  (NATIONAL PAROLE BOARD)
                Was an application to quash the NPB‟s decision to suspend Gough‟s parole
                Gough had been on parole 5 ½ years when his parole was revoked as a result of
                   complaints of sexual assault involving the use of illegal drugs and coercion
                The details of the complaints were withheld from Gough
   Facts
                Gough‟s parole record had been exemplary up to that point
                Gough argued that a failure to provide details was an breach of his s. 7 right not to be
                   deprived of liberty except in accordance with the principles of fundamental justice
                The NPB argued that the gist of the allegations had been communicated to Gough
 Decision      Gough‟s application allowed.
               Gough‟s s. 7 rights were breached by the refusal to provide him with the confidential
               information upon which the Board relied.
                The principles of fundamental justice entitle an individual to know the case against him
                   in a decision making process which leads to a diminution of liberty
                Although Gough‟s liberty was conditional, and subject to revocation without all the
                   procedural guarantees of a court of law, his position was as close to unconditional
 Reasons           liberty as one can get within the correctional system
                Because the incidents took place outside the prison, the problem of identifying
                   informants did not exist
                Here, Gough had not even been provided with the gist of the allegations
                The NPB failed to demonstrate that the particular circumstances justified the non-
                   disclosure or that a parole system which authorizes the NPC to refuse disclosure was
                   justifiable under s. 1 of the Charter
 Was different from Gallant because Gaugh‟s liberty was at stake. He was practically free and his
   liberty was potentially going to be restricted.

Staff Studies
o Disclosure of materials created by an agency – reports prepared by its staff, or guidelines and
    statements of policy
o The question is what a client is entitled to in terms of disclosure

Toshiba Corp v. Anti-      -   Issue is the disclosure of 2 reports prepared by staff of the tribunal
Dumping Tribunal           -   Preliminary staff report – contents part of public record – dangerous not to
(1984), 8 Admin. LR 173        disclose, but ultimately result not affected
(CA)                               o The bottom line was that the client had an opportunity to deal with the
p440                                    facts. Therefore, they were able to meet their case and there was no
                                        breach of fundamental justice.
                           -   Post hearing report – not part of public record – similar to what clerks write for
                               judges – not discloseable
                                   o Professor says that there is commentary on the evidence in such reports
                                             Believes that such commentary should be disclosed because it is
                                                 essentially a submission to the tribunal that the client does not
                                                 have a chance to rebut / challenge
Trans-Quebec &             -   Disclosure of staff papers prepared for board
Maritimes Pipeline Inc.    -   Requested disclosure as part of reasons – no indication they even formed part of
v. National Energy             reasons
Board (1984),
Re League for HR of        -   Issue of report being prepared by commission on what legal means are there to
B’Nai B’rith and               prosecute war criminals
Commission of Inquiry      -   League sought disclosure of materials
on War Criminals           -   No opportunity for make submissions otherwise
(1986)                     -   Report will be taken as expert evidence and carry great weight
                           -   Fairness requires opportunity to comment on working group‟s report
                                                                                                         40



EVIDENCE AND CROSS-EXAMINATION

SPPA

        What is admissible in evidence at a hearing
        15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing,
        whether or not given or proven under oath or affirmation or admissible as evidence in a
        court,
                 (a) any oral testimony; and
                 (b) any document or other thing,
        relevant to the subject-matter of the proceeding and may act on such evidence, but the
        tribunal may exclude anything unduly repetitious.

        What is inadmissible in evidence at a hearing
        (2) Nothing is admissible in evidence at a hearing,
                (a) that would be inadmissible in a court by reason of any privilege under the law
                of evidence; or
                (b) that is inadmissible by the statute under which the proceeding arises or any
                other statute.

Hearsay is admissable before a tribunal.
o The argument against allowing hearsay is that there is no opportunity to cross-examine
o However, hearsay is not always given much weight depending on the circumstances

Refusing to admit evidence can be a breach of fundamental justice.
o If the evidence was key to the case, a court may find that the tribunal should have allowed it.
o There are very few cases where tribunals refuse to admit evidence.

Timing
o Goes to fairness
o Consider the situation where evidence is put forward that the other side has not been informed of
o Usually, the remedy is to provide an adjournment so that the other side may prepare a response

CROSS EXAMINATION
o Is one of the most significant protections of the integrity of the fact finding exercise
o Tests the voracity of evidence and allows one to challenge the credibility of the witness
o It is thought by some that cross examination of the evidence of experts or evidence on policy issues
  is not entirely useful because the person will not abandon their evidence. However, the professor
  feels that one can qualify the evidence that they have given and challenge their assumptions.
o Downside of cross examination  Can sometimes strengthen the other sides case by clearing up
  testimony

When will a tribunal limit cross examination?
o SPPA
      10.1 A party to a proceeding may, at an oral or electronic hearing,
      (a) call and examine witnesses and present evidence and submissions; and
      (b) conduct cross-examinations of witnesses at the hearing reasonably required for a
      full and fair disclosure of all matters relevant to the issues in the proceeding
o In some cases, there is no cross examination at all (at the policy end of the spectrum)
                                                                                                          41



    INNISFIL (TOWNSHIP) V.
                                           1981     SCC
      VESPRA (TOWNSHIP)
                Issue was whether the opposing municipalities were entitled to cross-examine the
                   official of the ministry who had presented a letter
  Facts
                The letter was with respect to the City of Barrie‟s application to annex part of the
                   neighbouring townships (confirmed that the letter was government policy)
 Decision      Appeal of townships allowed. Cross examination allowed.
               The SPPA does not assist the respondent in their opposition to the cross-examination
                The SPPA is applicable  s. 10.1(b) is directly applicable to the issue at hand
 Reasons        Furthermore, cross-examination is a vital element of the legal system
                The court will require clear statutory direction in order to limit a party‟s right to cross
                   examination
 This essentially establishes an absolute right to cross examination of a witness
 The court said that it did not really matter whether the cross examination was likely going to be useful.
   The right holder is the one that is supposed to make the judgment of whether cross examination will
   be helpful to their case.

DUTY TO GIVE REASONS

It was not always the case that tribunals were required to give reasons for their rulings.
o Baker established the requirement for reasons
o Advantages of giving reasons
         To assure party that the hearing has given them a meaningful opportunity to influence the
             decision maker
         To limit risk or error by tribunal – reasons should show that the tribunal addressed itself to the
             parties‟ arguments
         If decision is reviewed – court will test adequacy of the reasons by asking whether in light of
             the issues in dispute and the arguments and evidence advanced by the parties at the hearing
             before the tribunal, the tribunals reasons are sufficient to enable the court to effectively
             scrutinize the decision
         If decision involved an exercise of discretion – reasons should demonstrate that tribunal had
             a power to choose and the factors it considered in exercising it.
         If tribunal‟s application of a statutory standard depends on the existence of certain facts, the
             reasons should include the findings of facts made by the tribunal and indicate the evidence
             on which the tribunal based its findings
         If finds depend on the assessment of witnesses credibility – unrealistic to require more
             specificity – but may be liable for more if tribunal rejected viva voce evidence in favour of
             hearsay
         Increases transparency
         Ensures that one can check if the law was interpreted correctly and the right tests were
             applied
o Disadvantages of giving reasons
         Delay decision making
         Unjustifiable burden on tribunal
         Waste in allowing challenges on purely formalistic grounds
                                                                                                           42



 VIA RAIL CANADA V. NATIONAL
                                           2001      Fed CA
   TRANSPORTATION AGENCY
                 Was an appeal by VIA from a decision of the NTA which held that a portion of VIA‟s
                    special and joint passenger tariff constituted an undue obstacle to the mobility of
                    persons with disabilities
                 The complaint arose after a team of wheelchair basketball athletes went on a trip and
                    each of their attendants travelled for free (according to the tariff).
   Facts
                 The complaint was with respect to the requirement that the attendant be capable of
                    assisting the disabled person in getting on and off trains
                 The NTA found that the clause posed an undue obstacle to the mobility of persons
                    with disabilities.
                 VIA appealed on the ground that the NTA failed to provide adequate reasons.
 Decision       Appeal of VIA allowed. Matter sent back to the NTA for a new inquiry.
                The NTA was required to provide reasons for its decisions.
                 It failed to indicate with sufficient clarity the basis for its conclusion that the clause
                    constituted an obstacle.
 Reasons
                 It did not indicate the factors deemed to be relevant by the NTA, nor its reasoning
                    process
                 There was no mention of a balancing of interests
 Reasons must be adequate. One cannot simply recite the facts and then come to a conclusion.
 Decision maker must set out the facts, set out the criteria used to make the decision, and how those
    criteria were applied.
 The court here also found inconsistencies in the tribunals decision
 The professor says that the court may have simply done an appellate review in the guise of requiring
    reasons
             o After this decision, the NTA was forced to conduct a new inquiry
             o The tribunal was told what criteria to use (meaning that the court corrected their
                 interpretation of the law, not just the fact that they had to give reasons)

Gray (p. 481)
o Court found the reasons of the social benefits tribunal to be inadequate in this case
o The tribunal did not set out a principled decision based on the facts
o The tribunal did not make findings of fact based on the testimony
o The court also said that the tribunal used the wrong test
                                                                                                       43



BIAS

The second component of procedural fairness requires a decision maker who is unbiased.
o At best, the tribunal would have no prior knowledge of the case, no preconceived notions, and a
   completely open mind.
o This right is contextual and depends on the nature of the decision being made.
o Courts appreciate that there is an underlying difference between tribunals and courts. Tribunals are
   to implement government policy and are specialized decision makers. They also often have more
   than one function. Therefore, the situation is more complex than court decision making. This leads
   to different standards.
o Part of the challenge is that all decision makers will have some preconceptions.

The test used is not generally actual bias, but rather “reasonable apprehension of bias”
o It is not necessary to show actual bias, but rather that a reasonable person fully apprised of the
   situation would perceive bias.
o Actual bias occurs where there is personal involvement with the issue or outcome and includes:
   o Pecuniary interest
   o Non-pecuniary interests such as one‟s interest in seeing an issue resolved in a certain way

  ENERGY PROBE V. CANADA
                                                                  Only a direct pecuniary interest
  (ATOMIC ENERGY CONTROL              1984       Fed CA
                                                                         will constitute bias.
           BOARD)
             The AECB proposed to renew Ontario Hydro‟s operating license for a nuclear station
             Energy Probe made some objections, including an objection to participation by one
                board member (Olsen)
   Facts     EP alleged that Olsen was president of a company that supplied cables to nuclear
                power plants and was an official member of several organizations that supported use
                of nuclear power
             The AECB rejected this objection and renewed the license
 Decision   Appeal of Energy Probe dismissed.
            Majority (And Trial Judge)
            The function of the AECB is an administrative one and not quasi-judicial or judicial
             Therefore, Nicholson applies to AECB licensing decisions
             Therefore, the requirements of fairness may be different from and less than those
                required by the rules of natural justice
             The duty to act fairly from Nicholson must include a requirement for an unbiased
                decision maker
             The rule for pecuniary bias is that a direct pecuniary interest will constitute bias
                 However, the court here could not find a direct pecuniary interest
                 There was no contract conditionally in effect pending the outcome of the licenses
 Reasons
                 There was no certainty that Olsen would sell additional cables to OH
                 A contingent expectation of pecuniary gain does not constitute a direct pecuniary
                     interest
            Marceau – Concurred, but for different reasons
             Did not feel that the word direct should be given such a narrow interpretation
             The only requirement should be that the benefit that could come from the decision
                would have enough of an effect to colour the case in the decision maker‟s eyes
             However, in this case, Olsen could expect no obvious gain from the renewal of the
                operating licenses
             The expectation of pecuniary gain was too remote and contingent
 Marceau‟s analysis is now considered to be the correct way of approaching the issue.
          o The only requirement should be that the benefit that could come from the decision would
             have enough of an effect to colour the case in the decision maker‟s eyes (regardless of
             whether the interest is direct or indirect, pecuniary or non-pecuniary).
                                                                                                           44



Remember that statutes can override the common law rules with respect to judicial bias as long as the
statute is constitutional.

Pearlman v. MB Law Society Disciplinary Committee
o Involved a hearing with respect to disciplining a lawyer who was a member of the MB Law Society
o Was argued that benchers of the law society (who are lawyers) could be seen to be coloured by self-
   interest because disbarring a lawyer would reduce their competition
o The SCC rejected this argument

One must recognize that administrative tribunals are often appointed or elected for their specialized
expertise. Therefore, the members of a tribunal may have knowledge of the case at hand. However, in
Committee for Justice, Crow‟s experience actually amounted to a reasonable apprehension of bias.

Committee for Justice and Liberty v. National Energy Board (1978 SCC)
o Applicant was interested in constructing a pipeline
o Before Mr. Crow was appointed to the board, he was a member of the CDC (Canadian Development
   Corporation) who dealt with routing and planning issues with respect to the pipeline
o The SCC agreed that this amounted to a reasonable apprehension of bias and disqualified Crow from
   the decision making process
        Crow had previously been involved in decision with respect to the pipeline
        Therefore, one could not be sure that his previous involvement did not enter into the board‟s
           decision
o Note that there was no allegation that Crow was going to profit from this decision

There are some situations where statutes require decision makers to be involved in investigations and
also in the decision making process. Does this amount to a bias?
      BROSSEAU V. ALBERTA
                                          1989      SCC
   (SECURITIES COMMISSION)
                 Brosseau alleged that the chair of the ASC should be disqualified from sitting in an
                    adjudicative capacity because he had instructed commission staff to review files of a
                    company for which Brosseau was the solicitor.
    Facts
                 The chair had received a report from staff about their review of these files  they
                    alleged that there were false or misleading statements contained in the company
                    prospectus filed with the ASC
  Decision      Appeal of Brosseau dismissed.
                L”HD
                 Essentially, B was objecting to the participation of the chairman at the investigatory
                    and adjudicatory levels
                 There is an exception to the general nemo judex rule where the overlap of functions
                    has been authorized by statute (and where the constitutionality of the statute is not in
                    issue).
                 In order to disqualify the chairman from hearing the matter in this case, the court said
                    they had to find some act going beyond his statutory duties
  Reasons        S. 28 of the Securities Act provides authority for the ASC to carry out a full scale
                    investigation, which includes a wide range of powers
                 Because of the power granted to an investigator under s. 28, such an investigation
                    must be ordered by the commission, not the chairman alone
                 Here, there is no evidence that the commission ordered the investigation
                 However, there is an implied power to order an informal review that leads to a full
                    scale investigation
                 Also, since there is only one securities commission in Alberta, it is logical to assume
                    that the ASC will have multiple dealings with one corporation
                                                                                                         45



Contrast the Brosseau decision with Manning:
 EA MANNING LTD. V. ONTARIO
                                             1994      ON CA
   SECURITIES COMMISSION
                   The appellants sought an order prohibiting the OSC from proceeding with 2 hearings
                       relating to improper sales practices by the appellants in their marketing of penny
                       stocks
   Facts
                   The appellants alleged both actual bias and reasonable apprehension of bias because
                       of the adoption of a policy statement that indicated that the OSC was not happy with
                       the practices of penny stock marketers in general (before seeking the 2 hearings).
 Decision         Appeal of EA Manning dismissed.
                  The trial court held that those commissioners who had been appointed after the adoption
                  of the policy statement were not disqualified, while those who participated in the
 Reasons          formulation of the policy statement were precluded from the hearings.
                   The ON CA held that there was no evidence of prejudgment by the new
                       commissioners.
 The court (trial and appeal) held that the policy was in fact a type of finding. The policy indicated a
   type of pre-judgment that amounted to a reasonable apprehension of bias.
 The court stated that the new commissioners would likely be aware of the policy statement, but that
   they would be able to act impartially because they weren‟t involved in the formulation of the policy.
 However, in the case of the chair of the commission, the ON CA held that since he was simply
   fulfilling his mandate as chairman, the comments about penny stock dealers did not bring up a
   reasonable apprehension of bias. Furthermore, the statements did not apply to this particular
   hearing.

    2747-3174 QUEBEC INC. V.
             QUEBEC                     1996       SCC
 (REGIE DES PERMIS D’ALCOOL)
               The QB RDPD appealed a judgment granting the respondent‟s motion in evocation
               After conducting a hearing into a complaint of disturbing public tranquility, the RDPD
   Facts           revoked the respondent‟s liquor permits pursuant to statute
               The respondent argued that the RDPD did not comply with the guarantees of
                   independence and impartiality set out in s. 23 of the Charter
  Decision    Appeal of QB Regie Des Permis D‟Alcool allowed in part.
              The RDPD‟s decision to cancel the permit was a quasi-judicial process.
               Therefore, s. 23 of the Charter applied to the decision
               The RDPD‟s structure and multiple functions raised a reasonable apprehension of bias
                    staff were authorized to participate in all stages from investigation to adjudication
  Reasons      Although the RDPD‟s structure did not meet the requirements of s. 23 of the Charter,
                   the shortcomings were not imposed by the legislation and it was therefore
                   unnecessary to declare specific sections of the Act unconstitutional.
               It was sufficient to grant the respondent‟s motion in evocation and to quash the
                   RDPD‟s decision.
 The test used in this case was whether “a well-informed person, viewing the matter realistically
    and practically – and having thought the matter through – would have a reasonable
    apprehension of bias in a substantial number of cases.”
           o This test added to the Committee for Justice enunciation
           o Allows for people with expertise in an area to sit on tribunals without there automatically
               being a reasonable apprehension of bias
                                                                                                        46



Another way bias occurs is through the conduct of the decision maker during the actual hearing.
o Includes comments suggesting a prejudgment, comments that are abusive or negative towards one
   party, etc.
o Bias of this type often leads to other procedural fairness issues.

INDEPENDENCE
o Judges are appointed by the federal government and have absolute tenure until retirement. They
   can only be removed because of extreme incompetence.
o Their salaries are set by an independent council.
o Judges have a certain amount of administrative control over what cases they are going to hear.
o Valente case made it clear that provincial court judges were also entitled to a certain level of
   independence (as with federal judges)
        The source of independence for provincial court judges was the constitution
o It was unclear whether tribunals had a right to independence
        The Ocean Port Hotel case held that the constitution was not the source of independence for
           tribunals
        However, procedural fairness requires an absence of bias which requires a certain amount of
           independence
                 Independence is required because the government appoints adjudicators and those
                    who are being affected by decision makers want some assurance that the decision
                    maker is not being influenced / pressured by the government

What level of independence is required?
      CANADIAN PACIFIC V.
                                           1995     SCC
      MATSQUI INDIAN BAND
                 The appellants (the Indian Bands) passed taxation and assessment bylaws with
                   respect to property located on their reserves.
                 The bylaws provided for an appeal process, which ultimately included a right to appeal
  Facts
                   to the Federal Court.
                 Members of the bands could be appointed to the appeal tribunals
                 CP sought to appeal their assessment and sought judicial review in the Federal Court
 Decision       Appeal of the Indian Bands dismissed.
                The motions judge had discretion in determining whether or not judicial review should be
                undertaken.
                 The judge properly considered the factors in applying the alternative remedy principle
                 The fact that band member could sit on the appeal tribunals did not create a
                   reasonable apprehension of bias.
                 However, the motions judge erred on the issue of institutional independence of the
 Reasons
                   appeal tribunals. There was a reasonable apprehension of bias respecting the
                   independence of the tribunal members.
                     The members were appointed by the bands, were not paid, and there was no
                        security for the tribunal members.
                     The members were being asked to decide issues which pitted the interests of the
                        band against those of non-band members
 The court did recognize that the members of the tribunal take an oath that says they will be unbiased.
   However, the court decided that the other factors raised a concern of insufficient independence.
Sopinka (dissent)
 Looked at many of the same criteria
 Came to a different result because there is no clear information about how the tribunal functions. It is
   premature to raise an apprehension of bias in such a case.
 Was of the view that the reasonable person should have knowledge of the actual operation of the
   tribunal. Without such information, the context is not complete. The right-minded person would be
   right-minded but uninformed.
                                                                                                            47



After finding that the way the RDPD operated in practice led to a reasonable apprehension of bias in an
institutional sense, the court went on to deal with the further argument of lack of independence.
     2747-3174 QUEBEC INC. V.
                QUEBEC                     1996       SCC
 (REGIE DES PERMIS D’ALCOOL)
  Decision       Appeal of QB Regie Des Permis D‟Alcool allowed in part.
                 Gonthier
                  The directors are appointed by the government for a term of 5 years or less
                  Once appointed, the directors can be dismissed only for specific reasons
                  In the court‟s view, the directors‟ conditions of employment meet the minimum
                     requirement of independence
  Reasons
                  Issue of institutional independence:
                       The RDPD is required to submit a report to the Minister every year
                       In addition, the government must approve the various rules made by the RDPD
                       The court did not consider these various factors sufficient to raise a reasonable
                          apprehension with respect to the institutional independence of the RDPD

     BELL CANADA V. CANADIAN
                                        2003       SCC
    TELEPHONE EMPLOYEES ASS.
               Bell brought a motion before the Canadian Human Rights Tribunal with respect to
                  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".
                    Second, the power of the Tribunal Chairperson to extend Tribunal members'
     Facts
                       terms in ongoing inquiries.
               The Tribunal rejected Bell‟s position and directed that the hearings should proceed
               The FC TD allowed Bell‟s application for judicial review, holding that even the
                  narrowed guideline power of the Commission unduly fettered the Tribunal, and that the
                  Chairperson's discretionary power to extend appointments did not leave Tribunal
                  members with a sufficient guarantee of tenure.
               The FCA reversed that judgment
    Decision  Appeal of Bell dismissed.
              Neither of the two powers challenged by Bell compromises the procedural fairness of the
              Tribunal. Nor does either power contravene any applicable quasi-constitutional or
              constitutional principle.
               The guideline power does not undermine the independence of the Tribunal. The
                  requirement of independence pertains to the structure of tribunals and the relationship
    Reasons       between their members and members of other branches of government. It does not
                  have to do with independence of thought. Nor does the guideline power undermine
                  the Tribunal's impartiality. The guidelines are a form of law. Being fettered by law
                  does not render a tribunal partial, because impartiality does not consist in the absence
                  of all constraints. The guideline power is limited; and the statute and administrative
                  law contain checks to ensure that it is not misused.

                                                                                                            48



INSTITUTIONAL DECISIONS

Deals with the question of where the decision maker receives their authority to make a decision. The
decision maker has delegated authority when their authority is derived from a statute. A further question
is whether the decision maker can delegate their power further to allow another person or group to make
the decision.
o The rule against further delegation is a rule of construction. It is not a rule of law. In other words, it is
    a presumption which can be displaced by statute (and is thus a matter of construing what the
    legislature intended).
o Reasons we would not want to allow delegation
    o Accountability
    o The decision maker was likely selected due to a specific set of attributes
    o Parties do not expect a decision maker to delegate their decision making authority
o However, if every decision had to be made by a specific person appointed by statute, some tribunals
    would not be able to function. As a matter of practicality, some situations necessitate delegation.

Where there is no clear statutory language, one has to construe what the government intended
o First, interpretation acts will often say that any authority granted to a minister may be delegated to his
   deputy
o Then it becomes a matter of statutory interpretation, which requires one to:
   o Look at the plain meaning of the statute
   o Give it a large and liberal interpretation (not a narrow construction)
   o Look at the nature of the decision.
             Is there any specific attribute required in the decision maker?
             Look at how much authority was delegated. Were there any controls placed on the
                person to which the task was delegated?
             Look at whether the decision was quasi-judicial or more administrative in nature. Is there
                a large amount of judgment required?
             Are there countervailing policy arguments, such as a large number of decision which
                could not possibly be handled by the person doing the delegating?
             How much discretion was required to make the decision?
   o Look at the nature of the right affected
             How significant is this right?
             Delegation is rare in cases that deal with professional licenses

Some people argue that when a minister asks for assistance (e.g. in the form of a report) and then makes
the decision based on this report, they have not delegated their authority.

   VINE V. NATIONAL DOCK
                                      1957      HOL
        LABOUR BOARD
             NDLB was responsible for allocating dock workers to companies and had the express
               power to delegate its functions to local dock labour boards
             Vine was assigned work but did not report
  Facts      Vine was fired after the company complained to the local dock labour board and the
               board delegated the decision to its disciplinary committee
             Vine brought an action for wrongful dismissal because the local board had no power to
               delegate its disciplinary powers
 Decision   Appeal of NDLB dismissed.
            Somervell
             One must consider the nature of the duty and the character of the person
             The disciplinary powers here cannot be delegated
 Reasons
            Kilmuir
             The power here was too important to delegate unless there was an express power to
               do so. Vine could be outlawed from his occupation in this case.
                                                                                                        49



   Disciplinary powers, whether judicial or not, cannot be delegated
             o Here, the effect of the decision was too severe to be delegated
             o Furthermore, the board consisted of both labour and management representation. The
                 constitution of the board supports the notion that the board was not supposed to delegate
                 decision making any further. This is because the board was designed to inspire
                 confidence in the decision making process.
   If workload is a problem, it might be acceptable to have the disciplinary committee receive and
    summarize the evidence, leaving the board to only make the actual decision. In such a situation, the
    evidence would have to be summarized fairly.

Morgan v. Acadia University (1985 NS SC)
o Was a student discipline issue
o The board delegated its statutory power to the dean of student affairs
o The student argued that the board could not delegate
o The court upheld the delegation because it would be impractical to assume that the legislature
   intended otherwise (because of the workload required)

King v. Institute of Chartered Accountants (Nova Scotia) (1993)
o Delegation not allowed in this case
o There was no sufficiently express authority for allowing the delegation
o One must assume that the court thought there were good reasons for requiring the board to make the
   decision themselves

He who hears must decide
o The basic rule is that the tribunal that hears the evidence must make the decision
   o This rule is sometimes broken where the hearing of evidence is delegated, but the decision
       maker still reviews the evidence
o The question is to what extent the decision maker may consult with their colleagues (whether or not
   the colleague was part of the hearing)
o Re Ramm (1957 ON CA)
   o Accountant was being disciplined by the public accountants council
   o There was a lapse in time between parts of the hearing
   o In the end, the council who made the decision included two members who had not been at the
       hearing
   o Therefore, those members had not heard the evidence. They had heard a re-cap of the evidence
       during a discussion after the hearing.
   o The court held that justice should manifestly be seen to be done. The two members may well
       have been in a position to discuss evidence and influence the decision even though they could
       not have assessed the evidence.
                                                                                                     50



LOCAL GOVERNMENT BOARD V.
                                       1915      HOL
          ARLIDGE
            Case involves delegation of the duty to hear
            The Hearing and Town Planning Act gave councils authority to make orders closing
              houses unfit for human habitation and to terminate such orders if the council was
              satisfied that adequate corrective measures had taken place.
  Facts     Arlidge appealed a closing order
            The board appointed an inspector who held a public inquiry and made a report
            The board confirmed the closing order
            Arlidge then repaired the home and applied to council to have the order terminated
            The application was refused and Arlidge appealed again (unsuccessfully)
 Decision  Decision for the Local Government Board
           Haldane
            When a board is directed to dispose of an appeal, that does not mean that any
 Reasons      particular official of the board is to dispose of it.
            It would not be practical to require the minister to be a part of every decision made by
              the board

Jeffs v. New Zealand [1967] NZPC. (495)
FACTS: Board had general powers to govern the production and marketing of milk, including power to
establish zones for exclusive supply arrangements.
ISSUE: Did the board improperly delegate its judicial task of hearing evidence and submissions to
the committee by basing their decision on their report instead hearing all the evidence themselves?
DECISION: It would have been OK for the board to appoint a committee to investigate and recommend, if
they had actually summarized their findings to the board. Here, they didn’t disclose the evidence- they
just made recommendations to the board who are the decision makers.
The only material the board had before deciding was the report of the committee…they had a duty to
“hear” the evidence. Although the board has the discretion to make its own procedures, they
cannot avoiding assessing the evidence themselves.
o The court described the decision as judicial, and therefore the board had a duty to hear the evidence
                                                                                                       51



This case deals with the question of consultation.
 INTERNATIONAL WOODWORKERS
  OF AMERICA V. CONSOLIDATED-                   1990      SCC
       BATHURST PACKAGING
                The OLRB normally sits in panels of 3
                In this case, a 3 member panel decided that the appellant had failed to bargain in good
                   faith
                In the course of deliberating, a meeting of the full board was held to discuss a draft of
                   the reasons. No express statutory authority exists for this practice.
   Facts        The appellant applied for a judicial review of the board‟s decision on the ground that
                   the rules of natural justice had been breached
                The application was allowed by the DC but was disallowed on appeal.
               Issue
                Does the duty of fairness preclude members of a panel who hear a case from
                   discussing it with other members of the panel after the hearing has ended, but before
                   they have rendered their decision? If so, to what extent?
 Decision      Appeal dismissed.
               Wilson (Majority)
                Full board meetings are a practical means of calling upon the accumulated experience
                   of board members when making an important policy decision
                Discussion with a person who has not heard the evidence does not necessarily vitiate
                   the resulting decision because this discussion might “influence” the decision maker.
                A discussion does not prevent a decision maker from adjudicating in accordance with
                   his own conscience and does not constitute an obstacle to this freedom.
 Reasons        A distinction must be drawn between discussions on factual matters and discussions
                   on legal or policy issues.
               Lamer and Sopinka (Dissent)
                The introduction of policy considerations in the decision-making process by members
                   of the board who were not present at the hearing violates the rationale underlying the
                   principles of natural justice.
                The full board meeting deprived the appellant of a full opportunity to present evidence
                   and submissions and accordingly constituted a denial of natural justice.
 What were the safeguards that made consulting the board less threatening
            o There were no minutes
            o There was no consensus required, it was just a discussion
            o There was no mandatory attendance
            o The issues discussed were policy only, not the specific facts of the case
            o Essentially, there was no pressure placed on the three members to reach a particular
                conclusion. A reasonable person would not likely conclude that the process was unfair.
 The court acknowledged that there were some disadvantages to the consultation process
            o If there were no protections, board members may be pressured to reach a certain
                conclusion
            o Parties should be given an opportunity to address any new issues that come up during
                such consultations
 The court only really sees a problem where a new policy issue is brought up and that policy is used to
    make the decision. In such a case, the parties should have an opportunity to address the policy.
 In general, consultation is a forum for intellectual discussion.
                                                                                                          52



TREMBLAY V. QB (COMMISSION
                                      1992      SCC
  DES AFFAIRES SOCIALES)
           A QB ministry refused to reimburse the cost of dressings and bandages to Tremblay,
               who was receiving social assistance
           Tremblay appealed this decision to the QBCDAS
           The issue was whether the bandages came within the definition of “medical
               equipment”
           The appeal was heard by two commissioners and the parties argued in writing
           The commissioners signed a draft set of reasons in favour of Tremblay and sent the
               reasons to legal counsel for verification
           The president of the commission sent a memo to the two commissioners stating his
  Facts
               contrary position
           The commission then had a meeting, where a majority of the members expressed
               their opinion against Tremblay
           Shortly thereafter, one of the commissioners changed her mind and wrote an opinion
               against Tremblay
           Pursuant to statute, the president was then made the tie-breaker and Tremblay lost
           Tremblay alleged a breach of natural justice
           The SCJ agreed, but refused to regard the first draft of the decision as the
               commission‟s true decision. The CA upheld the trial judgment.
 Decision Appeal of Commission dismissed.
          Administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial
          tribunals.
           Secrecy remains the rule, but may be lifted if the litigant can present valid reasons for
               believing that the process followed did not comply with the rules of natural justice
           The mere fact that the president can, on his own motion, refer a matter for plenary
 Reasons
               discussion may in itself be a constraint on decision makers. If decision makers do not
               wish to consult, they must be free not to do so.
           Even if the consultation process had been in keeping with the rules of natural justice,
               the fact that the president expressed his opinion and then became a decision maker is
               hardly consistent with the rules.

MULLAN Article (535)
Highly critical of Tremblay…
    1. Should be a question of form and not substance. Suggests that there must be hard evidence
        in the case to find that a compulsion is illegitimate. Can‟t simply base decision of looking at the
        structure of consultation giving rise to suspicion.
    2. More weight and deference should be given to the agency/board as a whole to foster the
        exchange of ideas in order to help them further their mandate.
    3. Consistency is a critical component of these decisions, so dialogue is important. A “heavy
        executive hand” should be tolerated. Autonomy and independence should be considered at
        an institutional level, not for each individual on a panel.
    4. If Tremblay & Ellis-Don are followed then increased secrecy will result. DM‟s will still consult,
        they will just hide it better.
She concedes that “policing” may be difficult, but requirement to give reasons could be helpful.
                                                                                                 53



  ELLIS DON LTD. V. OLRB           2001       SCC
           There was a draft decision going one way
           A meeting of the full board was called
           The final decision went the other way
           There was no evidence / record as to what happened at the meeting
 Facts     Ellis Don tried to obtain evidence through subpoenas
          The court saw a tension between deliberative secrecy and the fairness of the process.
           The principle of deliberative secrecy means that the court should not have to disclose
              what occurred in deliberations. The reasons are supposed to be a full explanation of
              the decision.
Decision  Ruling in favour of OLRB
          Majority
           Focuses on the benefits of consultation
           Disallowing consultation would reduce consistency
Reasons    However, the court recognizes that deliberative secrecy reduces the transparency of
              the process
          Dissent
           Focuses on the transparency issue. Says that parties should be able to see how the
              decision is being made (in order to properly argue their case).

BOVBEL V. CANADA (MINISTER
                                      1994      Fed CA
 OF EMPLOYMENT AND IMM.)
            This was an appeal from an order allowing an application for judicial review of a
              decision that the applicant was not a Convention refugee.
            He attacked the Refugee Division's decision by arguing that the Division referred a
              draft of its written decision to legal counsel who was not a member of the Board and
              who had not participated in the hearing.
 Facts
            The motions judge found that the mere existence of a policy according to which the
              members of the Division were expected to submit a draft of their reasons for decision
              to legal advisors before issuing them to the parties was sufficient to taint all the
              decisions rendered by the Division since it created a reasonable apprehension of lack
              of independence on the part of its members.
Decision   Appeal allowed (application for judicial review dismissed).


Reasons      There was nothing improper about the policy followed by the division.
                                                                                                         54



Staff Involvement in Decisions

There are tribunals where lawyers will comprise the members… however there will also be many boards
and tribunals where lawyers won‟t be involved as deciding members. As a result, lawyers will have to be
consulted. Likewise, the tribunal might like to have its decision reviewed by a lawyer.

To what extent are these „legal opinions‟ permissible?

On one hand, these decisions are made as part of the executive function (implementation of policy). On
the other hand, they are very much like mini-courts because they make judicial or quasi-judicial decisions
between competing interests or parties.

Payne v. Ontario (Human Rights Commission) (Ont. CA 2000)
    The appellant made a complaint to the OHRC alleging that she was the victim of discrimination at
       the hands of her employer.
    An OHRC investigator recommended that the complaint proceed to a Board of Inquiry.
    This report is disclosed to the claimant, and they are allowed to make submissions based on its
       findings.
    The recommendation was considered by the Commission at 3 meetings (where individual isn‟t
       present).
    In the end, the Commission decided not to appoint a board of inquiry.
    Question: What disclosure is required from the Commission‟s meetings where they decide to
       appoint a board of inquiry or not?
    Payne brings a challenge claiming she was denied Procedural Fairness.
    Ont. CA:
            o Procedural Fairness requires that notice of the facts, arguments and considerations must
                be disclosed, and submissions should be based upon them.
            o What the applicant wanted to look at was how the result was determined. Deliberative
                Secrecy – fundamental judicial protection that judges and decision makers should not
                have the process by which they decide cases subject to scrutiny… The Decision speaks
                for itself.  meaning that only the actual decision is subject to review, not the process by
                which judges arrive at the decision.
            o Ont. CA finds that Deliberative Secrecy should be protected… however, if there is some
                persuasive argument that gross misconduct occurred, then the deliberative actions of the
                decision-maker could be accessed.

Agency Counsel

Spring v. Law Society of Upper Canada (Ont. Div. Ct. 1988)
     Spring was disbarred for misconduct.
     One of the main grounds for the appeal is that the decision and reasons of the Discipline
        Committee were not prepared by the committee, but by the clerk of the Committee.
     Ont. Div. Ct.:
            o Court found that there was no influence by the clerk on the decision, and that no part of
               the decision-making process had been delegated.
            o However… the court slapped the wrist of the committee for not writing their own decision.
                                                                                                             55



Opinions by Legal Counsel to Boards/Tribunals

Prichard v. Ontario (Human Rights Commission) (2003 ON CA)
     Applicant filed a Human Rights complaint.
     It was investigated, and recommendation not to appoint a Board of Inquiry.
     Legal Opinion not to appoint the Board of Inquiry.
     They didn‟t disclose the legal opinion, and argued that it was subject to solicitor-client privilege.
     Pritchard argued that this violated natural justice
     Ont. CA:
            o Held that HR Commission was simply seeking advice and that this advice was subject to
               solicitor-client privilege.
            o The real question was whether the decision could be upheld with respect to the law, and
               not whether the advice the lawyer gave was right or wrong.
            o All they were really discussing was possible interpretations.
            o Ultimately, procedural fairness can be found without disclosure of these legal opinions.

    KHAN V. COLLEGE OF PHYSICIANS
                                           1992 ON CA
      AND SURGEONS OF ONTARIO
                Khan, a doctor, was found guilty of professional misconduct in molesting a 3 ½ year
                  old girl
                His license to practise medicine was revoked
     Facts
                The DC found that counsel for the committee had been involved to an unacceptable
                  degree in the preparation of the committee‟s decision.
                The DC ordered a re-hearing and the college appealed to the ON CA.
    Decision   Appeal allowed.
                    There was no evidence that counsel for the committee had given legal advice to the
                     committee contrary to s. 12(3) of the Health Disciplines Act.
    Reasons
                    His participation in the drafting of the reasons did not influence the decision for which
                     the committee was responsible.
     What advice can be gathered from a board/tribunal lawyer is contextual.

Agency Guidelines

With respect to the overall principles being considered, is it appropriate for the board or tribunal to follow
guidelines, or to what extend should the decision-maker consider the guidelines… keeping in mind that
decision-makers are required to base their independent decisions on the law.

Legal Nature of Guidelines… not enforceable as legislation or regulation. They are merely suggestions
regarding policy. They aren‟t usually detailed in a way that necessarily lets you know exactly how the
case will be decided, but they give a general criteria.

Good things about Guidelines:
 Certainty and predictability.
 Consistency.
 Clarification.

Downside of Guidelines:
    Less independence for decision-maker

Problem: If the guideline is too narrow or detailed, then if the decision-maker follows the guideline…
then there is no independent decision-making going on…. Simply implementation of government policy.
                                                                                                       56



Bell Canada v. Canadian Telephone Employees Assn (SCC 2003)
      Pay equity issues stemming from salary discrimination.
      SCC considerations (same as a lawyer with a client in front of them):
           o Nature of the decision in question.
           o Authority for making the decision
           o Authority for the guidelines
           o Court found that the guidelines were binding…
                    However ultimately the court reasoned that the guidelines were more accurately
                       depicted as „regulations‟, and not merely suggestive guidelines… legislative
                       intent is clear. Same effect as regulations.

Note: Minor argues that in most cases, the court wouldn‟t find that guidelines should be held to the same
standard of regulations. This would only occur very rarely.
                                                                                                        57



SUBSTANTIVE REVIEW

STANDARD OF REVIEW

Privative clauses seek to preclude review by the courts.
o Some clauses are strongly worded, while others are vague.

Tribunals may be reviewed for jurisdictional errors, regardless of privative clauses.
o This is because the courts are a check on tribunals‟ exercise of power.
o The question is what level of review the courts will undertake when they intervene.
    o The spectrum of review is as follows:
            Patently unreasonable (most generous standard of review)
            Reasonableness
            Correctness (least generous standard of review)

The question is what is the appropriate balance between the legislature and the courts with respect to the
exercise of tribunals‟ authority.

a) Development of the Law of Deference

 NATIONAL LABOR RELATIONS BOARD
                                               1944 US SC
       V. HEARST PUBLICATIONS
             The respondents had been ordered by the NLRB to bargain with the union selected by
               a majority of newsboys to be its representative
             The respondents argued that the newsboys were not employees within the meaning of
               the National Labor Relations Act because they were independent contractors
  Facts
             The US SC granted leave to review the decision of the Appeal court which had set
               aside the NLRB‟s decision
             The NLRB had found that the newsboys were in fact employees because of their lack
               of independence (prices decided by Hearst, location decided by Hearst, etc.)
 Decision   Decision reversed. NLRB decision restored. Newsboys were employees.


 Reasons       The principle question was whether the newsboys were employees.




      CUPE V. NB LIQUOR
                                     1979        SCC
        CORPORATION
             CUPE complained that NBLC was replacing striking employees with management
               personnel contrary to the Public Service Labour Relations Act
             The PSCR Board rejected NBLC‟s argument that the only intent of the section was to
               ensure that the jobs remained open for the employees after the strike
  Facts      The board‟s view was that the provision was intended to reduce the possibility of
               picket line violence
             The Appeal division allowed the appeal stating that the board did not have jurisdiction
               and that the provision did not prevent management from performing the functions of
               striking employees
 Decision   Appeal of CUPE allowed.
            The board acquires its jurisdiction to consider a complaint of violation of the Act under s.
            19(1)(a).
 Reasons     The privative clause protects the decisions of the board made within jurisdiction
             The interpretation of the board cannot be said to be patently unreasonable, given the
               ambiguity of the section in question
                                                                                                           58



o   The case notes that it is not simple to decide what issues are jurisdictional and what issues are
    questions of law
o   This case signals the courts desire to allow tribunals more deference
o   Why was the court willing to defer to the labour relations board in this case?
    o The tribunal was specialized and well respected.
o   The court states that the standard is patent unreasonability
    o The court concludes that the board‟s decision, within the context of the situation, cannot be said
        to be patently unreasonable (given the purpose of the legislation)

Syndicat des employes de production du Quebec et de l’Acadie v. Canada Labour Relations Board
o AKA CBC Case, 1984 SCC
o This case did not apply the standard of patent unreasonability
o How is this case different from the CUPE case?
   o The court said that the decision in this case was based on jurisdiction, where the tribunal is not
       allowed to err.
   o Therefore, the standard was that of correctness.

  UNION DES EMPLOYES DE
                                            1988      SCC
     SERVICE V. BIBEAULT
                Two companies, M and N were awarded contracts for janitorial services for schools
                C union held the certification for the employees working at the schools
                As the result of a legal strike by the employees of M and N, the contracts were lawfully
                    terminated and awarded to another corporation (SMR)
                Union F filed an application for certification of the SMR employees
                At about the same time, union C filed an application to transfer the rights of M and N to
  Facts
                    SMR
                The application of F was dismissed and the transfer took place
                The successor rights under the code arose since there was a new employer and a
                    continuity of the undertaking
                Therefore, SMR was bound by the certification under M and N
                The court allowed an appeal, and C appealed
 Decision      C‟s appeal dismissed.
                The Labour Court erred regarding the concept of undertaking, the identity of the
                    undertaking and the requirement of a relation under s. 45 of the Code.
                By deciding that there was a transfer of rights under s. 45 of the Code when awarding
                    SMR the contract, the Labour Court and commissioner performed an act outside their
                    jurisdiction and were subject to judicial review.
 Reasons        In determining whether a decision of an administrative body was subject to judicial
                    review the test of whether the question was a preliminary or collateral one served to
                    confuse the court's attention from the real issue of whether the question was
                    intended to be within its jurisdiction.
                A better approach, when the question of law was within the body's general jurisdiction,
                    was to ask if the decision was patently unreasonable.
o How does the court attempt to reconcile patent unreasonability and correctness?
   The pragmatic test proposed is:
   o 1) If the question of law at issue is within the tribunal‟s jurisdiction, it will only exceed its
       jurisdiction if it errs in a patently unreasonable manner.
   o 2) If however the question at issue concerns a legislative provision limiting the tribunal‟s powers,
       a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review
       (correctness standard).
                                                                                                           59



      CANADA (AG) V. MOSSOP            1993      SCC
               Appeal by M from a judgment setting aside a decision of the Human Rights Tribunal
                 upholding a complaint of discrimination
               M, a homosexual, was denied bereavement leave by his employer to attend the
                 funeral of his male companion‟s father
               M and his companion lived together
     Facts
               The collective agreement with the employer granted bereavement leave upon the
                 death of a member of an employee‟s immediate family
               M argued that the definition of immediate family to include common-law spouses of the
                 opposite sex, but not the same sex, was discrimination contrary to the Canadian
                 Human Rights Act
    Decision  Appeal of M dismissed.

                 The Act did not prohibit discrimination on the basis of sexual orientation.
    Reasons       The discrimination was not on the basis of “family status” within the meaning of the
                    Canadian Human Rights Act.

o     There was no privative clause in this case. Therefore, one would expect a more intrusive review (i.e.
      correctness).
o     The court held that the Human Rights Tribunal came to its conclusion based on its interpretation of its
      own act, its assessment of expert evidence, and the legislative mandate.
      o The tribunal has the jurisdiction and expertise necessary to interpret grounds of discrimination
      o Accordingly, deference should be shown unless its interpretation is patently unreasonable
o     Professor thinks that one could argue that interpretations of human rights codes involving
      discrimination are very difficult. Therefore, by having to interpret these cases, the tribunals likely
      develop expertise.
o     L”HD in dissent
      o Essentially would ask who was in the best place to conduct the statutory interpretation
               In constitutional issues, the courts are best placed and would therefore hold tribunals to a
                   standard of correctness

Problems with Tribunals

Dangers of tribunals that have developed expertise:
o It may result in complacency because the decision makers have seen the issues before
o It may result in the decision maker developing predispositions (becoming entrenched in their views)

Some tribunals may be composed of part time members who do not actually have much expertise.
o Also, some tribunals might be appointed for political reasons and may not be completely unbiased.
                                                                                                      60



  UNITED BROTHERHOOD OF
                                    1993    SCC
       CARPENTERS …
            Appeal from a judgment reversing an arbitrator‟s decision in favour of the union
            The respondent (unionized company) was affiliated with D (non-unionized company)
            Both companies carried on business on the same premises
 Facts      D won a construction contract and hired non-unionized carpenters
            The union claimed that D thereby breach the collective agreement it had with the
              respondent because D was an affiliated company
            The agreement between the union and the respondent was due to a long strike over
              the use of non-unionized workers
Decision   Appeal of union allowed.

             The arbitrator‟s decision was not patently unreasonable
Reasons       The arbitrator was entitled to consider, as extrinsic evidence, a report that established
                that the companies agreed to discontinue the practice of hiring non-union employees


 CUPE V. MONTREAL (CITY)             1997      SCC
           Appeal by Montreal
           Montreal had sought the Conseil des Service Essentiels‟ intervention to prohibit a job
             action by union members refusing to work overtime on a holiday weekend
           Under their collective agreement with Montreal, the workers had the right to refuse to
             work overtime without giving a reason
           Montreal argued that the refusal to work overtime would prejudice services to which
 Facts
             the public was entitled
           The CDSE held a public hearing which was not taped
           The CDSE ordered the union to take all necessary steps to ensure that its members
             worked during regular hours and overtime
           The QB CA quashed the order on the basis that the CDSE committed a jurisdictional
             error
Decision  Appeal of Montreal allowed.
          The QB CA erred in finding that the order made by the CDSE was outside of its jurisdiction
           The issue before the CDSE lay at the heart of its specialized jurisdiction
           It was authorized to make orders to secure services to which the public was entitled
Reasons
           The order was not patently unreasonable and was a rationally supportable
             interpretation of its remedial provisions
          
                                                                                                        61



b) Extending the Reach of Deference – Statutory Appeals

What happens when there is a statutory right to appeal?
o One would think that the legislature considered the options and decided not to provide deference for
   the tribunal‟s decisions.
o However, this is an oversimplification of the court‟s assessment of deference where there is a
   statutory right to appeal.

 PEZIM V. BC (SUPERINTENDENT
                                        1994      SCC
          OF BROKERS)
               Appeal by BC from a judgment setting aside a decision of the Commission
               The respondents were senior managers of two corporations
   Facts       BC instituted proceedings against the respondents for violating the timely disclosure
                  provisions and insider trading provisions
               The Commission concluded that the respondents failed to disclose material changes,
                  but no insider trading was found
  Decision    Appeal of BC allowed.
              The decisions of the Commission falling within its expertise generally warrant judicial
              deference.
               The issues in this case were clearly within the jurisdiction and expertise of the
  Reasons
                  Commission.
               The Commission‟s findings were supported by the evidence and should not be
                  disturbed
o There was a right of appeal in this case on questions of law, with leave of the court
o Approach taken by Iacobucci
    o Focused on the highly specialized nature of the tribunal
    o Determined that they were an expert tribunal by looking at their functions
    o Also noted that the tribunal had broad discretion (is a basis for deference)
    o Tribunal played a role in policy development (another basis for deference)
o Standard applied was somewhere between patent unreasonableness and correctness

This case further elaborates on the standard between patent unreasonableness and correctness
(reasonableness):
     CANADA (DIRECTOR OF
INVESTIGATION AND RESEARCH) 1997                     SCC
         V. SOUTHAM INC.
                 The CA allowed an appeal by Canada and dismissed an appeal by Southam from a
                    decision of the Competition Tribunal (CT)
                 Southam owned two daily newspapers which were less successful than community
                    newspapers in the area
                 Southam acquired a controlling interest in several community newspapers
                 Canada applied for an order requiring Southam to divest itself of these assets on the
    Facts
                    ground that the acquisitions were meant to lessen competition
                 The CT found that the acquisition did not substantially lessen competition in the retail
                    print market, but did have that effect on the real estate print market
                 Southam proposed that they sell the real estate supplement of the relevant newspaper
                 The CT ordered Southam to divest itself of either the real estate publication or the
                    entire newspaper that the real estate supplement was a part of
                Southam‟s appeal with respect to finding allowed.
  Decision
                Southam‟s appeal with respect to remedy dismissed.
                                                                                                              62



                In determining the appropriate standard of review, appellate courts are required to
                consider the nature of the problem (whether one of fact, law, or a mixture), the applicable
                law, and the expertise of the tribunal.
                 The issue here was mixed, the Act granted a broad right of appeal, and the CT had
                      specialized expertise on commercial matters.
                       The issue was mixed because the tribunal erred in applying the law to the facts.
                           Such a matter is one of mixed law and fact. There is a legal issue, but it is not a
                           precedent setting one (not creating a new law).
 Reasons               The right to appeal would suggest a less deferential approach.
                       Considered factors to determine the tribunal‟s expertise:
                                o Composition of the tribunal – consists mostly of lay members, which
                                     points to an intention to have a focus on specialized expertise which is not
                                     legal (economists in this case)
                 Therefore, the standard of review should be reasonableness simpliciter
                       Is more deferential than correctness, but less deferential than patently
                           unreasonable
                 Here, the CT did not act unreasonably
o The question is to figure out what analysis the court must undertake in order to determine what is
   reasonable.
   o Difference between unreasonable and patently unreasonable  If the error is very apparent on
        the face of the reasons, then it is patently unreasonable. If it takes significant searching or
        testing, it is likely that the decision is unreasonable but not patently unreasonable.
o Courts should give a fair amount of deference for decisions where the tribunal has a great deal of
   expertise
   o Deference is to be shown by applying a standard of reasonableness
o This ruling is a departure from the original analysis in these cases, which focused on determining
   legislative intent with respect to deference
   o Is essentially an assessment of the competence (expertise) of the panel
                                                                                                       63



 LAW SOCIETY OF NB V. RYAN             2003       SCC
              Ryan was admitted to the NB bar in 1984 and had a private practice
              In 1999, a complaint was filed against him by two of his clients
              The clients had retained him for advice with respect to their dismissal by their
                 employer and gave him a small cash retainer
              For 5 ½ years, the respondent did nothing to advance the claims
              Ryan lied to his clients and forged fake decisions
              Finally, Ryan admitted that the whole thing was a lie and the clients filed a complaint
  Facts          with the Law Society
              The LS Discipline Committee (LSDC) decided that the Ryan should be disbarred.
              Ryan appealed and made a motion to adduce medical evidence showing that he was
                 under a mental disability contributing to his misconduct
              The CA ordered that the case be reopened before the LSDC for the purpose of
                 hearing this medical evidence, but the LSDC came to the same conclusion
              The CA then allowed Ryan‟s appeal and substituted its own sanction of indefinite
                 suspension with conditions for reinstatement
 Decision    Appeal allowed and disbarrement restored.
             There are only three standards for judicial review of administrative decisions: correctness,
             reasonableness simpliciter and patent unreasonableness. Additional standards should not
             be developed unless there are questions of judicial review to which the three existing
             standards are obviously unsuited.
              Although there is a statutory appeal from decisions of the Discipline Committee, the
                 expertise of the Committee, the purpose of its enabling statute, and the nature of the
                 question in dispute all suggest a more deferential standard of review than correctness
 Reasons      The appropriate standard is reasonableness simpliciter
              A decision will be unreasonable only if there is no line of analysis within the given
                 reasons that could reasonably lead the tribunal from the evidence before it to the
                 conclusion at which it arrived.
              There is nothing unreasonable about the Discipline Committee's decision to ban a
                 member from practicing law when his repeated conduct involved an egregious
                 departure from the rules of professional ethics and had the effect of undermining
                 public confidence in basic legal institutions
o The four factors one must look at when considering deference:
   o Privative clause
   o Expertise
           May be derived from specialized knowledge of a topic
           May look at experience in making decisions of this type
           In this case, the court finds that the LSDC has some expertise because of their contact
              with what goes on in the real world of practice. There is also some benefit to having
              lawyers judged by their peers.
                    Here, the tribunal was also in a better position to understand the impact of their
                       sanction than the court.
   o Purpose of legislation (and provision in particular)
   o Nature of question (law, fact, or mixed fact and law)
                                                                                                          64



c) The Modern Standard Articulated

Bibeault is still the foundation for the criteria to be used, but the following cases elaborate on the issue:
   PUSHPANATHAN V. CANADA
 (MINISTER OF CITIZENSHIP AND                  1998     SCC
            IMMIGRATION)
                    Pushpanathan applied to the Immigration and Refugee Board and they decided that
                       he was excluded from claiming convention refugee status
                    His applications for judicial review at the FCTD and the FCA were denied
                    Pushpanathan claimed Convention refugee status in Canada under the United Nations
                       Convention Relating to the Status of Refugees.
    Facts
                    He was later convicted of conspiracy to traffic in a narcotic.
                    A conditional deportation order was issued.
                    The Board found that he was excluded from claiming refugee status on the basis that
                       Convention Article 1F(c) provided that Convention provisions did not apply to persons
                       who were found guilty of acts contrary to the UN's purposes and principles.
  Decision         Appeal of Pushpanathan allowed.
                   The matter should be remitted to the Immigration and Refugee Board
                    Conspiring to traffic in a narcotic was not a violation of Article 1F(c).
                    The proper standard of review applicable to the Board's decision was the correctness
                       standard. The courts below had applied an unclear standard.
                        The question's general importance and its applicability to many future cases,
                           warranted judicial review.
                        The Board had no relative expertise in the matter of law which was the object of
                           judicial review here.
                        There was no strong privative clause.
  Reasons               The purpose of Article 1F(c) was to exclude those individuals responsible for
                           serious, sustained, or systemic violations of fundamental human rights which
                           amounted to persecution in a non-war setting.
                                o The UN had taken extraordinary measures to eradicate international drug
                                     trafficking. However, absent clear indication that the international
                                     community recognized trafficking as such a serious violation of
                                     fundamental human rights as to amount to persecution, people should not
                                     be deprived of protection under the Convention for having committed
                                     these acts.
                                o The Minister had alternate recourse to deal with those posing a threat to
                                     Canadian society.
o Court noted that the broader the impact of the decision (because of a broader question), the more
    likely the court will require correctness.
o Remember that the original question is whether the court is going to have more expertise than the
    tribunal
                                                                                                      65



d) The New Battleground – Nature of the Question

 TRINITY WESTERN UNIVERSITY
                                      2001       SCC
 V. BC COLLEGE OF TEACHERS
              Appeal by the British Columbia College of Teachers from a decision of the British
                Columbia Court of Appeal permitting Trinity Western University to run its own teacher
                training program.
              Trinity was a private Christian university.
              Trinity's Community Standards, applicable to all students, faculty and staff, prohibited
                practices that were biblically condemned, including homosexual behaviour.
              Trinity established a five-year teacher training program, the fifth year being under the
                aegis of Simon Fraser University.
              Trinity applied to the College for permission to assume full responsibility for the
   Facts        program.
              The College dismissed the application on the ground that the program was
                discriminatory (contrary to the public interest).
              Trinity applied to the British Columbia Supreme Court for judicial review of the
                College's decision. The Court granted an order allowing approval of the program,
                holding that the College was without jurisdiction to consider whether the program was
                discriminatory.
              The Court of Appeal held that the College had acted within its jurisdiction, but affirmed
                the lower court's decision on the basis that the College's finding of discrimination was
                unfounded.
 Decision    Appeal of BC College of Teachers dismissed. Therefore, no deference.
              The College had jurisdiction to consider discriminatory practices.
              While Trinity was a private institution, the College was entitled to look at human rights
                legislation and the Canadian Charter of Rights and Freedoms, 1982 to determine
                whether it was in the public interest to allow public school teachers to be trained at
                Trinity.
              However, there was nothing in Trinity's Community Standards to indicate that
 Reasons
                graduates of Trinity would not treat homosexuals fairly and respectfully.
              While homosexuals might be discouraged from attending Trinity, they would not be
                prevented from becoming teachers.
              In considering the religious precepts of Trinity instead of the actual impact of those
                beliefs on the public school environment, the College acted on the basis of irrelevant
                considerations.
 Deference was not afforded because the court applied the same four factors as in previous cases.
 Dissent (L’HD): Would have afforded a high degree of deference
                                                                                                    66



CANADA (DEPUTY MINISTER OF
    NATIONAL REVENUE) V.             2001       SCC
       MATTEL CANADA
            Under the Customs Act, value must be attributed to goods that are imported to
              Canada to determine duty.
            In the present case, the goods were invoiced in three stages: the foreign
              manufacturers invoiced the intermediary; the intermediary invoiced Mattel U.S.; and
              Mattel U.S. invoiced Mattel Canada.
            The goods were sold at progressively higher prices.
            The intermediary and Mattel U.S. took title to the goods before title was transferred to
              Mattel Canada.
            The goods were shipped directly from the foreign manufacturers to Mattel
              Canada. Mattel Canada had title to the goods when the goods were transported into
              Canada.
            The Deputy Minister of National Revenue argued that, under s. 48(4), the "price paid
              or payable" was the price at which Mattel U.S. invoiced Mattel Canada, and not the
  Facts       price at which the foreign manufacturers invoiced the intermediary.
            Under s. 48(5)(a)(iv), the Deputy Minister sought to include royalties paid by Mattel
              Canada pursuant to a licence agreement between Mattel Canada and a trademark
              licensor ("Licensor X") in the value for duty of the imported goods.
            Mattel Canada also made periodic payments to Mattel U.S. in respect of agreements
              Mattel U.S. had made with various licensors ("Master Licensors"). The Deputy
              Minister also sought to include these payments in the value for duty of the imported
              goods.
            The Canadian International Trade Tribunal ("CITT") held that duty should be
              calculated on the sale between Mattel U.S. and Mattel Canada and that neither the
              royalties nor the periodic payments were dutiable because they were not paid "as a
              condition of the sale of the goods for export to Canada" in accordance with s.
              48(5)(a)(iv) of the Act.
            The Federal Court of Appeal reversed the CITT's decision in part, finding that the
              periodic payments fell within the ambit of s. 48(5)(a)(v).
 Decision  Appeal of Mattel Canada allowed in part.
           The applicable standard of review is correctness.
            CITT decisions respecting the value for duty of imported goods and other Customs Act
              matters are protected by a partial privative clause, one that is qualified by a statutory
              right of appeal to the Federal Court of Appeal on "any question of law".
            As a result, in the case at bar, CITT findings of fact are immune from appellate
              review, but its findings involving questions of law are reviewable.
            The indications that deference is owed to the CITT included its expertise in some
              economic, trade or commercial matters.
                However, as this appeal raises pure questions of law requiring the application of
                   principles of statutory interpretation and other concepts which are intrinsic to
 Reasons           commercial law, the CITT's expertise does not speak to the questions at issue.
                Such matters are traditionally the jurisdiction of the courts and there is nothing to
                   suggest that the CITT has any particular expertise in respect of these matters.
                Court also notes that the tribunal members are appointed for 5 years, meaning
                   that they are likely to develop some level of expertise
            Court imposes a standard of correctness
                This is somewhat surprising given that the factors above seem to point to a
                   reasonableness standard
                The justification is that the level of statutory interpretation required to answer the
                   question of law is such that the court should make the decision. Minor is not sure
                   that this reasoning is persuasive.
                                                                                                         67



APPLYING THE STANDARD OF REVIEW

a) Questions of Law

   CANADA (AG) V. MOSSOP                 1993       SCC
              Appeal by M from a judgment setting aside a decision of the Human Rights Tribunal
                  upholding a complaint of discrimination
              M, a homosexual, was denied bereavement leave by his employer to attend the
                  funeral of his male companion‟s father
              M and his companion lived together
  Facts
              The collective agreement with the employer granted bereavement leave upon the
                  death of a member of an employee‟s immediate family
              M argued that the definition of immediate family to include common-law spouses of the
                  opposite sex, but not the same sex, was discrimination contrary to the Canadian
                  Human Rights Act
 Decision    Appeal of M dismissed. Therefore, there was no deference in this case.
             In this case, there was no right of appeal, but there was judicial review available.
              The standard of correctness was applied to the meaning of “family status”
                   This conclusion was reached based on:
                           o No privative clause
                           o No specialization of the tribunal
                           o The question was one of statutory interpretation (sounds like Mattel)
                                    Prof says that tribunals almost always have to interpret legislation
 Reasons                                 and then apply their interpretation to the facts. She does not
                                         understand why this factor is so persuasive, since one would
                                         expect this tribunal to be interpreting legislation.
                           o LaForest goes further and states that the tribunal was simply an ad hoc
                                body periodically assembled to resolve disputes. He thought the tribunal
                                was ill equipped to deal with the question of law at hand.
             L’HD (Dissent)
              Thinks that there should be deference.
 Prof argues that the decision might be different now than it was in 1993 given how far the courts have
   come over the last decade or so on the issue of homosexuality.

Reddall and College of Nurses of Ontario – 1981 ON CA
o Legislation allowed for appeal based on law, fact, or fact and law
o Court was essentially given the right to substitute its own decision
o Was a matter of professional competence of a nurse
o The trial court says that they are not medical experts, and thus have to rely on the tribunal‟s decision
   o Court therefore applied a standard of patent unreasonableness, since the court said that they
       were not willing to challenge the tribunal‟s decision
   o The court simply said that they would only intervene where they saw something that was
       obviously wrong.
o The CA rejected this assessment
   o Said that there was more evidence than the trial court had considered
   o However, they still upheld the finding of incompetence (but reduced the penalty)
                                                                                                      68



b) Questions of Mixed Fact and Law

ZURICH INSURANCE V. ONTARIO
                                           1992     SCC
 (HUMAN RIGHTS COMMISSION)
                OHRC appealed a decision holding that the criteria of age, sex, and marital status
                    used to set insurance rates amounted to prima facie discrimination, but that the
                    discrimination was based on reasonable and bona fide grounds.
   Facts
                The appellant argued that as an unmarried male driver under the age of 25, he had to
                    pay higher premiums than a driver in any other class. He argued that his right to
                    contract on equal terms and his right to equal treatment in services were infringed.
 Decision      Appeal of OHRC dismissed.
               Majority
                Insurance premiums were based on the degree of risk posed by the insured, which
                    was determined on the basis of groups sharing characteristics material to the risk.
                Discrimination was reasonable within the meaning of section 21 of the Human Rights
                    Code, if it was based on a sound and accepted insurance practice and if there was no
 Reasons
                    practical alternative.
                The respondent's premiums were based on classifications then in use and there were
                    no reasonable alternatives to the current system.
                Section 21 did not require that the respondent's business would be undermined if it
                    could no longer rely on discriminatory group characteristics.
o The important part of this case for our purposes was the standard of review
o The majority SCC decided that the review board had applied the wrong legal test
   o However, they looked at the facts and found that there was an insufficient factual basis on which
       the insurance industry could base their rates (they didn‟t have other statistics on which to base
       their rates)
o Dissent (L’HD)
   o The decision should not be second guessed by the court in the absence of a clear error (i.e.
       would have provided deference)
   o The insurers should have to prove that there was no practical alternative

The question remains who has the onus of proof and how deferential the court will be to the factual
findings of tribunals.
o The cases show the willingness of courts to use a question of law to justify a lack of deference

Review
o In Mossop, there was little dispute of the facts
o In Zurich, there was a dispute on the facts and also on questions of law
                                                                                                          69



d) Content of Patent Unreasonableness

  NATIONAL CORN GROWERS
         ASSOCIATION V.                   1990       SCC
 CANADA (IMPORT TRIBUNAL)
                Appeals from the judgment of the Federal Court of Appeal dismissing the appellants'
                    applications to review and set aside a decision of the Canadian Import Tribunal.
                The Tribunal held that the subsidizing of importations into Canada of corn from the
  Facts             United States caused material injury to Canadian corn producers and that a
                    countervailing duty could be imposed.
                An investigation revealed that subsidies paid to American producers substantially
                    lowered Canadian corn prices.
 Decision      Appeal of Canada Import Tribunal dismissed.
                The court would only interfere with the Tribunal's ruling if it acted outside the scope of
                    its mandate by reason that its conclusion was patently unreasonable.
                The Tribunal interpreted section 42 of the Special Import Measures Act in light of
                    Canada's obligations under GATT.
 Reasons        It was not patently unreasonable to give consideration to GATT. There was evidence
                    before the Tribunal which supported the finding that the American prices affected the
                    Canadian market in that consumers would buy the lower priced American corn rather
                    than the Canadian product.
                The ruling of the Tribunal was not patently unreasonable.
o The standard of patent unreasonability was applied because the board had expertise
o Judge distinguishes the test from CUPE in that we are not to look to see if the conclusion is patently
   unreasonable, but rather at the interpretation of the statute
   o If there was an interpretation that was not patently unreasonable, the court should not review the
       matter
   o This is a deferential approach, because the judge would not even look at how the facts were
       applied to the law
o Minority took a different approach
   o Found that the interpretation wasn‟t unreasonable
   o However, continued by looking at the decision applied to the facts and determined that the
       decision wasn‟t patently unreasonable
o In this case, the two judgments came to the same result. But, what would have happened if the
   minority came to the conclusion that the interpretation of the law was not unreasonable but that the
   application of the law to the facts was patently unreasonable?
   o This would be a low level of deference  It would be saying that the board was not correct in its
       interpretation of the facts. This is hard to argue since the tribunal has expertise.
                                                                                                             70



SUMMARY OF THE STANDARD OF REVIEW
o Courts, as a general rule, will only intervene where they are in a better position to make the decision
   than the tribunal
o Courts look at a number of factors to determine whether or not they will intervene:
   o Knowledge of tribunal
   o Expertise
             o Members and the particulars of their appointment
                       Length of appointment
                       Frequency of participation
             o Support of expert staff
             o Policy making involved?
   o Experience
   o What legilstaion says
   o What the particular provision concerned
o Is in contrast to the original formalistic approach. The preliminary question doctrine was difficult to
   apply and was subject to confusion.
o Courts will still intervene in matters of jurisdiction:
   o Issues involving natural justice
   o Where there is no evidence to support a decision (even if there is some evidence, there is no
       jurisdictional error)
o There are three standards of review which may be applied in the pragmatic and functional test:
   o Correctness
   o Reasonableness
   o Patent unreasonableness
o Factors the courts consider in determining the level of review:
   o The presence of a privative clause and the type of clause
   o The expertise of the tribunal
             o The courts do not defer to tribunals on human rights and constitutional issues (even if the
                 issues are not before a human rights tribunal)
   o Purpose of the act and the provisions in question
             o The broader the interest involved in the question being considered, the higher the
                 standard of review (because it appears to be within the court‟s prevue).
o The standards:
   o Patent unreasonableness – Must be clear on its face that the decision was wrong
             o Includes breaches of natural justice and cases where there is no evidence to support the
                 decision
   o Correctness – A consideration by the court of what it would have decided
   o Reasonableness – Involves probing into the decision to understand all of its components. If it
       takes that type of probing to determine that the court would possibly have come to another
       decision, the court will likely uphold it. In other words, the court will not overturn a tribunal unless
       it is clearly wrong.
o Traditionally, it was expected that if there was an appeal provision there would be little deference (the
   standard would be correctness).
   o However, we now know that the courts may give some deference (Southam). They seem to
       apply a standard of determining how much probing must be done to discover if the decision was
       reasonable.
                                                                                                          71



THE USE AND MISUSE OF DISCRETION

a) Abuse of Discretion as a Ground of Judicial Review

Tribunals are often given delegated authority to choose a particular course of action (generally from a
range of options that are set out for them).
o Most grants of authority allow for some discretion

There has been an evolution towards a pragmatic and functional approach by the courts when they are
determining to what degree they are willing to intervene in a decision made by a tribunal which has been
granted discretion.
o Courts used to require a correct interpretation of the statute granting the discretion. Therefore, the
    issue was viewed as a jurisdictional one and correctness was the standard.
o The Baker decision changed the approach so that the court now assesses a number of criteria:
    o What is the statutory power in question?
              General context
              Specific provision
    o Who is the decision maker? What is the character of the decision maker?
    o What is the nature of the interest involved?
    o What other accountability or remedies are in place which could apply to the decision?
o Roncarelli v. Duplessis
    o Is the foundation case
    o Made it clear that a grant of power which appears limitless, will still be subject to review because
        there is no such thing as absolute discretion
    o The discretion must be made for a proper purpose
    o Decision makers can be found to be making ultra vires decisions
    o Assumes that there is always an intended area in which the decision maker is intended to operate
o Courts want to be sure that the decision is consisting with the purpose of the statute from which the
    authority was granted.
                                                                                                           72



      SURESH V. CANADA                    2002       SCC
               Appeal by Suresh from the dismissal of his application for judicial review of a decision
                  of the Minister to deport him.
               Suresh, a Convention refugee from Sri Lanka, was a member of a terrorist
                  organization whose members were subject to torture in Sri Lanka.
               After a deportation hearing, the Minister notified Suresh that she was considering
                  issuing an opinion declaring him to be a danger to the security of Canada under
                  section 53(1)(b) of the Immigration Act.
               She issued that opinion based on an immigration officer's memorandum and
  Facts           concluded Suresh should be deported.
               Suresh presented written submissions and documentary evidence to the Minister but
                  was not given a copy of the immigration officer's memorandum or an opportunity to
                  respond to it.
               Suresh applied for judicial review on the grounds that the Minister's decision was
                  unreasonable and the Act infringed the Canadian Charter of Rights and Freedoms.
               The Federal Court of Appeal confirmed the Trial Division's dismissal of his
                  application.
               Suresh appealed to the Supreme Court.
 Decision     Suresh‟s appeal allowed.
               The Act was constitutional.
               Provided the Minister exercised her discretion in accordance with the Act, the right to
                   life, liberty and security and the freedoms of expression and association were not
                   violated.
               Expression taking the form of violence was not protected by the Charter.
               The terms danger to the security of Canada and terrorism were not unconstitutionally
                   vague.
 Reasons
               Procedural protections applied where a refugee established a prima facie case there
                   was a risk of torture on deportation.
               Suresh met the threshold but was denied the required procedural safeguards. He
                   should have been provided the material on which the Minister made her decision and
                   an opportunity to respond in writing.
               This denial of his rights was not justified under section 1 of the Charter and the case
                   was remitted to the Minister for reconsideration.
 The court applied the standard of patent unreasonableness to the decision on whether the applicant
   would be a danger if he remained in Canada.
           o Because it involved an exercise of expert knowledge
           o Also because it involved an assessment of facts
           o Patent unreasonableness would involve
                      A decision maker who failed to take appropriate factors into account
                                 The court would not reassess the tribunal‟s interpretation of these factors
                      An arbitrary decision made in bad faith
 The court applied the standard of patent unreasonableness to the decision on whether or not the
   applicant would be in danger upon his return to the other country
           o Because decision was supported by evidence
                      There was no evidence that the minister had not considered the appropriate
                           criteria
           o Also because the procedures taken were correct (no problems of natural justice)
 This is a good example where the court is saying that there is discretion
           o Can‟t be bad faith
           o Must consider appropriate factors
           o A decision maker who must weigh factors must do so on a case by case basis, and can‟t
               establish an automatic rule such that his discretion is fettered for an individual decision
                                                                                                            73



    RE SHEEHAN & CRIMINAL                              ON DC &
                                             1973
INJURIES COMPENSATION BOARD                             ON CA
                Application for judicial review of a decision made by the CICB to refuse Sheehan‟s
                  applications
                Sheehan was assaulted and injured by a fellow prisoner at Kingston Penitentiary (a
                  federal institution)
                During the riot at Kingston Penitentiary he was assaulted again by inmates
   Facts        The CICB refused the applications on the following grounds:
                    Sheehan was a convicted criminal
                    The acts took place within Kingston Penitentiary and the acts were totally outside
                       the power and jurisdiction of Ontario to deal with, and
                    There was no evidence that Sheehan had tried to get compensation for the
                       assaults from any other agency or government
 Decision      Appeal of CICB allowed at ON CA.
               ON DC
                Irrelevant that the victim had been guilty of criminal behaviour
                Also irrelevant that the assaults took place within Kingston Penitentiary
                Finally, there is nothing in the Act that requires the applicant to apply to any other
                  government agency for compensation
                Therefore, the court may properly review the decision of the CICB in this case
               ON CA
 Reasons        The issue in this matter is whether the CICB, in refusing the application, did so within
                  the proper limits of its discretionary function established by the Act, or if it exceeded its
                  statutory jurisdiction so as to bring its discretion within the proper reach of judicial
                  review.
                It is essential to observe that the Act granted the CICB very wide discretion.
                Aside from the obligation not to act arbitrarily or capriciously and to observe the
                  principles of natural justice, the jurisdiction of the CICB to determine the relevant
                  circumstances and to decide the case having regard to these circumstances is
                  untrammelled
 After this case, there were amendments to the act governing the CICB

Dalton v. CICB – 1982 ON DC
o Woman got into a van with a group of men who had been drinking
o She was assaulted and thrown from the van
o The CICB found that she had contributed to the injuries because she never should have gotten into
    the van
ON DC
o The ON DC overturned the decision because:
    o The CICB did not take appropriate factors into account
    o The CICB took account of inappropriate factors
o The court impliedly found that there was a rang of factors that the tribunal was to consider and a
    range that the tribunal could not consider.
o It was clear that it was a right to receive compensation, meaning that the CICB still had some
    discretion
o The more guidance given to the decision maker in terms of factors to be considered, the more
    guidance the court will have to determine if the proper discretion was exercised
                                                                                                          74



Keep in mind that this case occurred before Baker and before the courts acknowledged that they were
using a pragmatic and functional approach.
 SHELL CANADA PRODUCTS V.
                                           1994       SCC
        VANCOUVER (CITY)
                The appellant is a subsidiary of Shell Canada Ltd. and is involved in retail and
                   wholesale marketing of petroleum products in Vancouver.
                It was periodically invited to tender bids for municipal contracts to supply petroleum
                   products until Vancouver City Council passed resolutions that the City would not do
                   business with Shell Canada "until Royal Dutch/Shell completely withdraws from South
    Facts
                   Africa".
                Vancouver purchases petroleum products from another company which, through one
                   of its subsidiaries, also does business with South Africa.
                The British Columbia Supreme Court quashed the resolutions as being ultra vires the
                   municipality. The Court of Appeal reversed the judgment.
 Decision      Appeal of Shell allowed.
               Sopinka (Majority)
                In passing the resolutions, the City was clearly purporting to exercise its statutory
                   powers, and such exercise is reviewable to the extent of determining whether the
                   actions are intra vires.
                Generally, a municipal authority is authorized to act only for municipal purposes.
                Municipal purposes include those that are compatible with the purpose and objects of
                   the enabling statute.
                Any ambiguity or doubt is to be resolved in favour of the citizen, especially when the
                   grant of power contended for is out of the usual range.
                The explicit purpose of the resolutions at issue here is to influence Shell to divest itself
                   of its South African holdings by expressing moral outrage against the apartheid regime
                   and to join the alleged international boycott of its subsidiaries and products until Shell
                   "completely withdraws from South Africa".
                Vancouver was seeking to use its powers to do business to affect matters in another
                   part of the world, a purpose which is directed at matters outside the City's territorial
                   limits.
                Under the Vancouver Charter, Council "may provide for the good rule and government
                   of the city". This places a territorial limit on Council's jurisdiction.
                While Council can have regard for matters beyond its boundaries in exercising its
 Reasons           powers, any action taken in so doing must have as its purpose benefit to the citizens
                   of the City.
                The Charter expressly provides for activities in which Council may engage outside the
                   City's limits even when such activities clearly redound to the benefit of its inhabitants.
                Even if there were a municipal purpose, the resolutions constitute unauthorized
                   discrimination.
                While discrimination for commercial or business reasons is a power that is incidental
                   to the powers to carry on business or acquire property, considerations relating to the
                   political policy of a foreign state are not so essential to the exercise of enumerated
                   powers as to be implied.
                Discrimination of the kind involved here is not only not authorized by the Vancouver
                   Charter, but arguably is prohibited by it.
               McLachlin (Dissent)
                The doctrine that procurement powers are immune from judicial review should not
                   apply to municipalities. If a municipality's power to spend public money is exercised
                   for improper purposes or in an improper manner, the conduct of the municipality
                   should be subject to judicial review.
                While it is important that abuses of power are checked, however, it is also important
                   that the courts not unduly confine municipalities in the responsible exercise of the
                   powers which the legislature has conferred on them.
                                                                                                            75



                      In cases where powers are not expressly conferred but may be implied, courts must
                       be prepared to adopt the "benevolent construction" which this Court referred to in
                       Greenbaum, and confer the powers by reasonable implication. Such a generous,
                       deferential approach to municipal powers will aid the efficient functioning of municipal
                       bodies and avoid the costs and uncertainty attendant on excessive litigation. It is also
                       arguably more in keeping with the true nature of modern municipalities, and with the
                       flexible, more deferential approach this Court has adopted in recent cases to the
                       judicial review of administrative agencies.
                   The resolutions not to do business with Shell until it stops trading with South Africa
                       can clearly be defended under the City's power to engage in commercial and business
                       activities.
                   Improper purposes cannot be said to have rendered the otherwise legitimate decision
                       invalid, since the City's motives did not exceed the powers conferred on it. The
                       Vancouver Charter empowers Council to "provide for the good rule and government of
                       the city".
                   The resolutions discriminate against Shell, but that discrimination is authorized by the
                       Vancouver Charter. While discrimination in the granting of licences, taxes and
                       municipal privileges is generally viewed as requiring express authorization by the
                       empowering legislation, the presumption regarding the exercise of a municipality's
                       business powers is that the municipality has the power to make distinctions between
                       citizens and firms on a wide variety of grounds.
 The decision in our text was restricted to whether the city exercised its authority outside of its
     jurisdiction or for an improper purpose. A city is subject to admin law requirements when it exercises
     its discretion because it is exercising delegated authority.
Dissent (McLachlin)
 Applies a very deferential standard. It is essentially a standard of patent unreasonableness.
 Factors used to determine which standard will be applied:
               o Political accountability of the municipality
               o Expertise of the tribunal. The municipal council is most in touch with what their citizens
                   want.
               o External factors (context), for example what other municipalities were doing.
               o Interfering with municipal decision making might stifle municipality‟s ability to function.
 Essentially, the case outlines the many factors we now use to determine what will lead to deference.
Majority (Sopinka)
 Vancouver was seeking to use its powers to do business to affect matters in another part of the world,
     a purpose which is directed at matters outside the City's territorial limits.
 Under the Vancouver Charter, Council "may provide for the good rule and government of the
     city". This places a territorial limit on Council's jurisdiction.
 While Council can have regard for matters beyond its boundaries in exercising its powers, any action
     taken in so doing must have as its purpose benefit to the citizens of the City.
               o In this case, there was no real benefit to the citizens, but rather there was an
                   advancement of political ideals.
What is the difference between the approaches?
 Majority takes a much narrower view of the role of a municipality. Majority places a territorial
     boundary on the powers of a municipal council.
If the case were decided today, what approach would the court take (i.e. after Baker)?
 A pragmatic / functional approach
                                                                                                        76



How do we know what factors a tribunal took into account?
o Tribunals must give reasons
o Therefore, we would expect to see the required criteria covered in the reasons
o However, it is possible that the reasons mention only appropriate criteria but actually considers others
o There are also frequently clauses that allow the decision maker to consider “other relevant factors”
   o The question then becomes whether the factor was relevant
   o One can look at the overall statutory purpose in such cases
o The issue also arises where there is no guidance as to what criteria should be considered

How does one determine the purpose of legislation?
o The courts do not look at the legislature or cabinet as a number of individual decision makers who
   have to give reasons for their decisions.
o The purpose is to be derived from the face of the legislation.
o There are however times where the court will look at extrinsic evidence.
   o For instance, it my look at reports that led to the legislation.
   o The courts will not look into the minds of individual legislators to determine the purpose of
      legislation.
                                                                                                          77



b) Discretion and the Charter: Unreasonableness Revisited

SLAIGHT COMMUNICATIONS INC.
                                          1989        SCC
           V. DAVIDSON
                 Respondent had been employed by appellant as a "radio time salesman" for three and
                   a half years when he was dismissed on the ground that his performance was
                   inadequate.
                 Respondent filed a complaint and an adjudicator appointed by the Minister of Labour
                   under s. 61.5(6) of the Canada Labour Code held that respondent had been unjustly
                   dismissed.
                 Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on
                   appellant an obligation to give respondent a letter of recommendation certifying (1)
  Facts            that he had been employed by the radio station from June 1980 to January 20, 1984;
                   (2) the sales quotas he had been set and the amount of sales he actually made during
                   this period; and (3) that an adjudicator had held that he was unjustly dismissed.
                 The Federal Court of Appeal dismissed an application by appellant to review and set
                   aside the adjudicator's decision.
                 The purpose of the appeal at bar is to determine whether s. 61.5(9)(c) of the Code
                   authorizes an adjudicator to make such orders; and in particular, whether the orders
                   infringed appellant's freedom of expression guaranteed by s. 2(b) of the Canadian
                   Charter of Rights and Freedoms.
                Appeal of Slaight Communications dismissed.
 Decision
                The orders infringe s. 2(b) of the Charter, but are justifiable under s. 1.
                 The Charter applies to orders made by the adjudicator. The adjudicator is a creature of
                  statute.
                 The word "like" in the English version of s. 61.5(9)(c) of the Canada Labour Code does
                  not have the effect of limiting the powers conferred on the adjudicator by allowing him
                  to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of
                  that subsection.
                 The adjudicator's orders were reasonable in the administrative law
                  sense. Administrative law unreasonableness, as a preliminary standard of review,
                  should not impose a more onerous standard upon government than would Charter
                  review.
                 While patent unreasonableness is important to maintain for questions untouched by the
                  Charter, such as review of determinations of fact, in the realm of value inquiry the
                  courts should have recourse to this standard only in the clearest of cases in which a
 Reasons          decision could not be justified under s. 1 of the Charter.
                 The adjudicator's first order infringed s. 2(b) of the Charter but is saved under s. 1.
                 The adjudicator's second order also infringed s. 2(b) of the Charter. It was an attempt
                  to prevent the appellant from expressing its opinion as to the respondent's
                  qualifications beyond the facts set out in the letter. But this order, too, was justifiable
                  under s. 1.
                 First, the objective was of sufficient importance to warrant overriding appellant's
                  freedom of expression. Like the first order, the objective of the second order was to
                  counteract the effects of the unjust dismissal by enhancing the ability of the employee
                  to seek new employment without being lied about by the previous employer.
                 To constitutionally protect freedom of expression in this case would be tantamount to
                  condoning the continuation of an abuse of an already unequal relationship.
                 Second, the means chosen were reasonable. Like the first order, the second order was
                  rationally linked to the objective.
o Case stands for the proposition that when one is interpreting a statute, and there are two
   interpretations (one which is inconsistent with the Charter and one which is consistent with it), the
   court should follow the interpretation that is consistent with the Charter
                                                                                                              78



Lalonde v. Ontario (Commission de Restructuration des Services de Sante) – 2001 ON CA
o Montfort is an Ontario francophone hospital.
o The Health Services Restructuring Commission issued its first report and a notice of intention to close
    Montfort in 1997.
o In response to a storm of protest, the final report of the Commission reversed the initial proposal to
    close Montfort and instead issued directions which would substantially reduce Montfort's services to
    the point where Montfort would no longer function as a community hospital.
o Montfort and the respondents brought an application to set aside the directions of the Commission.
o The application was allowed.
    o The Divisional Court found that Commission's directions would have the following effects:
              reduce the availability of health care services in French to the francophone population in
                  the Ottawa-Carleton region, a region designated as bilingual under the French Language
                  Services Act, R.S.O. 1990, c. F.32;
              jeopardize the training of French language health care professionals; and impair
                  Montfort's broader role as an important linguistic, cultural and educational institution, vital
                  to the minority francophone population of Ontario.
              The court held that the directions did not violate s. 15 of the Canadian Charter of Rights
                  and Freedoms, as any differential treatment was not based upon an enumerated or
                  analogous ground.
              Montfort appealed that portion of the judgment. The court held that the directions should
                  be set aside because they violated one of the fundamental organizing principles of the
                  Constitution, the principle of respect for and protection of minorities.
              Ontario appealed that portion of the judgment.
o Held, the appeals should be dismissed.
    o The Divisional Court did not err in its findings of fact.
    o Section 16(3) of the Charter does not protect the status of Montfort as a francophone institution.
    o The principle of respect for and protection of minorities is a fundamental structural feature
        of the Canadian Constitution that both explains and transcends the minority rights that are
        specifically guaranteed in the constitutional text.
    o In exercising its discretion as to what is in the public interest, the Commission was required by the
        fundamental principles of the Constitution to give serious weight and consideration to the
        importance of Montfort as an institution to the survival of the Franco-Ontarian minority. The
        Commission considered this beyond its mandate and its directions were therefore subject to
        judicial review.
o The decision of the court of appeal relied on two fronts:
    o Whether the order complied with the French Language Services Act
    o Whether the principle of minority protection had been violated
o Prof argues that the decision maker was already subject to the Charter, but his decision was reversed
    because he had not taken into account an unwritten principle which supported the written Charter.
    What was the decision maker to do?
    o This is different from a situation where the unwritten principle obliges the decision maker to do
        something more than the written provisions of the Charter.
                                                                                                        79



THE JURISDICTION OF TRIBUNALS AND THE CONSTITUTION
What can tribunals decide? How do they deal with Charter issues that come before them?
o Cuddy Chicks stands for the idea that a tribunal may make a decision on a constitutional issue that
   comes before it. However, a tribunal may not quash legislation.
o Cooper was then decided and the court expressed reluctance in the desirability of tribunals making
   Charter decisions.
o Of course, such decisions are always subject to review by the court on the standard of correctness.
o Many argue that this is sufficient protection, but some do not agree.

  COOPER V. CANADA (HUMAN
                                   1996       SCC
     RIGHTS COMMISSION)
             The appellants, who were being retired as airline pilots at age 60 pursuant to their
              collective agreement, alleged age discrimination, given that most employees in
              Canada are required to retire only at age 65.
             They filed complaints with the Canadian Human Rights Commission in April and July
              1990 and an investigator was appointed.
             The employer submitted that no discrimination occurred in that the employment policy
   Facts      was a bona fide occupational requirement.
             The investigator recommended that the Commission dismiss the appellants'
              complaints.
             The appellants applied for judicial review in the Federal Court Trial Division, seeking
              an order to quash the Commission's decision and to direct it to request the President
              of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their
              complaints. The motion was dismissed and that finding was upheld on appeal.



               Lamer
                Judicial review, while necessary to preserve important constitutional values, is
                 inherently controversial in a democracy like Canada because it confers on unelected
                 officials the power to question decisions arrived at through the democratic process.
                The constitutional status of the judiciary, flowing as it does from the separation of
                 powers, requires that certain functions be exclusively exercised by judicial bodies. The
                 judiciary, while it does not have an interpretive monopoly over questions of law, must
                 nevertheless have exclusive jurisdiction over challenges to the validity of legislation
                 under the Constitution of Canada, and particularly the Charter.
                Only courts have the requisite independence to be entrusted with the constitutional
                 scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment
                 of the legislature.
 Reasons
                Mere creatures of the legislature, whose very existence can be terminated at the stroke
                 of a legislative pen, whose members usually serve at the pleasure of the government of
                 the day and whose decisions in some circumstances are properly governed by
                 guidelines established by the executive branch of government, are not suited to this
                 task.
                This conclusion does not detract from the power of the Commission to determine
                 whether complaints fall within federal jurisdiction according to the division of
                 powers. An important conceptual difference exists between the Commission's
                 interpreting its enabling legislation in light of the division of powers, and the
                 Commission's questioning the validity of that legislation in light of the Charter.
                                                                                                          80



               L’HD (Dissent)
                Every tribunal charged with the duty of deciding issues of law has the
                  concomitant power to decide those issues. The fact that the question of law concerns
                  the effect of the Charter does not change the matter.
                Two related principles of general application apply. First, all decision-making tribunals,
                  whether courts or administrative tribunals, are bound to apply the law, including the
                  Charter. Second, a tribunal's ruling that a law is inconsistent with the Charter is
                  nothing more than a case of applying the law.
                Douglas College, Tetréault-Gadoury and Cuddy Chicks stand for two related
                  propositions. First, an administrative tribunal which has the power to decide questions
                  of law has the power to decide the validity of particular laws under the
                  Charter. Second, an administrative tribunal provided that it is discharging a function
                  assigned to it by its legislation may, in the course of doing so, consider and decide
                  Charter issues. As a corollary, the cases affirm a third proposition: no express term is
                  required for the tribunal to apply the Charter.

The following two cases have essentially taken over Cooper. They would allow tribunals to make Charter
decisions.

Nova Scotia v. Martin, Nova Scotia v. Laseur – 20032scr504
o Martin
   o Deals with ability to obtain benefits for chronic pain under worker‟s comp
   o Generally, the benefits for chronic pain were different than others
   o The provisions excluded chronic pain from the normal system of compensation
   o Instead of normal benefits, the victim was to receive a four week benefits program beyond which
      nothing could be recovered
   o The question was whether this was discrimination based on disability
   o A further question was whether the tribunal could hear such a Charter issue
   o The court found that the tribunal had no jurisdiction to decide on Charter issues
   o SCC found that the regulations did infringe s. 15 and were not justified under s. 1
           They also found that the court was wrong to find that the tribunal did not have jurisdiction
               to rule on the constitutionality of the provisions
           Tribunals which have either explicit or implicit authority to answer questions of law
               because of legislation, also have jurisdiction to decide whether that provision violates the
               Charter
           There may be an explicit legislative withdrawal of the right of a tribunal to undertake
               Charter reviews
           To the extent that Cooper is inconsistent, it should no longer be relied upon

Paul v. BC – 20032scr585
o Involved the BC ministry of forestry and the rights of aboriginals to log (whether they needed a
   license)
o The person with the logs was building a deck, and argued that he had an aboriginal right to cut timber
   for his house (and that the law against cutting federal forests did not apply to him)
o The tribunal found that Paul contravened the provisions
o The appeal commission decided that they should in fact hear arguments as to whether there was an
   aboriginal right to logging
o The SCC said that the tribunal had the right to hear arguments with respect to aboriginal rights
   o Is essentially the same analysis as Martin
   o The question is whether the legislation grants the tribunal either explicit or implicit authority to
        answer questions of law. If so, the tribunal can hear aboriginal rights arguments.
o One might wonder what expertise a forest appeals tribunal would have in deciding aboriginal rights.
                                                                                                         81



STANDING

Standing determines who may bring an action before the court. It allows the courts to exercise some
control over the matters they adjudicate. The approach taken to determining standing has expanded over
the years.

A related matter is the doctrine of muteness, where the courts won‟t hear a case because an issue no
longer exists. For example, legislation may have changed such that the issue doesn‟t exist in the new
legislation.

The question is what the proper role of a court is in a democracy. Some questions are said not to be
justiceable by the court.
o Traditionally, the only person who could bring a judicial review proceeding was someone whose
     personal rights were at stake or someone who suffered some type of damage as a result of the action
o In Voice v. Paddington Council, a person sued due to a loss of light due to construction nearby.
     o Although the person could not show a direct interest in the right to light, he was given standing
         because he could show an interest in a public right.
     o The case set out a number of special exceptions. If one could not fit within one of the exceptions,
         they had to get permission from the AG to bring a “relator” action.
     o Although such actions are not frequent, they still exist today.
o Another way an action can be started is by the AG himself.
     o The AG can bring public interest matters personally.
     o Such actions are not supposed to be launched after instructions from cabinet.
     o For example, the AG brought an action for an injunction to limit picketing at abortion clinics.
     o Such actions are usually brought when the AG feels that the action cannot be brought by a
         member of the public
o Another case, Thorson, dealt with the ability of a π to challenge Canada‟s official languages act
     o The π said that the act was ultra vires the federal government
     o The ON CA held that Thorson did not have standing because he was not prejudiced by the act
     o The SCC said that the statute affected everyone alike, that standing had been relaxed in other
         matters, that the AG had refused a request to challenge the act, and the issue was one of
         constitutionality. Therefore, Thorson was granted standing.

Standing in Judicial Review Proceedings

o   The two main traditional requirements to be granted standing were:
    o Special interest (or public interest), or
    o Interference with a private right
o   The rationale for such a rule is that a party who is directly affected will be most able to bring facts
    before the court. Courts prefer to make decisions with facts before them rather than in a vacuum.
    o This is always an issue when the government refers a case to the court without an appropriate
        factual background
o   The law of standing expanded with the introduction of the Charter in the constitutional realm
    o The three main decisions in constitutional matters influenced Finlay:
             Thorson, McNeil, and Borowski were the cases
             All three involved people who were not directly affected by the issue they wished to bring
                 before the court
             It was not clear after these cases whether the test applied to constitutional cases would
                 be applied in administrative law cases.
             Finlay answered this question.
                                                                                                       82



       FINLAY V. CANADA
                                         1986        SCC
    (MINISTER OF FINANCE)
               The respondent alleges that he is a resident of Manitoba and a person in need within
                 the meaning of the Canada Assistance Plan ("the Plan") whose sole support is the
                 social allowance he receives under the Manitoba Social Allowances Act;
                    That for a period of forty-six months an amount was deducted from his monthly
                       social allowance in payment of a debt owing by him to the Crown for overpayment
                       of allowance;
                    And that prior to receiving social allowance he received municipal assistance,
                       which by The Municipal Act of Manitoba is made a debt owing by the respondent
                       to the municipality.
               The respondent contends that the continued payments by Canada to Manitoba of
   Facts
                 contributions under the Plan are illegal, as being contrary to the statutory authority
                 conferred by s. 7(1) of the Plan, because they contribute to the cost of a provincial
                 system of assistance to persons in need
               On a motion to strike by the appellants under Federal Court Rule 419(1) the
                 respondent's statement of claim was struck out in the Trial Division of the Federal Court
                 on the grounds that the respondent lacked the requisite standing to bring his action and
                 the statement of claim did not disclose a reasonable cause of action.
               A majority of the Federal Court of Appeal allowed an appeal from this order and
                 restored the respondent's statement of claim.
               The Minister of Finance appealed that judgment.
 Decision     Appeal of Canada dismissed.
               The respondent does not have a sufficiently direct, personal interest in the legality of
                 the federal cost-sharing payments, as distinct from provincial compliance with the
                 conditions and undertakings imposed by the Plan, to bring him within the general
                 requirement for standing to sue, without the consent of the Attorney General, for a
                 declaration or an injunction to challenge an exercise of statutory authority.
               He should, however, be recognized, as a matter of judicial discretion, as having public
                 interest standing to bring his action.
               The approach to public interest standing reflected in the judgments of this Court in
                 Thorson, McNeil and Borowski, in which there was a challenge to the constitutionality
 Reasons
                 or operative effect of legislation, should be extended to a non-constitutional challenge
  LeDain
                 by an action for a declaration to the statutory authority for public expenditure or other
                 administrative action.
               The respondent meets the criteria laid down for the discretionary recognition of public
                 interest standing in Thorson, McNeil and Borowski.
                    His action raises justiciable issues.
                    The issues are serious ones, and the respondent has a genuine interest in them.
                       The respondent was not simply a “busy-body”.
                    If the respondent were denied standing there would be no other way in which the
                       issues could be brought before a court.
 Finlay argued that he met the traditional test because he was being financially harmed by the plan
           o The court found that Finlay had no private right to receive social assistance.
           o Furthermore, there wasn‟t a sufficient nexus between the provisions in the act and the
               harm caused to Finlay. The court simply thought that the province would change the
               provisions so as to be able to pay back their debt if the legislation was found to be
               unconstitutional as it is now.
 Finlay also argued that he standing because of a public interest
           o The court allowed this argument because it met the criteria from Thorson, McNeil, and
               Borowski (see above)
           o Finlay had a genuine interest in the operation of the legislation because he was receiving
               assistance. Furthermore, no one else could have a more direct interest in the matter.
           o The court also said that there was no requirement to ask the AG to bring an action
                                                                                                                 83



In Finlay, LeDain said that there was no need to draw a distinction between an applicant seeking an
injunction and one seeking a declaration. There was no need to make such a distinction.
o Before Finlay, there was uncertainty surrounding administrative law standing
o Some cases decided that for certiorari the only people that could challenge were those with a direct
    interest. The standard was different for mandamus, and injunctions.
o Some standing issues have been altered by statute. For example planning act issues and coroner‟s
    act issues have different standards.

Public Interest Standing

       CANADIAN COUNCIL OF CHURCHES
    V. CANADA (MINISTER OF EMPLOYMENT                       1992     SCC
                 AND IMMIGRATION)
                     Appeal from a Federal Court judgment holding that the appellant had no standing to
                        challenge provisions of the Immigration Act.
                     The provisions were amendments to the Immigration Act dealing with the procedures
     Facts
                        governing refugee claims.
                     The appellant argued that most of the amended provisions were contrary to the
                        Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.
    Decision       Appeal of Canadian Council of Churches dismissed.
                     In order to be granted public interest standing:
                        The invalidity of the legislation in question must raise a serious issue,
                        The plaintiff must be directly affected by the legislation or have a genuine interest
                           in its validity, and
                        There must not be another reasonable and effective way to bring the issue before
                           the court.
                     The appellant failed to establish that the issue could not be brought before the
                        court in another way. Every refugee claimant had standing to challenge the
    Reasons             constitutional validity of the legislation and any administrative decisions made under
                        the statute. The court also noted that there were actually many actions being
                        brought by refugees.
                                 o This would also provide the court with a factual basis for making a
                                     determination
                     The court did not accept the argument that the imposition of a 72-hour removal order
                        under the statute would undermine a claimant's ability to challenge the legislation.
                                 o The applicant also argued that many of the applicants were impecunious
                                 o The court noted that extradition orders were rarely carried out as
                                     expeditiously as they could be
     The court looked at the purpose of granting public interest standing. Found that the purpose was to
      ensure was not immune from scrutiny.
     Court found that the principles of public interest standing did not need to be expanded beyond the
      three criteria normally used. However, the court said that the criteria should be interpreted
      generously in public interest standing applications.
     The court did find that the applicant had a genuine interest in the issue given their continuing interest
      in refugee matters.
     The court also dealt with intervenor status
               o Noted that there had been an increasing number of intervenors
               o Intervenors are present to provide their own particular expertise
               o The courts have discretion as to whether or not to allow intervenors to argue
               o Rule 13 of the Rules of Civil Procedure sets out the rules for intervenors and friends of
                    the court

Intervenor status confers all the rights of the original parties to the litigation upon the applicant, while a
friend of the court is restricted to the level of participation specified by the court and does not have the
right of appeal.
                                                                                                        84



     VRIEND V. ALBERTA                 1998       SCC
            Vriend lost his position as a teacher at a private religious school when he admitted that
               he was a homosexual
            The Alberta HRC rejected his complaint of discrimination on the basis of sexual
               orientation because it was not an enumerated ground
            Vriend sought a declaration that the omission of sexual orientation from the list of
 Facts
               proscribed species of discrimination was contrary to s. 15 of the Charter
            Vriend did not confine his challenge to the employment provisions of the Alberta
               Individual Rights Protection Act, but rather sough to raise the issue generally in
               relation to all provisions in the Act spelling out the proscribed species of discrimination.
            Alberta challenged Vriend‟s standing to make such a broad challenge.
Decision   Alberta‟s appeal dismissed.
           The court found that Vriend met the criteria set out in Canadian Council of Churches.
            A serious issue as to constitutional validity is raised with respect to all of the provisions
               challenged
            Further, Vriend has a genuine and valid interest in all of the provisions he seeks to
Reasons        challenge
            The only other way the issue could be brought before the Court would be to wait until
               someone is discriminated against on the ground of sexual orientation in the situations
               covered by each provision. This would be a waste of judicial resources and would
               cause unfair delay for the individuals involved.

     HARRIS V. CANADA                2000      Fed CA
           Appeal by the Attorney General of Canada from a decision that Harris had public
             interest standing in his action against the federal government.
           In 1985, Revenue Canada ruled that a Canadian-resident trust would incur an
             immediate tax liability if the trust's residence changed.
           In 1991, Revenue Canada issued a contradictory ruling regarding another trust.
           The Auditor General issued a report criticizing the 1991 ruling.
           Harris was a taxpayer and a member of an organization that sought to ensure the fair
             administration of the taxation system.
 Facts
           He brought an action against the federal government, alleging that the Minister of
             National Revenue afforded preferential treatment to certain taxpayers.
           He sought a declaration that the Minister was obliged to use all available measures to
             collect any tax properly due as a result of the transaction referred to in the 1991 ruling.
           A prothonotary allowed the Attorney General's motion to strike Harris' statement of
             claim on the grounds that the claim did not disclose a reasonable cause of action and
             Harris did not have standing.
           The Federal Court, Trial Division allowed Harris' appeal.
Decision  Appeal of AG of Canada dismissed.
           Considering that the material facts in Harris' statement of claim were supported by the
             Auditor General's report, it was not plain and obvious that the action could not
             succeed. The claim raised a justiciable issue because it suggested a potential violation
             of the Income Tax Act.
Reasons
          Standing
           The issues raised were serious. Harris had a genuine interest in these issues and
             there was no other reasonable and effective manner in which to bring them before a
             court.
                                                                                                           85



The Role of the Attorney General
The AG was traditionally regarded as the only appropriate person to commence litigation in the name of
the public interest.

        ENERGY PROBE V.
  CANADA (ATOMIC ENERGY                    1984     Fed TD
        CONTROL BOARD)
                A member of the Atomic Energy Control Board was president and director of a
                   company selling significant quantities of radiation-resistant cables for nuclear reactors
                   to Ontario Hydro when the A.E.C.B. issued a renewed operating licence for Ontario
  Facts            Hydro's Pickering "B" Nuclear Generating Station.
                In an action brought by the applicant to quash the decision of the A.E.C.B. for
                   pecuniary bias, the Attorney General of Canada seeks to be added as a party/
                   intervener, to be assured of a right to appeal any decision in the action.
 Decision      Application granted.
                The Attorney General should be added as a party because he has a direct interest in
                   the outcome of this case and because it raises a question of general importance on
                   which the Court should have his arguments.
                A finding of bias would make the Board member ineffective for many decisions and
                   would raise the issues of the composition of this and other similar boards and of the
                   conflict of interests guidelines which should be applied.
 Reasons        The general public confidence in boards of this nature is also involved.
                The Attorney General has a common law right to intervene based on section 5 of the
                   Department of Justice Act which confers on the Attorney General of Canada the same
                   duties and powers that belong to the Attorney General of England, if applicable to
                   Canada.
                While their roles may differ in certain respects, there is no difference in what that role
                   might be in a case such as this.
 It is very rare that a court declines to hear the AG on a matter of public importance

The Role of Tribunals in Judicial Review
o Judicial Review Procedure Act
o Once a tribunal‟s decision is being reviewed, the tribunal must file its records with the court
o The AG has a right to intervene and must be given notice of all judicial reviews
o The question is what the appropriate role of the tribunal is upon judicial review
   o Why would we want a tribunal present?
            The tribunal members may be able to clarify the procedure they used. For example, in
               the Bathurst Consolidated case, the tribunal could explain the purpose of the meeting of
               all board members.
            When the issue is whether the decision was patently unreasonable, the tribunal may be
               able to provide assistance to the court as to how they came to the decision
   o Why not?
            The reasons for the tribunal‟s decision should be contained in the written reasons.
               However, not all tribunals are at the judicial end of the spectrum.
            On issues such as bias, the court should be able to decide the issue without input from
               the tribunal members. All the court needs to find is a reasonable apprehension of bias.
   o The law is unsettled in this area
            If the question goes to jurisdiction, the court is more willing to allow the tribunal to
               intervene
            The court may look at the expertise of the tribunals, but it is unusual to have the tribunal
               present to argue that they have a high level of expertise
            Breaches of natural justice (which go to jurisdiction) are supposed to be on the face of
               the record. Therefore, the court will not allow a tribunal to intervene on such issues.
   o Essentially, the tribunal is not supposed to be a protagonist, but rather is simply supposed to offer
       assistance to the court
                                                                                                           86



JUDICIAL REVIEW PROCEDURE ACT

Judicial review is available where someone has exercised a “statutory power” or a “statutory power of
decision”, as defined in s. 1 below:

      “statutory power” means a power or right conferred by or under a statute,
        (a)      to make any regulation, rule, by-law or order, or to give any other direction having
        force as subordinate legislation,
        (b)      to exercise a statutory power of decision,
        (c)      to require any person or party to do or to refrain from doing any act or thing that,
        but for such requirement, such person or party would not be required by law to do or to
        refrain from doing,
        (d)      to do any act or thing that would, but for such power or right, be a breach of the
        legal rights of any person or party

      “statutory power of decision” means a power or right conferred by or under a statute to
         make a decision deciding or prescribing,
         (a)     the legal rights, powers, privileges, immunities, duties or liabilities of any person
         or party, or
        (b)      the eligibility of any person or party to receive, or to the continuation of, a benefit or
        licence, whether the person or party is legally entitled thereto or not, and includes the powers of
        an inferior court.
                 Note that judicial review is not available for the Superior Court of Justice. They don’t deal
                 with issues that are reviewable, but rather are the ones who would conduct a review.
                 They cannot review their own work.

Section 2 outlines how to go about applying for judicial review. An application for judicial review does not
need to specify which writ you are operating under (i.e. mandamus, certiorari, etc.). You simply have to
set out the grounds for your claim and the remedy sought.

        Applications for judicial review
                  2. (1) On an application by way of originating notice, which may be styled
        “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by
        order grant any relief that the applicant would be entitled to in any one or more of the
        following:
               1. Proceedings by way of application for an order in the nature of mandamus,
               prohibition or certiorari.
               2. Proceedings by way of an action for a declaration or for an injunction, or both, in
               relation to the exercise, refusal to exercise or proposed or purported exercise of a
               statutory power. R.S.O. 1990, c. J.1, s. 2 (1).
        Error of law
                  (2) The power of the court to set aside a decision for error of law on the face of
        the record on an application for an order in the nature of certiorari is extended so as to
        apply on an application for judicial review in relation to any decision made in the exercise
        of any statutory power of decision to the extent it is not limited or precluded by the Act
        conferring such power of decision. R.S.O. 1990, c. J.1, s. 2 (2).
        Lack of evidence
                  (3) Where the findings of fact of a tribunal made in the exercise of a statutory
        power of decision are required by any statute or law to be based exclusively on evidence
        admissible before it and on facts of which it may take notice and there is no such
        evidence and there are no such facts to support findings of fact made by the
        tribunal in making a decision in the exercise of such power, the court may set
        aside the decision on an application for judicial review. R.S.O. 1990, c. J.1, s. 2 (3).
                                                                                                         87



        Power to set aside
                 (4) Where the applicant on an application for judicial review is entitled to a
        judgment declaring that a decision made in the exercise of a statutory power of decision
        is unauthorized or otherwise invalid, the court may, in the place of such declaration, set
        aside the decision. R.S.O. 1990, c. J.1, s. 2 (4).
        Power to refuse relief
                 (5) Where, in any of the proceedings enumerated in subsection (1), the court
        had before the 17th day of April, 1972 a discretion to refuse to grant relief on any
        grounds, the court has a like discretion on like grounds to refuse to grant any relief on an
        application for judicial review. R.S.O. 1990, c. J.1, s. 2 (5).
                 Means that the court still has the power to refuse judicial review on bases such
                 as laches or coming to the court of equity without clean hands.

        Defects in form, technical irregularities
        3. On an application for judicial review in relation to a statutory power of decision, where
        the sole ground for relief established is a defect in form or a technical irregularity, if
        the court finds that no substantial wrong or miscarriage of justice has occurred, the court
        may refuse relief and, where the decision has already been made, may make an order
        validating the decision, despite such defect, to have effect from such time and on such
        terms as the court considers proper.

        Interim order
        4. On an application for judicial review, the court may make such interim order as it
        considers proper pending the final determination of the application.
                Judicial review does not stay a decision automatically under the Judicial Review
                Procedure Act.

Section 5 permits an extension of time limits for bringing an action in cases where other statutes
impose a time limit.

If there is no appeal right, the only remedy is judicial review. There is some caselaw to suggest that one
must exhaust all other administrative law remedies before seeking judicial review.

TYPES OF RELIEF

Mandamus – requires a person to take a particular action
Prohibition – prevents an authority from acting
Certiorari – a review of the jurisdiction of the decision maker
Declaration – may get a declaration of rights against the Crown, even where you cannot the compel the
Crown to take an action. However, it is expected that the Crown will comply with declarations made by
the courts.

Circumstances where the court is likely to substitute its decision:
o Standard of review was correctness
o The decision was wrong
o There is only really one other answer possible
Otherwise, the court will refer the decision back to the tribunal for a decision.
o For instance, where there is a violation of PF, the courts most often refer the decision back to the
    tribunal

Remember that damages cannot be granted by a tribunal, because of the limited jurisdiction.
o However, they can award money in the sense that they can find that someone has an entitlement to
   some source of money
                                                                                                              88



MANDAMUS AND INJUNCTIONS AGAINST THE CROWN

The central difference between injunctions in public and private law is the element of the public interest.

Metropolitan Stores (see next page for more detail)
o An injunction could amount to either the litigant being exempted from what was being challenged or it
   could be regarded as a suspension case
   o A suspension case is one where the interim remedy sought would have the effect of suspending
       the legislation challenged so that it is not functional for anyone
   o Courts are less likely to grant an injunction in suspension cases
   o The logic is that there is a presumption that a program put in place for the public benefit and the
       public should be entitled to the benefit of the program.
   o Therefore, the issue is more than the complainant / applicant v. the government. One must also
       consider the public interest.

RJR MacDonald (see 2 pages later for detail)
o The legislature is not the sole owner of the public interest. However, the public interest is the over-
   riding approach in interlocutory remedy cases in the public sphere.

Canada (AG) v. Saskatchewan Water Corporation – 1993 SK CA
o The AG and private citizens started an action against SWC (a Crown corporation) for an injunction to
   prevent them from continuing to construct dams
o They claimed that the dams breached an agreement between SWC and the federal government
o The chambers judge dismissed the application for interlocutory relief on the basis that it would
   amount to the award of an injunction against the Crown in right of Saskatchewan which was
   prohibited by s. 17(2) of the Saskatchewan Proceedings Against the Crown Act
o The appeal at the SK CA was allowed
   o The view taken by the chambers judge that ministers, officers, servants, and agents of the Crown
       enjoy Crown immunity equally and fully was fundamentally flawed.
             Ministers are servants of the Crown, but do not enjoy the Crown‟s immunities
             The purpose of the Crown Proceedings Act was to make it easier, not more difficult, to
               sue the Crown
                                                                                                           89



INTERLOCUTORY RELIEF AND STAYS

There is some authority to the effect that the service of an application for certiorari automatically stays a
tribunal‟s proceedings until such time as the application has been determined – UFCW, Local 1252 v. PEI
(Labour Relations Board).
o However, most authorities have held that there is no obligation on a tribunal to halt its proceedings
     upon being served with an application for relief in the nature of certiorari and prohibition.

Another potential use of interlocutory relief is the idea of seeking interlocutory relief in aid of the
administrative process: to prevent actions being taken by those subject to that process pending the
conclusion of a hearing or investigation.

Manitoba (AG) v. Metropolitan Stores (MTS) Ltd. – 1987 SCC
o The Manitoba Labour Board was empowered by The Labour Relations Act to impose a first collective
   agreement.
o When the union applied to have the Board impose a first contract, the employer commenced
   proceedings in the Manitoba Court of Queen's Bench to have that power declared invalid as
   contravening the Canadian Charter of Rights and Freedoms.
o Within the framework of this action, the employer applied by way of motion in the Court of Queen's
   Bench for an order to stay the Manitoba Labour Board until the issue of the legislation's validity had
   been heard.
o The motion was denied.
o The Board, unfettered by a stay order, indicated that a collective agreement would be imposed if the
   parties failed to reach an agreement.
o The Manitoba Court of Appeal allowed the employer's appeal from the decision denying the stay
   order and granted a stay.
o At issue here are:
   o (1) whether the Court of Appeal erred in failing to recognize a presumption of constitutional
       validity where legislation is challenged under the Charter;
   o (2) what principles govern the exercise of a Superior Court judge's discretionary power to order a
       stay of proceedings until the constitutionality of impugned legislation has been determined; and
   o (3) whether the Court of Appeal's intervention in the motion judge's discretion was appropriate.
o HELD: The appeal was allowed.
   o The innovative and evolutionary character of the Canadian Charter of Rights and Freedoms
       conflicts with the presumption of constitutional validity in its literal meaning -- that a legislative
       provision challenged on the basis of the Charter can be presumed to be consistent with the
       Charter and of full force and effect.
   o However, a stay of proceedings or injunctive relief should only be granted subject to certain tests
       and the Court went on to outline the tests and the situations where it is just and equitable to grant
       a stay of proceedings.
   o In cases involving injunctions directed at statutory authorities, the balance of convenience is to
       include the public interest and this is the rule even where there is a prima facie case against the
       agency that would require the coming into play of s. 1 of the Charter.
   o The rule of the public interest should not be interpreted as meaning that interlocutory injunctive
       relief will be granted only in exceptional or rare circumstances, at least in exemption cases when
       the impugned provisions are in the nature of regulations applicable to a relatively limited number
       of individuals and where no significant harm would be suffered by the public.
   o On the other hand, the public interest normally carries greater weight in favour of compliance with
       existing legislation in suspension cases when the impugned provisions are broad and general
       and such as to affect a great many persons.
   o In this case, the lower court applied the correct principles in taking into consideration the public
       interest and the inhibitory impact of a stay of proceeding upon the Board in its authority to impose
       the first collective agreement, in addition to its effect upon the parties.
   o The Court of Appeal was not justified in substituting its discretion for that of the lower court.
                                                                                                        90



There is three part test for getting an interlocutory injunction:
   o Π must have a triable issue (not vexatious or frivolous)
   o Π must show a risk of irreparable harm ($ damages will not suffice)
   o The balance of convenience must favour the π (It would be unfair to the Δ to grant an injunction
        to the π if it also harms the Δ)

The following case applies the three part test:
RJR MacDonald Inc. v. AG of Canada – 1994 SCC
o RJR brought an application for interlocutory relief from compliance with certain Tobacco Act
   Regulations which prohibited the advertisement of tobacco products and regulated the health
   warnings which must be placed upon tobacco products.
o RJR challenged the constitutional validity of the Tobacco Products Control Act on the grounds that it
   was ultra vires the Parliament of Canada and that it violated section 2(b) of the Canadian Charter of
   Rights and Freedoms.
o RJR sought a stay of the judgment of the Quebec Court of Appeal holding that the Act did not infringe
   the Charter and was not ultra vires the Parliament of Canada.
o RJR argued that compliance with the Act and the amended Regulations would require the applicants
   to incur irrecoverable expenses in the event that the legislation was found unconstitutional.
o Application dismissed.
   o Although there was a serious question of law raised in the main action and the applicants would
         suffer irreparable harm if the applications were not granted and the appeals were successful, the
         balance of convenience did not favour the applicants.
   o Any economic loss suffered by the applicants could be passed on to consumers. The legislation
         was passed in order to promote and protect public health and the applicants failed to demonstrate
         a more compelling public interest in suspending the application of the legislation.

Availability of Interlocutory Relief When You Can’t Get it from a Tribunal
o Human Rights Commission v. Canadian Liberty Net
   o CLN was operating a phone message service
   o There was an allegation that it infringed the HR code
   o The HRC wanted to shut down CLN pending an investigation
   o The court held that there was authority to consider whether an injunction should be granted
             The court was considering whether it should be granted in this case
             Even if there was no authority for the tribunal to provide for an injunction, the
                 superior court may still have the authority to grant an injunction

								
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