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
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
Social control programs – ex. Regulation of mentally ill, immigration rules, social welfare programs,
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
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
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
o Statutory Powers and Procedures Act
Sets out legislative scheme and procedures that certain tribunals must follow.
Where is the authority to act usually found?
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
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
One can ask for the decision to be quashed
o Sometimes, the court refers the decision back with specific directions
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
Duty of Fairness
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 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
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
 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  SCR 12 (Que).
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
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
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.
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
- Cooper brought an action for trespass and damages
- “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
- 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
- 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
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  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
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
- Went back to Ridge v. Baldwin
o 1. Master/servant (contractual agreement) – does NOT engage any
Rejects judicial –
procedural fairness rights
o 2. Holding an office at pleasure – gov‟t can dismiss an employee
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
- the distinction of “at pleasure” v. not “at pleasure” – should not be so baldly
- 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 <
- 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
- 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
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
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
 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
 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
- 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
- Extension of Cooper (right to procedural fairness) to broader range of cases
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
- 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
- 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
- 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
- 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
- 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
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.
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
o The group was unsuccessful
o The group appealed to Cabinet
o Cabinet dismissed the appeal
- 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
- 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
- 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
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
- 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
- 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
- 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
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
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
- Either way – muni would be able to impose conditions
- Homex applied to quash by-law and succeeded – Appeal by muni succeeded
- Principle before a public body can abrogate the property rights of citizens must give hearing
- 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
- 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
- Notice and opportunity to be heard
- 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
- 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
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)  - 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
- Classifying as “legislative” or “policy” not helpful –
need to assess the effects
- Effect was to visit considerable economic loss to
- 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
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
- What applicant is seeking is a public consultation
process – not contemplated by statute
Idziak v. Canada - Minister of justice had obligation - Extreme legislative end of administrative
(Minister of of procedural fairness in deciding decision making
Justice),  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
- No requirement to compel her to share those
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
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
Decisions Affecting Rights, Privileges, or Interests
RE WEBB AND ONTARIO
1978 ON CA
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
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
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
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
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
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
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
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
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.
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.
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
o Relied on narrower grounds than lower court
o There was a legitimate expectation of a hearing because of the right involved
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
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
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.
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
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.
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
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)
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
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
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
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
had therefore created an impression that the board was operating under a system of
Therefore, a legitimate expectation was created.
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
MOUNT SINAI HOSPITAL V.
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
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,
encouraging the move to Montreal, and continuing to fund the short-term beds.
This looks like an estoppel argument
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.
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
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.
Therefore, believes that rules of natural justice apply to the case at hand.
Therefore, the ARB should disclose at least some of the contents of the patients‟
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.
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 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
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
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
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
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
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
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
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”.
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
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
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
CHIARELLI V. CANADA
(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
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
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
C was also permitted to respond by calling his own witnesses or by cross examining
witnesses (but he chose not to exercise these options)
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 The courts began to increase what was protected
WILSON V. BC MEDICAL
1988 BC CA
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
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.
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
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
BLENCOE V. BC HUMAN RIGHTS
B (a minister in the BC government) was accused by one of his assistants of sexual
A month later, the premier removed B from cabinet and dismissed him from the HDP
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
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.
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
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
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.
Leaves the door open for s. 7 protection where one is suffering from serious state imposed
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
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
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
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
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
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.
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
Reasons were required here given the importance of the decision to those
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
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
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
o More often, the case is that judicial review is limited to certain grounds (jurisdiction and patent
o Suggests that the court should be deferential to the decision maker
THE CHOICE OF PROCEDURE
SURESH V. CANADA (MINISTER
OF CITIZENSHIP & IMMIGRATION)
Appellant was a convention refugee from Sri Lanka who applied for landed immigrant
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
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
legislation is however constitutional.
The Charter does not require the Minister to conduct a full oral hearing or judicial
However, a refugee facing deportation to torture must be informed of the case to be
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
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.
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
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
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
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.)
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
- 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
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).
(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
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
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
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
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
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
Khan, a law student, failed her evidence exam
She claimed that she had been marked on 3 booklets and the 4 had gone missing
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
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
Decision Appeal allowed.
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
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
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
(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
(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.
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
NB (MINISTER OF HEALTH AND
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
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
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-
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
RE MEN’S CLOTHING
1979 ON DC
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
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
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
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
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
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
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
Concluded that the duty to act fairly implies the presence of counsel when a
combination or all of the following elements are present:
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
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
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
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
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.
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
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
- 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
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 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
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.
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.
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
Decision Appeal of government allowed.
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.
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.
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
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.
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
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
EVIDENCE AND CROSS-EXAMINATION
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
(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
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.
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
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
When will a tribunal limit cross examination?
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)
INNISFIL (TOWNSHIP) V.
Issue was whether the opposing municipalities were entitled to cross-examine the
official of the ministry who had presented a letter
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
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
To limit risk or error by tribunal – reasons should show that the tribunal addressed itself to the
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
Ensures that one can check if the law was interpreted correctly and the right tests were
o Disadvantages of giving reasons
Delay decision making
Unjustifiable burden on tribunal
Waste in allowing challenges on purely formalistic grounds
VIA RAIL CANADA V. NATIONAL
2001 Fed CA
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).
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
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.
It did not indicate the factors deemed to be relevant by the NTA, nor its reasoning
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
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
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.
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
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
There was no certainty that Olsen would sell additional cables to OH
A contingent expectation of pecuniary gain does not constitute a direct pecuniary
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
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).
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
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
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.
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.
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
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
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
Contrast the Brosseau decision with Manning:
EA MANNING LTD. V. ONTARIO
1994 ON CA
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
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
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
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
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
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
o Bias of this type often leads to other procedural fairness issues.
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
However, procedural fairness requires an absence of bias which requires a certain amount of
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.
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
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
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
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.
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.
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.
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
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
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
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'
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
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.
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
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
o Reasons we would not want to allow delegation
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
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
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.
One must consider the nature of the duty and the character of the person
The disciplinary powers here cannot be delegated
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.
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
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
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.
LOCAL GOVERNMENT BOARD V.
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
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
Jeffs v. New Zealand  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
This case deals with the question of consultation.
OF AMERICA V. CONSOLIDATED- 1990 SCC
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
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.
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.
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
o Parties should be given an opportunity to address any new issues that come up during
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.
TREMBLAY V. QB (COMMISSION
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
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
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
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
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
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.
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
Decision Ruling in favour of OLRB
Focuses on the benefits of consultation
Disallowing consultation would reduce consistency
Reasons However, the court recognizes that deliberative secrecy reduces the transparency of
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.
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.
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
The recommendation was considered by the Commission at 3 meetings (where individual isn‟t
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.
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.
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.
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
o Held that HR Commission was simply seeking advice and that this advice was subject to
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
His license to practise medicine was revoked
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.
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.
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.
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.
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.
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)
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
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
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
Decision Appeal of CUPE allowed.
The board acquires its jurisdiction to consider a complaint of violation of the Act under s.
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
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
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
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
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
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.
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
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.
UNITED BROTHERHOOD OF
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
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
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
The order was not patently unreasonable and was a rationally supportable
interpretation of its remedial provisions
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
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
The issues in this case were clearly within the jurisdiction and expertise of the
The Commission‟s findings were supported by the evidence and should not be
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
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
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.
Southam‟s appeal with respect to remedy dismissed.
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
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
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
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
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
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)
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
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.
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
o The Minister had alternate recourse to deal with those posing a threat to
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
d) The New Battleground – Nature of the Question
TRINITY WESTERN UNIVERSITY
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
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
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
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
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
However, there was nothing in Trinity's Community Standards to indicate that
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
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
CANADA (DEPUTY MINISTER OF
NATIONAL REVENUE) V. 2001 SCC
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
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
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
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
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.
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
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.
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
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)
b) Questions of Mixed Fact and Law
ZURICH INSURANCE V. ONTARIO
(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.
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.
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
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
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
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
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
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.
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 Members and the particulars of their appointment
Length of appointment
Frequency of participation
o Support of expert staff
o Policy making involved?
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
o There are three standards of review which may be applied in the pragmatic and functional test:
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
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
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
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?
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.
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
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
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
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
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
RE SHEEHAN & CRIMINAL ON DC &
INJURIES COMPENSATION BOARD ON CA
Application for judicial review of a decision made by the CICB to refuse Sheehan‟s
Sheehan was assaulted and injured by a fellow prisoner at Kingston Penitentiary (a
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.
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
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
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
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
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
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
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.
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
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.
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
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
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.
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.
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
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 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.
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
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.
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
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
b) Discretion and the Charter: Unreasonableness Revisited
SLAIGHT COMMUNICATIONS INC.
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
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
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.
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
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
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
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
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
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
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.
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
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
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'
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.
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.
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
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.
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
Nova Scotia v. Martin, Nova Scotia v. Laseur – 20032scr504
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
There may be an explicit legislative withdrawal of the right of a tribunal to undertake
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
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.
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
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
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
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.
FINLAY V. CANADA
(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
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
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
or operative effect of legislation, should be extended to a non-constitutional challenge
by an action for a declaration to the statutory authority for public expenditure or other
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
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
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
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 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
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
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.
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
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
Further, Vriend has a genuine and valid interest in all of the provisions he seeks to
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.
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.
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
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
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
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
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
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
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).
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.
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
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
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
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
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
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
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
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.
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