admin_promislow_f06_4 by nuhman10

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Introduction

The Role of Judicial Review
   Judicial review is a means of ensuring that the administrative process operates within the
    constraints of the principles of legality.

    a) Separation of powers
   While the separation of powers is not set out explicitly in the constitution, it is well
    established in order to prevent the concentration of power.
   As per Dickson C.J., Fraser v. Canada, [1985] 2 S.C.R. 455: We have:
       Legislatures – to decide on policy
       Executive – to interpret and administer that policy
       Court – to interpret and apply the law
   Where do admin tribunals fit in? Ocean Port – administrative tribunals “span the
    constitutional divide between the judiciary and the executive” but are ultimately part of the
    executive, under the mandate of the legislature (at para. 32).

    b) Tensions introduced by judicial review
   Potential to undermine parliamentary supremacy E.g. In Vriend the court “read in” protection
    in AB human right legislation. They said they weren‟t undermining parliamentary supremacy
    b/c we are all bound by the constitution.
   Administrative agencies encroach on judicial turf while lacking the independent structure of
    courts. There are problems of democratic legitimacy, accountability (at least on a formalist
    model)

    c) Competing visions of the rule of law and corresponding notions of judicial review

Rule of law – Diceyan/Formalist model
 There is one law for all (every branch of government subject to the laws of Canada)
 Law is restraint (courts are the enforcers of this restraint)
 Therefore, the role of judicial review in the formalist model:
    o Courts police the boundaries of statutory grants of power.
    o Courts do not owe deference to Admin decision-makers on questions of law.
    o Courts do not inquire into substance of admin decisions.
 Hostile to administrative discretion and the legitimacy of the administrative state.
 Judicial review as the policing of the separation of powers, application of the rule of law to
restrain each branch of government to its proper “constitutional” function.
 While this seems nice and neat, application is more difficult. If the court doesn‟t like a
    decision, they may just frame it as an unlawful exercise of authority.

Rule of law as promotion and protection of “fundamental values”:
 A less rigid separation of powers – all branches have a role in upholding the rule of law
 Law/Politics dichotomy (and other dichotomies) not strictly drawn –“fundamental legal
   values condition the exercise of political power.”
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   Courts don‟t have monopoly on the interpretation of law – shared with legislatures,
    administrative agencies, citizens (although courts still have the final word, at least
    provisionally).

Adopted from David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in Administrative Law”
(2001-2002) 27 Queen‟s L. J. 445

Rule of law in a “culture of justification”:
 The exercise of public power must be justified to citizens:
          “Where a society is marked by a culture of justification, an exercise of public power is only appropriate
where it can be justified to citizens in terms of rationality and fairness. Arbitrary decisions and rules are seen as
illegitimate. Rule by fiat is unaccepted. But these standards do not just stand as abstract rules. Indeed, most
importantly, the ability to call for such a justification as a precondition to the legitimate exercise of public power is
regarded by citizens as their right, a right which only illegitimate institutions and laws venture to infringe. The
prevalence of such a cultural expectation is, in my view, the definitive marker of a mature Rule of Law.”

Justice McLachlin, "The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law" (1998-99)
   12 Canadian Journal of Administrative Law and Practice 171 at 174.

Role of judicial review – “post-formalist” models:
 Deference is owed in all aspects of judicial review
 Substance of decisions is open to review to ensure protection of fundamental values; scope is
   limited by proper „justification‟
 Policing the boundaries of statutory grants of authority, but with purposive interpretation.

 Judicial review as ensuring consistency in fundamental democratic principles between all
branches of government.

Baker and the new paradigm for review

                                                  Judicial Review
                    Procedural Grounds                                       Substantive Grounds
                    Is there a duty of fairness?                             What standard of review applies?

                    If so, was there a violation of                          Under what circumstances was the
                    procedural fairness on the basis of:                     decision improper on grounds of?
                        • procedures followed?                               Exercise of discretion
                        • legitimate expectations?
                        • bias?


Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (Can.)
Facts: Mavis Baker is a Jamaican citizen who entered Canada as a visitor in 1981 and has
remained in Canada since. She worked illegally as a domestic for 11 years. She had four children
(who are all Canadian citizens). She suffered from post partum psychosis and was diagnosed with
paranoid schizophrenia. She was ordered deported in 1992. She applied for an exception pursuant
to s.114(2) of the Immigration Act. Along with the application she included documents from her
psychologist that said she still has psychological problems but was making progress and to deport
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her would be very detrimental as there would be no treatment available in Jamaica. There was
also documentation demonstrating that this would be an emotional hardship for her and her
children. In 1994 Immigration found insufficient humanitarian or compassionate grounds and
ordered her deported. No reasons were provided for the decision, although later she obtained the
officer‟s notes which emphasized that she had four children and would be a drain on the system
and that the system had failed because she was still in Canada. Little mention was made of her
children.
Issues:
Procedural
- Was the Convention a source of legitimate expectations that gave rise to particular procedural
    rights?
- Were the participatory rights of the applicant (and others) met?
- Was there a duty to give reasons?
- Did the decision-maker‟s notes give rise to a reasonable apprehension of bias?
Substantive
- Was the discretion of the decision-maker exercised improperly with respect to the
    consideration of the best interests of the children? Does the Convention have any bearing on
    the exercise of administrative discretion in the domestic setting?
History: FC – no reasons required, absence of evidence of bad faith. Certified question: Does the
Immigration Act expressly incorporate the language of Canada‟s international obligations such
that immigration authorities must treat the BIC as a primary consideration? CA limited itself to
certified question – treaty has no effect unless implement in domestic legislation.
Reasons: (L‟H-D)
- Because the court certified question, this allows for an appeal of the judgment of the trial
    division BUT does not confine the CA of this court to the stated question.
Procedural Fairness
- 5 factor analysis of the content of the duty of fairness:
        1. The nature of the decision being made and the process followed in making it.
        2. The nature of the statutory scheme and the “terms of the statute pursuant to which the
            body operates”.
        3. The importance of the decision to the individual or individuals affected.
        4. The legitimate expectations of the person challenging the decision.
        5. The agency‟s own choice of procedure
- LEGITIMATE EXPECTATIONS: The international treatise did not give rise to legitimate
    expectations on the part of Ms. Baker  fourth factors does not affect analysis.
- PARTICIPATORY RIGHTS: The failure to accord an oral hearing and give notice to her
    children was not detrimental because (1) the type of decisions made wrt humanitarian and
    compassionate decisions are discretionary and flexible as per statue (2) children did have an
    opportunity to express themselves in docs.
- PROVISION OF REASONS: The SCC recognized that in certain cases the duty of fairness
    may include a requirement of written reasons but this was fulfilled when Ms. Baker was
    given the officers notes. L‟H-D justifies the common law requirement to give reasons 
    pushes the rule of law down to admin agencies to justify their decisions.
- REASONABLE APPREHENSION OF BIAS: The test was set out in Committee for Justice
    and Liberty v. National Energy Board (1978): “...the apprehension of bias must be a
    reasonable one, held by reasonable and right minded persons, applying themselves to the
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   question and obtaining thereon the required information... [T]hat test is “what would an
   informed person, viewing the matter realistically and practically -- and having thought the
   matter through -- conclude. Would he think that it is more likely than not that [the decision-
   maker], whether consciously or unconsciously, would not decide fairly.”
- May vary depending on context however in this case, a reasonable member of society would
   find the officer‟s comments biased.
Review of Ministerial Discretion
-   “[The doctrines dictating a limited scope of review with respect to discretionary decisions] recognize that
    it is the intention of a legislature, when using statutory language that confers broad choices on
    administrative agencies, that courts should not lightly interfere with such decisions, and should give
    considerable respect to decision-makers when reviewing the manner in which discretion was exercised”
    (para. 53).
-   “It is, however, inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary”
    decisions” (para. 54).
-   Although discretion should make court more reluctant to interfere with a decision,
    “Discretion must be exercised in accordance with boundaries imposed in statute, principles
    of rule of law, principles of administrative law, fundamental values of Canadian society, and
    principles of Canadian Charter of Rights and Freedoms.”  opens the door for review of
    fundamental values
- According to Pushpanathan we must consider:
        o The presence or absence of a privitive clause
        o Expertise of the decision maker – since it is the Minister, this suggests deference
        o Purpose of the provision and the Act as a whole – greater deference needed where
            considerable choice is given
        o The nature of the problem in question – highly discretionary requires deference
- L‟H-D concludes that the decision of immigration officers require a great deal of deference
    AND that the appropriate standard of review is reasonableness simplciter.
- Was the decision reasonable? The failure to taken into account the children‟s interests
    suggests it was not and therefore the decision reached was an unreasonable exercise of the
    power conferred by the legislation. (engages international treaty through reasonableness
    analysis)
Conclusion: BOTH because there was a violation of the principles of procedural fairness owing
to a reasonable apprehension of bias AND because the exercise of discretion was unreasonable,
the appeal is allowed.
Dissent: (Iacobucci)
- Agrees with conclusion but feels that international treaties cannot be part of domestic law and
    therefore the certified question should be answered in the negative. “In my view, one should
    proceed with caution in deciding matters of this nature, lest we adversely affect the balance
    maintained by our Parliamentary tradition, or inadvertently grant the executive the power to
    bind citizens without the necessity of involving the legislative branch.”

Procedural Fairness A: The Duty of Fairness

What is Procedural Fairness?
                                        Procedural Fairness is….
                                          Audi Alteram Partem
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                                                (To hear/listen to the other side)
                                                Hearing or Participatory Rights
                                                      (before, during, after)
                                                                +
                                                   Nemo Judex in causa sua
                                         (No one should be a judge in his/her own cause)
                                              Right to an impartial decision-maker

         Source of the Duty of Fairness
              Common law, constitutional or statutory
              Legislative silence can ground the duty of fairness in 3 ways:
                      o The legislature was forgetful
                      o The legislature spoke indirectly – the legislature knew their silence would engage
                          the CL
                      o Common law constitutionalism/common law bill of rights – there is a right to PF
                          unless the legislature explicitly says otherwise

         Development of the Doctrine
         Historical Overview
          In Dr. Bentley‟s Case (1723) Fortescue is quoted as saying “not even God failed to provide
            Adam and Eve with a hearing before casting them out of the Garden of Eden.”
          In R v. Electricity Commissioners (1924), Lord Hewart adopted a formula for the
            applicability of the rules of natural justice: It was necessary that the respondent have “legal
 Pre-       authority to determine the rights of subjects” as well as the “superadded” characteristic of “a
 Nicholson duty to act judicially”.  i.e. Classificatory Approach – “judicial”/“quasi-judicial”
 test           o The first part of this formula was interpreted as precluding the possible application of
                    the rules of natural justice in situations where the respondent was not acting in a final
                    and determinative manner.
                o The second part was interpreted by some as requiring a return to looking at the statue
                    and determining if the legislature intended there to be a hearing available.
          Calgary Power v. Copithorne (1959), the SCC embraced the Hewart formula. Man not
            entitled to a hearing before the Minister expropriates his land for power transmission.
          The functional analysis of Cooper first broke through in Ridge v. Baldwin (1964) in England
            which did away with Lord Hewart and classificatory reasoning.
          In R. v. Gaming Board for Great Britain, (1970) Lord Denning said “At one tome it was said
            that the principles of natural justice only apply to judicial proceedings and not to
            administrative proceedings. That heresy was scotched in Ridge v. Baldwin.”
The Classificatory Approach – Drawing a line                          The “functional” approach –
                                                                      characterizing the nature of the decision on a spectrum
                                               Natural Justice Runs


       Legislature:
    political decision-                             Courts:
          making                               judicial decision-
                 Executive:                         making                              Duty of Fairness            
             political decision-
                   making

                       Administrative Agencies:
             administrative=
             political dm                quasi-judicial               Judicial                      Administrative           Legislative
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Classifying Judicial vs. Administrative
Judicial:                                                     Administrative:
“determination of „pre-existing‟ rights and liabilities       “creation of rights and liabilities through
   through the application of a „fixed objective standard‟Expanded procedural protection p. 101)
                                                              „policy and expediency‟” (text,
   (text, p. 101)                                             considerations of public policy guiding the
a dispute as between two parties (lis inter partes)           decision; decisions for the greater public
   (adversarial)                                              good –
requirement to proceed „judicially‟ (statue indicates
   hearing rights)

Developing the Functional Approach

                      Summary of the evolution of the duty of fairness
 Nicholson (1979)
  establishes general duty of fairness with respect to administrative decision-making
  maintains judicial/administrative distinction
  natural justice (NJ) flows with respect to judicial decision, fairness (PF) with respect to
    administrative ones.

 Martineau (1980)
  applies the general duty of fairness
  maintains judicial/administrative distinction
  Minority (Dickson) pushes for spectrum approach, no conceptual distinction btwn PF and
   NJ

 Cardinal (1985) (via Inuit Tapirisat)
  applies the general duty of fairness
  provides consolidated statement of the scope of the duty:
           o new threshold classification: legislative vs. administrative
           o applies to decisions affecting “rights, privileges or interests of an individual”
  does not deal with distinction between natural justice/duty of fairness

 Knight (1990)
  establishes three part threshold test for applicability of the duty of fairness
  does away with the distinction between NJ and PF (or at least tries to); confirms legislative
    limit of the duty.


Cooper v. Board of Works for Wandsworth District, (1863E) – functional approach
 Provides for a hearing based on common law presumption regarding property rights “No man
   should be deprived of his property without his having an opportunity of being heard” read
   into statute pushes the reach of “natural justice”
 Demonstrates beginnings of the functional approach - reading in of hearing rights is not
   strictly based on the impugned decision being characterized as (quasi-)judicial.
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Facts: By statue, anyone building a new house was required to give 7 days notice to the Board
before construction. Cooper built a house and the Board tore it down without notice. He claimed
he filed notice and began building on the 5th day. The Board claims they received no notice.
Cooper began an action for trespass and damages. (Did not apply for judicial review)
Conclusion: Cooper entitled to notice.

Notes: The existence of a statutory right of appeal was seen as an indicator of the need for a
hearing at first instance by one judge.

Nicholson v. Haldimand-Norfolk Police Commissioners, (1979), (SCC) – recognizes general
duty of fairness
 There is a general duty of fairness
 Natural justice and this general duty of fairness are not the same

Facts: The Police Act specifies that no constable can be removed from his position w/out a
hearing providing he has served more than 18 months. Nicholson was a constable for 15 months
and was discharged without the opportunity to make submissions.
History: The OCA said the Board could dismiss N without opportunity for submissions b/c (1) it
was their common law right, (2) since explicit protection was provided for more than 18 months
service, the legislature must have intended it not be available for less (expressio unis).
Issue: Did N having hearing rights before he was dismissed? How do we get there?
Conclusion: N has hearing rights as a matter of fairness. Fairness is distinct from natural rights.
Analysis:
Laskin
- CA erred in applying expressio unis and in considering N‟s position as held at pleasure when
    it was more statutory.
- Although N cannot claim the protection afforded to a constable who has served more than 18
    months, he cannot be denied any protection. He should be treated “fairly” and not arbitrarily.
- “In the sphere of the so-called quasi-judicial, the rules of natural justice run, and that in the
    administrative or executive field there is a general duty of fairness.” (Bates)
- This duty of fairness involves “something less than the procedural protection of traditional
    natural justice.”
- N should have been told why his services were no longer needed and given the opportunity,
    whether oral or written, to respond.
Dissent: (Martland) The very purpose of the probationary period was to enable the Board to
decide whether it wished N to continue his services. It was under no duty to explain why his
services were no longer required.

Martineau v. Matsqui Inmate Disciplinary Board (1980),
Dickson (minority):
 Tries to broaden the scope of judicial review. He would like to do away with the
   admin/judicial distinction but can‟t b/c it is set out in the Federal Court Act. (amended in ‟92)
 There is no need to draw an admin/judicial distinction b/c “between the judicial decisions and
   those which are discretionary and policy-oriented will be found a myriad decision-making
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    processes with a flexible gradation of procedural fairness through the administrative
    spectrum.”  moving towards the functional approach
   It doesn‟t matter who is making the decision, it is the function of the decision that matter.

Facts: Couple of inmates disciplines by Board. They sought to have the decision quashed
(certiorari) on the grounds that they were not treated fairly – had no hearing, not represented by
lawyers. They applied for judicial review. (Courts usually stay out of prisoner issues)
Issue: Did the trial court have jurisdiction to grant certiorari? Yes. Same as asking: Is there a
general duty of fairness?
Decision: The SCC finds in favour of the inmates.

Cardinal, (1985) SCC
 Le Dain acknowledges the general duty of fairness: “This Court has affirmed that there is, as
   a general common law principle, a duty of procedural fairness lying on every public
   authority making an administrative decision which is not of a legislative nature and which
   affects the rights, privileges or interests of an individual.”
 This duty exists and must be respected regardless if the outcome would have been the same if
   the procedure had been fair. The content of the duty may vary but not what is considered a
   breach.

Facts: Warden gave oral instructions to have inmates transferred to segregation pursuant to his
authority to do what is necessary for the good of the institution. Inmates come up for review and
the board recommends they be allowed back in the general prisoner population. The Director
exercises his discretion and does not follow the recommendation. He felt that the pending
criminal charges would introduce unsettle to the general population. Inmates aren‟t given the
reason or allowed to speak regarding this decision.
Issue: Did the director owe a duty of fairness to the inmates in not accepting the board‟s
recommendation?
Conclusion: A duty of fairness was owed and it was breached.

Knight v. Indian Head School Division No. 19, (1990) SCC – test for duty of fairness
 Test for the duty of fairness
 Majority (L‟h-D) – statutes and contracts written against a backdrop of common law fairness
   principles; must be excluded explicitly or by necessary implication.
 Minority (Sopinka) – fairness duties may be “read in” where consistent with express terms of
   the statute (or contract) or by necessary implication.

Facts: The Board dismissed the education director, Knight, when he refused to sign a contract of
a shorter term. Knight brought an action for wrongful dismissal. The SCC said the Board did not
need to show cause for dismissal either under the contract of employment or under The
Education Act. Knight further argued he was entitled to procedural fairness.
Issue: Is procedural fairness due an officerholder at pleasure?
Conclusion: The Board does have a duty of fairness and this duty has been met.
Analysis: (L‟H-D)
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-  The duty to act fairly does not depend on the doctrines of employment law, but stems from
   the fact that the employer is a public body whose powers are derived from statue, powers that
   must be exercised according to the rules of administrative law.
- Whether there is general duty to act fairly on the part of public decision-making body
   depends on:
        1. The nature of the decision to be made by the administrative body
            - No duty if decision is legislative (or general) in nature.
            - No duty if the decision is preliminary.
            - Does away with admin/judicial and applies spectrum approach
        2. The relationship existing between that body and the individual – is the matter of
            public concern?
            - “[T]he public has an interest in the proper use of delegated power by
                administrative bodies.” (text, p. 120).
        3. The effect of that decision on the individual’s rights
            - “There is a right to procedural fairness only if the decision is a significant one and
                has an important impact on the individual.” (text, p. 121)
- Employment relationship were categorized into 3 categories in Ridge v. Baldwin (1964E):
          1. The master servant relationship
          2. The office held at pleasure
          3. The office from which one cannot be removed but for cause
- Although only (3) was recognized as owing a duty of fairness in Ridge, this is wrong. In
   Nicholson, Laskin writes: “I would observe here that the old common law rule, deriving much
   of its force from Crown law, that a person engaged as an office holder at pleasure may be put
   out without reason or prior notice ought itself to be re-examined.” Therefore, (2) and (3)
   require fairness and doesn‟t matter where K falls.
- Neither the legislation nor the employment contract modifies the (Kane).
- Re: content – Notice of the reasons for the Board‟s dissatisfaction and the opportunity to be
   hear would be sufficient to meet these requirements. The Board had made itself available for
   discussion through meetings with Knight and this is sufficient to meet their duty.
Dissent: (Sopinka)
-  The correct approach requires examination of the statue, regulations and contract to determine
   whether Knight has brought himself within the exception to the general rule that an office
   terminable at pleasure does not attract the duty of fairness. i.e. the duty of fairness must be
   found within the four corners of the statute.

Scope of the Duty of Fairness
Legislative processes by legislative bodies
 Decisions of a legislative or general nature are excluded for procedural fairness requirements
   (Knight and previously Bates (1972)).
 BUT what counts as a “general” nature or a “legislative function”?

Cabinet and Cabinet Appeals

Canada v. Inuit Tapirisat of Canada, (1980), SCC
 The duty of fairness does not apply to legislative decisions
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   Where the decision is directed at a specific individual and is based on factors peculiar to that
    individual, the function in issue will not be classified as legislative despite the political nature
    of the decision maker. The more general and more discretion, the more legislative.

Facts: The CRTC has power to regulate rates of utilities, including Bell. The National
Transportation Act provides that: the Governor in Council may at any time in his discretion, with
on petition or of his own accord, vary or rescind and order. An appeal lies to the Federal Court of
Appeal. Bell applied for a rate increase. The Inuit Tapirisat intervened and wanted the CRTC to
require Bell to provide better service to Northern communities. Bell made a submission directly
to Cabinet. The CRTC made a submission through the Department of Communications. The Inuit
Tapirisat was not provided with this information. The Minister of Communications recommended
the appeal be dismissed and it was accepted. The Inuit Tapirisat applied to the Federal Court for a
declaration that a hearing should have been given or if one had been given that it did not comply
with the principles of natural justice.
History: The government applied for an order dismissing the action for not stating a reasonable
cause of action. The trial division granted this motion. This was successfully appealed by the
Inuit Tapirisat. Appealed by the government to the SCC.
Issue: Does Cabinet have a duty of fairness? Do the principles of natural justice apply?
Decision: SCC unanimous on that Cabinet/legislative decisions not subject to the duty of PF.
Analysis:
- While after Nicholson and Martineau the existence of a duty no longer depends on classifying
    the power as judicial or administrative, it is still necessary to examine closely the statutory
    provision in question in order to discern whether it makes the decision maker subject to any
    rules of procedural fairness.
- Given my interpretation of the statue, there is no need for the Governor in Council to give
    reasons for his decision, to hold any kind of hearing or even acknowledge the receipt of a
    petition.
- In Bates, Megarry stated: “Let me accept that in the sphere of so-called quasi-judicial the
    rules of natural justice run, and that in the administrative field there is a general duty of
    fairness. Nevertheless, these consideration do not seem to me to affect the process of
    legislation, whether primary or delegated.”
- “…Where, however, the executive branch has been assigned a function performable in the
    past by the Legislature itself and where the res or subject matter is not an individual concern
    or a right unique to the petitioner or appellant, different considerations may be thought to
    arise.”
- The orders in the case at bar were legislative in nature. I adopt the reasoning of Megarry that
    no hearing is required.

Bylaws and Rulemaking

Homex Realty and Development v. Wyoming (Village), (1980) SCC
 It isn‟t who the decision maker is, but what it the decision. The decision here looks legislative
  but the targeted nature makes it quasi-judicial and the duty of fairness applies.
 Where the decision is directed at a specific individual and is based on factors peculiar to that
  individual, the function in issue will not be classified as legislative despite the political nature
  of the decision maker. The more general and more discretion, the more legislative.
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Facts: The municipality and Homex quarrelled about the obligation to install certain services.
Without notice, the municipality made a bylaw effectively deeming the plan unregistered and
preventing Homex from being able to convey the lots until they complied with the municipalities
position. Homex made an application to quash the bylaw and succeeded.
History: An appeal by the municipality succeeded. Homex appealed to the SCC.
Analysis:
- There is a long line of authority which establishes that before a public body can limit or
    abrogate the property rights of a citizen, it must first give the individual an opportunity to be
    heard. (Cooper)
- The courts will imply a right to be heard unless there is an express declaration to the contrary.
- While the CA found the function legislative and therefore no right of hearing could apply, I
    disagree:
    o The right to a hearing does not exist because there are competing groups or individuals
        opposed to a bylaw. It results from the fact that the bylaw interferes with a particular
        private property right of one owner.
    o The presence of a compelling public interest does not abrogate the citizen‟s right to
        procedural protection. “One cannot label an act legislative for the purpose of dispensing
        with fairness”.
    o The idea that a hearing only exists where a process is judicial or quasi-judicial was
        rejected in Ridge, Nicholson and Martineau.
    o A purely ministerial decision made on grounds of public policy will typically afford little
        procedural protection, whereas a function approaching judicial will entail substantial
        procedural safeguards.
    o The bylaw here is not of general application but aimed deliberately at limiting the rights
        of an individual – at a minimum the municipality was under a duty to give Homex notice
        of the proposed by-law and an opportunity to be heard.
Conclusion: The decision was not in substance legislative but rather quasi-judicial and affected
the rights of an individual. Therefore, the individual was entitled to notice and to be heard.


Delegated Policy Making
 Where the impact of the decision being made is diffuse affecting a broad spectrum of the
   public in a generally undifferentiated manner, claims to participatory rights will be hard to
   justify.

Bezaire v. Windsor Roman Catholic School Board, (1992)
 Legislative intent was to create procedural protections
 PF is a free standing right – regardless if decision would have been the same w/ PF
Facts: Board closed school for financial reasons without community input. The minister had
issued a procedural policy for school closings and the board also had a policy. Neither was
followed. Parents brought application for judicial review seeking to have decision quashed.
Analysis:
- The court interprets the provisions of the Education Act and determines it was the intent of
    the legislature to create procedural protection for school closings.
- It doesn‟t matter if the school would have closed anyway – PF is a free standing right.
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Conclusion: Community/parents denied procedural fairness – this was not cured by consultations
after the decision was made.

Canadian Association of Regulated Importers v. Canada, (1993) FC
Facts: Ministerial decision to change quota distribution significantly affected historic importers.
Historic importers claim they were not consulted.
Issue: Was this decision sufficiently legislative such that no duty of fairness is involved?
FC:
- The decision made affects only very small segment of the population  admin not legislative
- Classifying the decision as legislative or as a policy decision is not helpful. What is important
    is an assessment of the effects which actually follow from the decision. – While the decision
    seemed general, it was only general to a small segment of the population.
- It was possible for notice of decision to be given e.g. by newspaper.
FC Conclusion: There was a duty of PF and it was not met.
FCA:
- There is a difference b/w making policy and applying policy.
- Decision was essentially legislative. Looking at the statue, there was no duty imposed.
FCA conclusion: There is no duty of PF.


                            Specific vs. General (+discretion)

 Inuit Tapirisat
 Specific - Inuit interest in improving northern telephone service
 General – Rates affecting all Bell subscribers (court)
 Discretion of DM – lots, unrestrained by procedure
  No PF owed
                                                                                       Homex
                               Specific – Loss of value of Homex‟s lots in subdivision (court)
                                     General – who carries costs of muni. services installation
                                                             Discretion of DM – not discussed
                                                                                   PF owed

 Bezaire
 Specific – Impact of school closing on particular families
 General – # of schools in the district given financial constraints (court)
 Discretion of DM – restrained by procedure
  PF owed
                                                            Cdn Assoc. of Regulated Importers
                  Specific – loss of import quota (comp. advantage) by historic quota-holders
                              General – import privileges of all chick & egg producers (court)
                                                  Discretion of DM – unrestrained by procedure
                                                                                No PF owed


Other Limits

1. Rights interests and privileges
 Distinction b/w granting a benefit/privilege and taking it away and its impact on procedural
   rights:
                                                                                                    13


       Re Webb – draws this line, makes application of the duty dependent on it
       Hutfield – says this line can‟t hold up to a principled examination

   Scope of the duty of fairness is no longer limited by such a distinction. If the distinction
    remains relevant, it is in relation to the content of the duty (nature of decision, impact of
    decision on individual)

Re Webb and Ontario Housing Corporation, (1978) OCCA
 No duty of PF in granting privilege but there is wrt taking it away
Facts: OHC owned high-rise managed by Meridian. Webb and children lived there based on
Welfare qualifications. She was warned of termination of her lease due to disruptive behaviour of
her children. OHC approved termination of lease.
Issue: Is there a duty of fairness extending to the privilege of subsidized housing and if so, what
odes this duty involve?
Analysis:
- The OHC is not given power or obligation under governing legislation to act judicially. The
    Board of the OHC was not a tribunal exercising statutory power and accordingly the decision
    does not fall under the Statutory Powers Procedure Act, 1971 which requires procedural
    fairness.
- Was the OHC still required to act fairly? Once Webb became tenant she acquired a
    substantial benefit. The OHC exercising their power deprived her of this benefit, and
    therefore, was required to treat her fairly.
- The duty is met if the person is advised of the case against him and permitted to give answer.
Conclusion: The OHC complied with there duty to treat Webb fairly. They let her know of the
complaints and gave her an opportunity to answer them.

Hutfield v. Board of Fort SK General Hospital, (1986)
 There should be no distinction b/w granting or taking away a privilege – must look to content
Facts: Hutfield applied to hospital board for practice privileges. As per the Hospital Act, the
board sent the application for consideration to College of Physicians and Surgeons. The College
gave a favourable response but Hutfield was denied w/out reason. He asked to appear before the
board but was denied. He applied again and was denied w/out the application being sent to the
College. He sought certiorari and mandamus.
Issue: Is there a duty of fairness?
Analysis:
- I think there should be no distinction between the procedural fairness accorded in the case of
    modifying rights and in application for permission.
Conclusion: The Board should have given H reason for the decision.

2. Non-dispositive decision
 Can non-final decision, investigations or recommendations, have a duty of fairness?
 Part of considering the „nature of the decision‟ is considering the finality of the decision: “[A]
   decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a
   decision of a more final nature may have that effect.” (Knight)

Re Abel and Advisory Review Board, (1979)
                                                                                                14


Facts: Advisory review board created under the Mental Health Act to review those confined to
psychiatric institution following a criminal finding of not guilty by reason of insanity. The board
made a report about each patient to the lieutenant governor. The Act also provided for a hearing.
The lawyers preparing for the hearing wanted access to the reports of the institution regarding the
patients esp. those submitted to the board.
Issue: Is the board, which makes only recommendations that do not bind the Lieutenant
Governor, subject to a duty of fairness?
Analysis:
- The degree of proximity between the investigation and the decision and the exposure of the
    person investigated to harm are matters of paramount concern. i.e. the board has the power to
    recommend that a person remain in an institution for life- serious consequences
- The board should have at least considered the request for the reports.
Conclusion: Notwithstanding the non-binding nature of its report, there board owes a duty of
fairness.

Should the duty of fairness apply to legislative decisions?

Yes – we should extend the duty b/c:
- This limit is necessary to the preservation of the integrity of legislative process under formal
  model of separation of powers.
- Maintaining formal separation of powers critical to democratic legitimacy.
- Classification doesn‟t work; institutions are not amenable to formal definitions.
- Classification is a source of injustice: “To endow some with procedural protection while
  denying others any at all would work injustice when the results of statutory decisions raise the
  same serious consequences for those adversely affected, regardless of the classification of the
  function in question.” (Laskin in Nicholson, text p. 110)
- Democracy better served by contextual approach, i.e. Did the decision-maker act fairly in the
  circumstance?

Wrong question – we should abandon the admin/legislative threshold:
- “The presumption would be that, in the case of legislative silence, fairness applies to all
  decisions made by the administration, unless specifically modified by statute or contract, and
  then the remaining task is the determination of the specifics of procedure in any given case,
  from full procedural protection to „nothingness.‟… Dropping the threshold stage would
  ensure asking the real question: in the circumstances of the case and given, notably, the
  consequences of the decision for the individual, what is the appropriate set of procedures to
  be adopted?” (Genevieve Cartier)

Sources of Procedural Fairness
   Common law
    o Natural justice and the duty of fairness (Nicholson)
    o Legitimate Expectations (Baker)
   Constitutional
    o Charter, s. 7
    o quasi-constitutional (Bill of Rights, s. 2(e))
    o (international conventions/human rights norms)
                                                                                                   15


   Statute (particular, or SPPA)
   Contract

Legitimate Expectations (p.183)

   Not a significant argument in Canada
   There are 2 branches:
    o Situations in between application for a privilege and process to removal of a privilege;
        e.g. long-standing license holder has a „legitimate expectation‟ of renewal.
    o Expectations of procedural rights based on representations made by/conduct of public
        officials (post-1972, L. Denning in R. v. Liverpool Taxi).
   The archetypal situation in which the doctrine applies: an expectation of a hearing arising out
    of express representations, a practice of holding such hearings or a combination of both.
   What constitutes “conduct” giving rise to a LE?
    o Express promises and representations (e.g. Liverpool Taxi)
    o Regular practices (CUPE v. Ontario (MOL) CA but overturned at SCC based on facts)
    o Agency choices & “soft law”?? e.g. Bezaire (LE not argued); note 4, p. 189
    o Expressions of gov‟t policy by the executive such as international arguments?? (e.g.
        Baker, Suresh)
   A “stop-gap” where procedural protections not provided for in legislation, or through general
    duty of fairness (St. Boniface, Baker)
   May not be used to imply procedural rights into legislative processes (CAP – but what is
    legislative?)
   Gives rise only to procedural rights as opposed to substantive rights (St. Boniface, CAP,
    Baker, Mount Sinai)
        o Although drawing this line may be difficult (Mount Sinai)
   Although a distinct source of procedural rights (based on conduct of public officials), it is part
    of the analysis of the content of the duty of fairness (Baker).

Old St. Boniface Residents Association (1990, SCC)
Facts: Developer applying for rezoning. A community groups says they have a LE of being
consulted.
 Sets out the basic parameter of LE:
   o A “stop-gap” where procedural protections not provided for in legislation – where the
        legislature provides for a procedure, no need for common law LE
   o Based on conduct of public officials
   o Gives rise only to procedural rights (as opposed to substantive rights)

Baker
 LE is one of L‟H-D‟s 5 factors for determining the content of the duty of fairness: “Fourth,
   the legitimate expectations of the person challenging the decision may also determine what
   procedures the duty of fairness requires in given circumstances.…. As applied in Canada, if a
   legitimate expectation is found to exist, this will affect the content of the duty of fairness owed
   to the individual or individuals affected by the decision.”
 LE cannot create substantive rights.
                                                                                                16


   Is the International Convention a source of LE? No - “The Convention is not, in my view, the
    equivalent of a government representation about how H & C applications will be decided”.
    Only when incorporated into domestic law.

Reference re Canada Assistance Plan, (1991) SCC
 LEs cannot create substantive rights
 LE does not extend to legislative decisions
Facts: The CAP, a federal statue, authorized Fed Gov to enter contracts with Prov. for sharing
social assistance program costs. S.8 provided that this should continue so long as the Prov. law
continued to operate subject to termination on consent or with one year‟s notice. The Fed Gov
reduced support without notice.
Issue: Was the Fed Gov precluded from introducing a bill by virtue of the legitimate expectation
that amendments would only be made on consent?
Decision: Fed gov had the power to introduce the legislation – LE doesn‟t apply.
Analysis:
- If the doctrine of LE required consent, and not merely consultation, then it would be the
     source of substantive rights, in this case, a substantive right to veto proposed federal
     legislation.
- The formulation and introduction of a bill are part of the legislative process with which the
     courts should not interfere.
- POLICY: Parliament would be paralyzed if the doctrine of LE could be applied to prevent the
     gov from introducing legislation e.g. election campaign promises taken to create LE.
Note: Criticism of decision: “It does not follow from the fact that executive action is required to
initiate legislation that that kind of executive action is legislative. That a device is needed to
ignite an internal-combustion engine does not make the ignition‟s function that of an engine.”
(David Dyzenhaus)

Furey v. Roman Catholic School Board for Conception Bay Centre, (1991), NFL
 LE of PF
Facts: Board decided to close school. Parent sought certiorari. Parents had previously been
involved in discussion regarding closures. Dept. of Ed had policy regarding consultations that
was not followed.
Analysis:
- The decision was administrative. Judicial review is available.
- The earlier consultations by the Board created the impression that the Board was operating
    under a system of guidelines which allowed for procedural fairness.
Conclusion: Decision was made without fairness. Certiorari granted.
On appeal: reversed because 2 of 13 applicants affidavits did not indicate that they believed the
past practice would be followed in this instance.
Note: Recall in Bezaire the mere classification as administrative would have meant applicants
entitled to procedural fairness regardless of LE. This was accepted by the same court as Furey but
different judges (Elliott v. Burin Peninsula School Board, 1998).

Mount Sinai Hospital v. QB, (2001), SCC
 Decided on general duty of fairness so as not to extend LE to substantive rights
                                                                                                   17


Facts: Hospital was functioning in violation of license. Minister said if they relocated, new
license would be issued. They relocated at great expense. New Minister would not give new
license because he said it would commit gov to too much financial support. Hospital sought
mandamus.
Issue: Was there a LE that they would get the new license?
History: Trial court refused to grant order because they thought LE could not be used to achieve
substantive outcomes. CA accepted this but thought public law estoppel was grounds to order
hospital to receive license.
Conclusion: SCC majority held that it was not necessary to look at estoppel of LE. Since the
minister made a decision conditional on hospital relocating, it was a decision the current minister
could not revoke. Concurring judgement considered public law estoppel and LE.
Analysis (concurring opinion):
- Private law estoppel won‟t work here in the public context.
- Although we are limiting the application of LE to procedural rather than substantive relief, it
    should be noted that at times it is difficult to distinguish the two. An undue focus on formal
    classification and categorization of powers at the expense of broad principles flexibly applied
    may do a disservice here.
Majority: Based their decision on a general duty of fairness b/c they don‟t want to extent LE to
substantive rights (hospital is seeking mandamus – the license, not re-consideration).


Constitutional Sources
The Charter, S.7

“Every one has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.” (subject to s. 1
justification)
 In the administrative law arena, the Charter is restricted to bodies or at least activities that can
    be brought within the concept of government.
         o E.g. McKinney (1990) – universities are not government – no Charter application.
         o E.g. Harvey (1992) – Charter applies to the disciplinary function of NFLD Law
             Society.
         o E.g. Eldridge (1997) – translation for deaf in hospital – statutory authority that was
             not governmental became subject to Charter when charged with responsibility for the
             effectuation of government programs.
         o To what extent are statutory bodies independent from government? See Blencoe
 S.15 offers no procedural protection (Andrews)
 Must fit under s.7:
1 – Who is “Everyone”? Not corporations but includes non-citizens (Singh)
2 – When are “life, liberty and security of the person” engaged?
    o life – usually not at issue
    o liberty – engaged by more than just physical restraint (Blencoe) (can include mobility
         rights, Wilson)
    o security of the person – engaged by serious impact on “physical and psychological
         integrity of the individual” (Morgentaler…+) (Doesn‟t include property rights – but may
                                                                                               18


       include things that have economic impact, Wilson) [note – this can be considered under
       “liberty” instead].
3 – What is “fundamental justice” and what does it protect against?
    o In Re BC Motor Vehicles, [1985] 2 S.C.R. 486:
            Protects against unfair process and substance (no strict dichotomy) in deprivation
                of rights
            FJ ≠ NJ, but rather: “the principles of fundamental justice are to be found in the
                basic tenets of our legal system. They do not lie in the realm of general public
                policy but in the inherent domain of the judiciary as guardian of the justice
                system.”
    o Also FJ ≥ PF (Singh)
    o Since BC Motor Vehicles  move to FJ as fair balance b/w competing interests of
       individual and the state (Chiarelli)
 Very unlike a breach of s.7 can be justified under s.1 since it already contains balancing
    provisions.

Singh v. Canada, (1985), SCC (p.215)
 Where there is a comprehensive procedure set out in statute, no room for CL challenge, must
    challenge constitutionality of the legislative scheme
 Issues of credibility require an oral hearing
Facts: Appellants were convention refugees who landed in Canada. The Minister, acting on
advice of Refugee Status Advisory Committee, had determined that they were not convention
refugees (convention refugee has different criteria than regular refugee). They applied to the
Immigration Appeal Board for re-determination. The applicants were not referred to an oral
hearing. The Minister‟s report goes to Immigration Appeal Board without applicants knowing the
contents. If Board feels oral hearing has a good chance of success, only then is one granted.
History: Appellants applied to Federal Court of Appeal for review alleging the statutory scheme
infringed s.7 of the Charter. Application failed. Appealed to SCC.
Issue: Is the statutory scheme that determines when a person is a convention refugee contrary to
s. 7 of the Charter?
Analysis: (Wilson)
- There is no common law procedural fairness in this case: the statute set out a very clear
    process.
Does the Charter apply?
- The appellants are entitled to assert s. 7 of the Charter.
         o The term “everyone” in s. 7 includes every person physically present in Canada
         o 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”.
         o Threat of torture is enough to engage s. 7. Wilson states that “it is unthinkable” in
            light of the threat that the Charter would not protect procedural fairness rights for
            status determination.
Was the Charter violated? (Does the statutory procedure breach the principles of NJ?)
- The procedure for determining refugee status is inconsistent with the requirements of
    fundamental justice articulated in s. 7
- At a minimum, the procedural scheme set up by the Act should provide the refugee claimant
    with an adequate opportunity to state his case and to know the case he has to meet
                                                                                                19


        o This won‟t always mean a hearing should be granted – written submissions may be
           enough in some cases but not this one: “[W]here a serious issue of credibility is
           involved, fundamental justice requires that credibility be determined on the basis of
           an oral hearing. … I find it difficult to conceive of a situation in which compliance
           with fundamental justice could be achieved by a tribunal making significant findings
           of credibility solely on the basis of written submissions.”
- 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.
        o 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) – Made their decision based on the
Bill of Rights

Blencoe v. BC (Human Rights Commission), 2000, SCC (p.246)
Facts: Blencoe, while serving as a minister in government, was accused of sexual harassment. He
was removed from Cabinet and dismissed from his party. 2 complaints were filed with the BC
Council of Human Rights. Hearings were scheduled over 30 months after the complaints were
filed. Blencoe commenced judicial review – he claimed the commission lost jurisdiction due to
unreasonable delay. He alleged this caused serious prejudice to him and his family that amounted
to a denial of natural justice.
History: Dismissed by the Sup. Ct. CA allowed the appeal. Appealed to SCC.
Analysis: (Bastarache)
Will the Charter apply to HRC?
- Yes, they are exercising delegated governmental authority. They are statutory actors.
     Although some independence from gov., to find otherwise creates potential to shield
     government by creating admin agencies.
Is s.7 engaged? No.
- Now broader than criminal only; it CAN be applied in the administrative setting
- Violation of liberty? No.
         o Liberty protects the right to make “inherently personal choices”. It is not a right to
            unconstrained freedom. He dismissed the effect of the delay on employability. Not
            engaged here.
- Violation of security? No.
         o Interference with psychological integrity MAY engage s.7. The test has 2 parts: 1)
            state imposed, 2) psychological prejudice must be serious.
                 No general right to dignity
                 All admin decisions cause some stress, therefore it can‟t be applied too
                    broadly
                 There must be a sufficient causal connection between the state delay and the
                    resulting prejudice. – Here is was the medial not government that cause harm.
                 Distinguishes the seriousness of harm from G.(J.) – custody and Morgentaler
                    & Rodriguez.
- Distinguishes delay protected by s. 7 from that protected under s. 11(b) (right to be tried w/in
     reasonable time in criminal context) since in criminal context stigmatization is greater.
Other CL remedies?
                                                                                                  20


-   Where delay amounts to CL abuse of process, but not a breach of PF, a stay of proceedings is
    the appropriate remedy.
- However, for delay to amount to abuse of process it has to engage the public interest i.e. bring
    the justice system into disrepute. This will be a contextual question: 1. nature of the case, 2.
        who caused the delay?, 3. complexity of the case & 4. impact of process on the individual
Conclusion: SCC was critical of the Commission here but it wasn‟t so out of step from other
cases to warrant a finding of abuse of process. Therefore, no Charter infringement and no CL
abuse of process.
Lebel (Dissent):
- This case should not have been decided on Charter grounds.
- One must first look to the common law – this should have been decided on the basis of
    administrative law principles.
- The appropriate remedy would be to expedite the hearing, not a stay

Wilson v. British Columbia, (1988), BCCA, (p.236)
Facts: In BC the medical services commission established a regime to cut costs and regulate
services by restricting the number and location of where doctors could practice.
Ps were doctors who invoked s.6, 7 and 15.
Issue: Does liberty in s.7 encompass the opportunity of a qualified doctor to practice medicine in
BC without restraint as to place, time or purpose even though there is an incidental economic
component?
Analysis:
- S. 7 recognizes the validity of competing societal interests by providing that a person may be
    deprived of life, liberty and security in accordance with the principles of fundamental justice.
- Re Mia, (1985) – denying doctors the opportunity to pursue their professions falls within the
    rubric of “liberty” in s.7.
- However, s. 7 does NOT extend to protect property or purely economic rights.
- A geographic restriction will determine a physician‟s place of residence and a locum tenens
    number will provide only a temporary opportunity to practice.
- The geographic restriction infringe s.7 UNLESS the right has been removed in accordance
    with the principles of natural justice or can be demonstrably justified under s.1.
- This scheme offends the principles of natural justice – it is based on the application of vague
    and uncertain criteria, combined with uncontrolled discretion, leaves substantial scope for
    arbitrary conduct.
Conclusion: S.7 has been violated and cannot be justified.

The Bill of Rights
                                                                                                                        21


    s.1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without
        discrimination by reason of race, national origin, colour, religion or sex, the following human rights and
        fundamental freedoms, namely
              (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.
    2. Every law in Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that is shall
        operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate or
        infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein
        recognized and declared, and in particular, no law of Canada shall be construed and applied so as to
              (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice
              for the determination of his rights and obligations.
     Pre-Charter but wasn‟t really used until after the Charter.
     How does it differ from the Charter?
          o Scope:
-     Is only “quasi-constitutional” – a halfway house b/w common law and constitutional
      protections (note s. 2 language)
-     Only applies in the federal domain; no application to provincial administrative agencies
-     “Individual” and “person” instead of “everyone” in the Charter.
          o Procedural Protections:
-     Section 2(e) procedural guarantees attach to “determination of rights and obligations”
-     Legislative limit applies here too (NAPO; also Authorson)
-     Read broadly after Singh – detached from “life, liberty and security of person” in s. 1(a) (text,
      p. 228); i.e. broader than Charter s. 7.
-     Don‟t have to go through Blencoe analysis to get to 2(e)
-     No s. 1 justification process BUT the lack of s. 1 – not so different given balancing inherent
      in concept of FJ and after Air Canada (see text, note. 3, p. 210)
              o Substantive protections?:
-     Section 1(a) includes “enjoyment of property”
     The Bill of Rights promises more extensive reach than Charter in terms of procedural
      protection for 3 reasons: 1) the use of the term “individual” an “person” in the Bill as opposed
      to “everyone” in the Charter; 2) the inclusion of the “enjoyment of property”; 3) the
      attachment of 2e) of procedural guarantees to the “determination of rights and obligations”; 4)
      no equivalent to s.1 of Charter.

Authorson, 2003 SCC
Facts: Federal government administering pensions for veterans inefficiently. Government started
paying interest on the funds they were using and Act specified that it was not retroactive and
government could not be sued on the interest in the past. The veterans brought an action under
s.1(a) (enjoyment of property). The lower courts found for the veterans under s.1(a). The SCC
says there is no substantive due process here.
 Substantive due process:
            o Parliament can expropriate (w/o. compensation) as long as legislative intent to do
                so was clear and unambiguous  Section 1(a) provides no „substantive due
                process‟ protection where legislative intent to expropriate is clear (paras. 52-57).
            o Substantive rights protected appear to be limited to rights that existed pre-1960
                (Authorson: “The Bill of Rights protects only rights that existed in 1960, prior to
                passage of the Bill of Rights” (at para. 33).  Very strange – not clear of this
                                                                                                                     22


                  limitation extends to procedural rights (doesn‟t seem to since in Singh there was
                  no procedural right in question in 1960).


Procedural Fairness B: The Content of the Duty

Introduction to choice of procedures
    Underlying values:
           o Content will depend on the context – must balance efficiency; individual rights
               and public interest in fair decision making.
    "The values underlying the duty of procedural fairness relate to the principle that the individual or individuals
    affected should have the opportunity to present their case fully and fairly, and have decisions affecting their
    rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory,
    institutional, and social context of the decision." (Baker, L‟Heureux-Dube, para. 28)
    “[T]he aim is not to create “procedural perfection” but to achieve a certain balance between the need for fairness,
    efficiency and predictability of outcome.” (Knight, L‟Heureux-Dube, text, p. 124)
    When we are assessing fairness, we are doing so as compared to the judicial, court model.
          o Lorne Sossin suggests an “intimacy” model is better: “To this day, the key question in
                  an analysis of fairness remains: how much procedural fairness needs to be provided in order to
                  render an adverse decision legitimate? Fairness as a legal principle, therefore, arises in the
                  negative.… As long as fairness is seen as a means of justifying adverse findings, relationships of
                  mutual trust and recognition between bureaucrats and citizens are unlikely to emerge. Within a
                  framework of intimacy, the exchange of knowledge (i.e. fairness) is not a means to the end of
                  legitimating adverse decisions. Rather, this exchange is the basis for justifying decisions, both to
                  the parties affected and to the public at large.”
    The content of procedural fairness is “flexible and variable, and depends on an appreciation
     of the particular statute and the rights affected” (Baker, L‟H-D, para 22).

Common Law
 L‟H-D set out the 5 factors to be considered in determining the content of the duty of fairness
  in Baker:

     1)       The nature of the decision and process followed in making it. How close to judicial
              type of decision and process?  the more judicial, the greater the procedural
              protections required.

     2)       The nature of the statutory scheme and the statutory provisions under which the admin
              body operates  i.e., greater procedural protections where no right of appeal.  If
              more policy-like, less procedural protection owed.

     3)       The importance of the decision to the individual or people affected  more important,
              more procedural protections; i.e., threats to personal security.

     4)       Did the challenger have legitimate expectations regarding procedure based promises,
              practices or representations of the decision-maker?  LEs mean grater protection
              owed.
                                                                                                         23


         5)       The agency‟s own choice of procedures, particularly where statutory regimes allows
                  the agency to define own procedures.  Deference owed to own choice of
                  procedures.

    Constitutional
     The CL duty of fairness if a minimum level of FJ justice necessary in constitutional
       challenges. (Suresh applying Baker)

     Suresh – FJ informed by the CL PF
     Facts: S was a convention refugee who applied for a landed immigrant status. CSIS informed the
     Immigration Minister that he is connected to a suspected terrorist organization. He is ordered
     deported. He is allowed to present written submissions but not allowed to see his immigration
     file; not given any opportunity for an interview or oral representation or hearing. S argues
     deportation where there is a substantial risk of torture violates his s.7 rights (substantive) and the
     deportation procedure is also contrary to his s. 7 rights (procedural – no oral hearing).
     Reasons:
         - S.7 is engaged b/c there is a sufficient causal connection that the risk will occur on foreign
              soil.
         - The premise is that the duty of fairness underlines the s. 7 principles of FJ and that the
              common law rule of natural justice is the basic tenant of our legal system;
         - s. 7 principles of fundamental justice require at minimum compliance with the common
              law requirement of procedural fairness;
         - What is the content of PF in this case? Look to Baker factors:
                                1)    Nature of the decision: Both discretionary and judicial  so it
Deportation process under             neither attracts nor detract from PF;
the Immigration Act
1. Security certificate issued  2)    Nature of the statutory scheme: there is no opportunity for oral
under s. 40.1by Minister              representations, no reasons are provided and no appeal process 
2. Certificate filed and              need for greater PF
reviewed by FC judge to         3)    Importance of the rights affected: faced w/ torture/death 
determine reasonableness
                                      heightened need for PF
3. “Admissibility”
determination under s. 19 to    4)     Legitimate expectations: international HR norms inform wrt
determine whether S was               principles of FJ; international law bars deportation to face torture
engaged in terrorist activities       and so does s.7 (except in extraordinary circumstances)
4. Declaration of Suresh as a 5)      Deference to the government choice of procedure: considerable
danger to security of Canada
                                      discretion given to the minister – parliament is aware it is very
under s. 53(1)(b):
                                      difficulty and delicate decision making  deference to choice of
[N]o person … shall be
removed … where the                   PF.
person‟s life or freedom        - Procedural protections afforded by s. 7 do NOT extend to level of
would be threatened …              requiring an oral hearing or a full judicial process BUT they do require
unless the person is a             more than in the act (which is none) and more than Suresh received.
member of an inadmissible
                                - Procedural protections needed for person facing deportation to torture
and the Minister is of the
opinion that the person            under s. 53:
constitutes a danger to the        o Must be informed of case to be met
security of Canada.                o Given an opportunity to present one‟s case
(paraphrased)  decision still
discretionary under s.53(1)(b)
                                                                                            24


                         o Minister MUST provide written reasons for his decision – cannot
                           be the memo of the advise given to the minister. (must come from
                           DM)

Legislation
 Specific statues may define procedural safeguards
 So does umbrella legislation such as the SPPA

SPPA
Pros                                                Cons
- Uniformity is desirable                           - Can never be complete
- Convenient                                        - Drafting problems
- Provides more certainty than the common           - Less flexible – new agencies keep being
   law (applies across the board)                      formed, can get outdated. (we see
- Gives admin agencies a better idea of what           hangovers from the pre-Nicholson era)
   procedures are PF
- Can correct common law deficiencies
Where and how does it apply?
 Applies where tribunal must provide a hearing:
          o As req‟d by enabling legislation or otherwise by law (s.3.1)
          o Exceptions include: courts, leg committees, tribunals exercising policy-making
               fcns (s. 3(2)).
          o SPPA prevails unless specifically exempted in a given statute (s. 32)
 Examples:
          o Human Rights Commission? No, they don‟t hold hearings.
          o Discipline committee of a union? No, not established by statue – powers of
               decision are not statutorily defined.
          o Residual prerogative powers (e.g. appointment, honours)? No, SPPA doesn‟t
               apply b/c the governmental authority being applied is not defined by statue.
 “Otherwise by law” means: “[W]henever an issue arises as to whether a decision-maker “is
   required . . . otherwise by law” to give a hearing, the court must still ask whether that
   decision maker is a judicial or a quasi-judicial one; this remains a precondition of the
   application of the SPPA.” David Mullan, Administrative Law (2001).


Hearing Rights

 Pre-hearing
  Notice
  Discovery
  Delay
                                           Hearing
                                  Type of hearing (oral, written)
                                      Right to counsel
                                         Disclosure
                                           x-exam
                                          evidence
                                                                                 Post-hearing
                                                                                   Reasons
                                                                                                 25



Pre-hearing Issues
                                                                                               * usually the
Notice                                                                                          problem
 Informing someone about a process in which their rights will somehow be affected
 Issues:      form*           manner of service               timing                content*
 Two forms of notice are common: written and oral. Written notice is more common and will
   usually be what the court requires.
 Personal service is another norm the courts will probably require UNLESS context permits:
       o Re Hardy and Minister of Education (1985) – It would be unreasonable to suggest that
           every member of a school district be personally appraised of the intention to close the
           school. What is required…is that the proposed closure be made known throughout the
           district generally so that it can reasonably be expected to come to the attention of
           interested persons.
       o Re Central Ontario Coalition and Ontario Hydro (1984) – Hydro wanted to build
           another line. Took out newspaper add. The court held that the notice was inherently
           defective b/c it did not denote the alternate route which was chosen.
       o Re Joint Baord under the Consolidated Hearings Act and Ontario Hydro, (1985) –
           This case distinguished Re Central Ontario Coalition since in this case it could not be
           said that the term used did not plainly include the area under consideration.
 Giving notice by mail can lead to problems.
       o Re city of Winnipeg and Torchinsky, (1981) – assessor provided hearing date of May
           12 and notice arrived on May 12. T gave notice of appeal but the Board rejected it
           because it was late. Court dismissed the claim saying the choice of mail was
           unfortunate but that the idea to allowing an appeal was to preserve the validity of the
           assessment but not to protect the right to complain.
       o Re Rymal and Niagara Escarpment Commission (1981) – After receiving notice, man
           immediately mailed the notice of appeal. It arrived one day late. Minister considered
           the appeal anyway.
 The notice must be given sufficiently ahead of the proposed hearing date to give the party
   enough time to decide to participate and to prepare. The length of time needed will depend on
   the nature of the interests and issues. The notice must also give enough information to enable
   the party to prepare to respond.
       o R. v. Ontario Racing Commission ex parte Taylor (1970) – horse trainer given notice
           requiring his presence to explain positive test results. Court held he should have
           clearly been advised of the penalties that might be brought against him in the advent
           of adverse findings.
       o R v. Chester (1984) – C was imprisoned and officials sought to have him moved to the
           special handling unit. C was given notice that a transfer was being considered. C
           responded only to a specific incident. The court held that the notice did not make clear
           that the commission was considering his overall behaviour. The notice was inadequate
           and misleading.
 When should notice be given and what are the limits on its content and wording?

Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada), (1997)
(SCC) AKA Krever Commission
                                                                                               26


Facts: In the 80s many Canadians contracted diseases including HIV and Hep C from tainted
blood. The government appointed Krever to review and report on the blood system. All interested
were invited to apply for standing. The appellants were granted standing. The Commission
invited all parties to inform them if they thought any findings of misconduct should be made. The
memo explained that notice would be given to any person against whom the Commission
intended to make findings of misconduct. 45 notices were sent advising the Commission may
make findings of misconduct against the corp/ind/gov. They were given the opportunity to
respond. Parties brought an action for judicial review arguing the Commissioner did not act
within his authority making these allegations in the notice AND the nature and timing of the
notices were procedurally unfair.
Decision: The SCC unanimously finds the Commissioner acted in his jurisdiction and there was
no procedural unfairness.
Reasons:
Is there a duty of fairness?
- The primary role is to investigate and make findings of fact. They may draw appropriate
     conclusion of misconduct HOWEVER but must be couched differently than a finding of
     criminal or civil liability. However, language contortions are not necessary.
- Procedural fairness is essential since reputations are on the line.
Content of the duty of fairness
- The level of fairness owed is less because this is only an investigation, not a final decision.
     BUT it is tricky because the hearing is almost over and the allegation is close to a final
     decision.
- So long as the notices are issued in confidence to the party receiving them, they should not
     attract great scrutiny.
- They should also be as detailed as possible.
Was the duty of fairness breached?
- The appellants insist that had the Commissioner not made verbal assurance of not making
     such findings, they would have insisted on stricter procedures.
- I find the procedures offered to the parties were extensive and exemplary. These procedures
     were adopted on a consensual basis after a meeting with all parties. I‟m not sure what other
     protections could reasonably have been expected.
- The fact that the Commissioner waited until the last day of the hearings to issue the notices is
     not problematic because there is no statutory requirements that notice be given sooner and it
     will always depend on the circumstances. In this case it was impossible to give detailed
     notices before the evidence had been heard. Furthermore, the appellants were given adequate
     opportunity to respond.
Conclusion: Appeal dismissed. No breach of PF.

Discovery/Pre-hearing Disclosure
                                                                                                                    27


     Must situate admin discovery in context
    Civil proceedings
    - Parties rights are broad; defined by rules of procedure re: discovery & production of documents.
    - Courts have broad powers to make orders, subject to privileges.

                                      Administrative proceedings
            - Parties rights are contextual, dependent on requirements of fairness in the circumstances.
            Parties may include investigating agencies themselves, with putting documents produced in the
            course of their investigation in issue (e.g. Ontario Northwestern Gen. Hosp., CIBA-Geigy)
            - Admin agencies powers to make orders are limited by statutory grants of authority and are
            subject to privileges.

                                                                                       Criminal proceedings
                                                - Accused rights are broad; expanded by Stinchcombe (1991)
                                                - Courts have broad powers to make orders, subject to
                                                privileges.
  What issues arise for discovery in admin law?
          o Rights to discovery/disclosure of documents created or used by the agency in the
              course of its investigation
          o Jurisdiction of tribunals to make orders for production of documents
                       Statutory sources (SPPA)
                       Application of privilege in admin contexts (Pritchard)
SPPA – statutory source of authority to order production
                                          Hearing stage:
Section 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.

Section 12:
      (1) A tribunal may require any person, including a party, by summons,
          (a) to give evidence on oath or affirmation at an oral or electronic hearing; and
           (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,
          relevant to the subject-matter of the proceeding and admissible at a hearing.

                                                    Other stages:
Section 5.4(1):
   If the tribunal‟s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the
   proceeding before all hearings are complete, make orders for,
   (a) the exchange of documents;
   (b) the oral or written examination of a party;
   (c) the exchange of witness statements and reports of expert witnesses;
   (d) the provision of particulars;
   (e) any other form of disclosure.

     Canadian Pacific Airlines v. Canadian Air Lines Pilots Ass (1993), SCC – Board ordered
      Canadian to produce documents. Court held they could not compel discovery in absence of
      express authority to make such orders.

R. v. Stinchcombe, [1991] 3 S.C.R. 326 – disclosure in criminal proceedings
                                                                                                28


Facts: Lawyer appealed a criminal conviction b/c he did no receive all the Crown‟s information.
Principles:
 One must know the case one must meet. Disclosure must not be perfunctory; it must be
    complete, subject only to privilege and relevance.
 “[T]he fruits of the investigation which are in the possession of counsel for the Crown are not
    the property of the Crown for use in securing a conviction but the property of the public to be
    used to ensure that justice is done. In contrast, the defence has no obligation to assist the
    prosecution and is entitled to assume a purely adversarial role toward the prosecution.”

May v. Ferndale, 2005 SCC – Stinchcombe does not apply in admin context
Facts: A decision was made to transfer two inmates from min security to med security based on
new computer software that assesses the risk posed by an offender. Inmates alleged they didn‟t
get enough disclosure to respond to the software evaluation.
Principles: (Fish & LeBel, unanimous court wrt this issue)
 In these cases, the impugned decisions are purely administrative. These cases do not involve a
    criminal trial and innocence is not at stake. The Stinchcombe principles do not apply in the
    administrative context.
 In the administrative context, the duty of procedural fairness generally requires that the
    decision-maker discloses the information he or she relied upon. The requirement is that the
    individual must know the case he or she has to meet.”

OHRC v. Ontario (Board of Inquiry into Northwestern Gen Hospital), (1993), (ON) – close to
making Stinchcombe the standard in admin context
Facts: Nurses alleged systemic discrimination was affecting career advancement. HRC becomes a
party at the adjudication before the HR tribunal. The tribunal orders production of statements that
the Commission first took from complainants. The Commission resists b/c of the importance of
keeping confidentiality (don‟t want people intimidated from coming forward). Commission tries
to argue that the statements were litigation privileged.
Principles:
- The court applies Stinchcombe to reach its decision but makes it clear that the decision does
    not rest on this and even outside crim context more disclosure was needed than was given.
- It is also problematic to have the Commissioner serve as prosecutor since commission
    assisted complainants.

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board), (1994), (FCCA) – how
close you get to Stinchcombe depends on the regulatory context; here economic rights
Facts: Board scheduled hearing to determine whether Habitrol was being sold in Canada at an
excessive price. The Chairman considered a report made by the Board‟s staff. The appellant
seeks disclosure of all documents in the Board‟s possession which relate to the hearing,
particularly the Board‟s report. The Board refused stating they must balance the duty to the
respondent and the right to be heard against their responsibility to the public in ensuring they
receive candid and complete and objective advice.
Issue: Does fairness require the documents prepared in investigation be disclosed? (Will
Stinchcombe principles be applied?)
Principle:
 There is no point in creating a regulatory tribunal if it is treated as a criminal court
                                                                                                 29


  The obligations concerning disclosure imposed by the doctrine of fairness and NJ are met if
   the subject of the inquiry is advised of the case to be met and is provided with all the
   documents that will be relied on.
Note: The economic rights at stake here can be easily distinguished from HR in Northwestern.

Pritchard v. OHRC, SCC, 2004 – privilege of in-house counsel advice
Facts: HRC decided not to investigate. In house counsel provided an opinion on the matter.
Applicant sought judicial review of this decision and wanted access to documents produced in
investigation esp. legal opinion. The HRC asserted that this report was privileged.
Decision: The documents are privileged.
Reasons:
- Owing to the nature of the work of in-house counsel, often having both legal and non-legal
    responsibilities, each situation must be assessed on a case-by-case basis to determine if the
    circumstances were such that the privilege arose.
- Whether or not the privilege will attach depends on the nature of the relationship, the subject
    matter of the advice, and the circumstances in which it is sought and rendered.
- Procedural fairness does not require the disclosure of a privileged legal opinion

Delay
 Delay may be alleged as a violation of PF in 2 ways:
      o Delay as giving rise to prejudice to a person‟s ability to meet the case against them.
        o Delay as an abuse of process.

Blencoe
Facts: SEE above
Principles:
 Belncoe argued both grounds of delay.
 The delay giving rise to prejudice b/c several witnesses died argument was rejected.
 The majority downplays the abuse of process argument and say it doesn‟t meet s.7 threshold.
 The minority treats the abuse of process argument more thoroughly and sets out three factors
    in assessing whether delay is unreasonable: (text, p. 268)
            1)     Time taken compared to time required based on legal and factual complexities,
                   and on reasonable time periods to allow for procedural safeguards;
            2)     The causes of delay beyond these time requirements, including the
                   individual‟s conduct and the conduct of the administrative body;
            3)     The impact of the delay.

The Actual Hearing

Type of Hearing

Oral v. written
 Fairness is no longer synonymous with oral hearing. (since Nicholson)
                                                                                                                     30


    Need to balance rights. Conventional view has been that an oral hearing if needed when the
     credibility is an issue in the proceedings.
                                         When do we need an oral hearing?
     Case          Context                                     Oral hearing required?
     Nicholson     - employ‟t                                  No
                   - decision to dismiss                       Duty owed was “an opportunity, whether
                   - statutory silence; common law duty        orally or in writing as the Board might
                                                               determine, to respond”
     Knight        Minimal level of PF owed:                   No
                   - employ‟t; close to office at pleasure     Negotiations with lawyers suff. –
                   - decision to terminate                     communicated case against and gave opp. to
                   - common law duty                           respond
     Baker         Medium/High level of PF owed:               No
                   - deportation                               Written submissions sufficed
                   - decision on H&C application
                   - common law duty
     Singh         High level of PF owed:                      Yes
                   - deportation or removal                    Credibility was in issue
                   - decision on refugee status
                   - s. 7/s. 2(e) duty (FJ)
     Suresh        High level of PF owed:                      No
                   - deportation to torture                    Opportunity to know case against and
                   - ministerial opinion on “danger to         respond suff. (but earlier s. 40.1 process
                   Cdn society”                                involved oral hearing)
                   - s. 7 duty (FJ)
     Masters
     Khan

Open vs. Closed
 What interests are at stake i.e. POLICY:
          o privacy of victims, complainants
          o public interest in access to the hearing and Charter s. 2(b) rights (freedom of
              expression, of the press)
          o prejudice to individual‟s reputation or commercial competitiveness.
          o potential harm to the individual, to informants, or to national security.
 The default is an open hearing. There are exceptions such as the privacy of victims. These
  interests can be protected by anything from publication bans to the taking of testimony in
  private.
 The SPPA sets out when a closed hearing may be necessary:

SPPA

S. 9(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
    (a) matters involving public security may be disclosed; or

    (b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having
    regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person
    affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to
    the public,
    in which case the tribunal may hold the hearing in the absence of the public.
                                                                                                31



Master v. Ontario (1994), (ON)
Facts: Masters was the ON agent general in NY, appointed at the pleasure of the premier. He was
accused of sexual harassment. Premier requested team of external investigators to ascertain the
facts. The produced a report that confirmed the allegations. Masters was provided with a
summary form of the evidence. Following a response, the premier determined M should no
longer be agent general and reassigned him. M applied for judicial review of the investigators
report alleging various breaches of the rules of natural justice including, interviews of witnesses
happened without him or his counsel present; the evidence provided was not sufficient; he had no
access to witnesses for interviews
Reasons:
-  power here is prerogative and therefore an exception to the SPPA
- Masters is an office holder at the pleasure of the Crown (distinguishable from Nicholson +
    Knight).
- The court looks at Baker type factors to come to the conclusion that a duty of fairness was
    owed but it had not been violated
                 assessment of type of decision – both broad and specific, both administrative
                    and political
                 Not a broad public policy question but individual – impact on Masters
                 Only an investigation – but close to a final decision
                 Premier following harassment policy – deference to choice
- Court finds process followed was adequate. Like L‟H-D in Baker and officer‟s notes being
    sufficient – there is enough to find sufficient PF here.
Conclusion: Application dismissed, PF sufficient.
Note: Good illustration 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 Ottawa, (1997), (CA)
Facts: 2nd year law student, Khan, failed her evidence exam. She asserts that she completed 3
books, labelling them 1 through 3 and after realizing she had additional time, wrote in a 4th book.
The 4th booklet was never seen by the instructor. She appealed to the Faculty of Law
Examinations Committee (EC) and then to the Senate Committee. She was not given notice of
the EC or the opportunity to appear before them. The only record of the EC‟s reasons is in a
memo from the Chair to the Senate committee indicating that the Committee was not convinced
that a fourth book existed.
Reasons:
- There is no PF threshold here – as a matter of precedent, PF is owed.
- A university student threatened by the loss of an academic year is entitled to a high standard
    of justice. (consequences: start career later; render meaningless any academic success)
- Procedural fairness before the Examination Committee required: first, that Committee give an
    oral hearing because her credibility was critical to the issue (not necessary of all academic
    appeals but here credibility was central); second, the Committee should have considered the
    procedures before and after the examination process to make sure they are proper; third, the
    Committee should have given Ms. Khan an opportunity to correct or contradict the three
    factors relied on in their decision.
                                                                                                                        32


-   Ms. Khan need only show that the Committee‟s breach of its duty of fairness may reasonably
    have prejudiced her.
Finlayson (dissent):
- This court must ensure that its judgement is not premised on a state of facts that accepts in
    full and without caveat every claim made by the appellant.
- I agree with the Committee that this was not a matter that turned on credibility. There were no
    allegations made against the appellant and the proceedings were not adversarial in nature.
- We have been referred to no authority that a student is entitled as of right to be heard in
    person when asking for a review of marks.
- Singh can be distinguished – SCC‟s conclusion was linked to the serous nature of the rights at
    stake. Here, the Charter is no an issue.
Conclusion: Appeal allowed.
Note: Majority takes a big leap from Singh in extending right to hearing for credibility in this
case.

The Right to Counsel
 In most hearing situations, the right of the parties to representation by counsel or an agent is
   assumed and indeed provided for statutorily.
 S.11 of the SPPA places constraints on the extent to which witnesses as opposed to parties are
   entitled to be represented by counsel.  Therefore, representation by counsel is not a
   universal right.

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

    Why might the right to counsel not be allowed? To keep the process efficient.
    3 main considerations: seriousness of issues, complexity, capacity of the applicant (Howard;
     G.J.)

Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, (1979),
(ON) – example of competing interests wrt the right to counsel
Facts: For years the men‟s clothing industry has been operating by an arbitration process without
lawyers. They had developed their own unique practices and procedures. The association wished
to have a lawyer wrt this particular grievance.
Issue: Whether a party to arbitration proceedings under this collective agreement has an absolute
right to legal representation.
Reasons:
Arbitrator‟s decision: (no lawyers allowed)
- In this case legal representation was not addresses in the collective agreement.
- One can summarize the CL right to counsel as: (1) neither in courts nor in other forums is an
    absolute right to counsel regarded as an indispensable feature of natural justice; (2) generally,
    legal representation is desirable, and the exercise of discretion by the tribunal should favour
    it; and (3) there may be some circumstances where the participation of counsel is inimical to
    the functioning of the tribunal.
                                                                                                33


-  The procedure as is very time and money efficient. To introduce lawyers could not help but
   slow it down.
- Intimate relationships have formed between the parties and have given rise to understandings
   which are not incorporation in the collective agreements.
- The parties are free to alter the conditions of their collective agreement but it must be done
   with mutual consent.
Southey: (lawyers allowed)
- The arbitrator limited the parties choice of agent when he declared applicants could not be
   represented by legal counsel.
- He had no authority to limit the rights of persons who were clearly entitled to appear before
   him by agents.
- In view of the vital importance of the controversy to the applicant and the complexity of the
   matter, and in law, natural justice requires that the applicant be represented by legal counsel
   without any limitations.

   The English case of R v. Secretary of State for the Home Department, ex p Tarrant (1984),
    about an inmate challenging the refusal of the Board to grant him counsel for a hearing
    regarding discipline charges that were brought against him, set out the following
    considerations when a Board is exercising discretion as to whether to allow legal
    representation:
                    - The seriousness of the charge and the potential penalty.
* Prisoner          - Whether any points of law are likely to arise.
  context           - The capacity of a particular prisoner to present his own case.
                    - Procedural difficulties.
                    - The need for reasonable speed in making their adjudication, which is
                       clearly an important consideration.
                    - The need for fairness as between prisoners and as between prisoners and
                       prison officers.

Howard v. Stony Mountain Institution, (1985) FCA – right to counsel based on s.7 in prison
context depends on circumstances
Facts: Appellant applied for an order prohibiting the respondent prison from continuing or
concluding a hearing of charges against him in the absence of legal counsel as he requested. The
inmate discipline court held that s.7 of the Charter does not create a “new wave of rights” and as
was not persuaded that there were circumstances in the particular case which precluded the
possibility of a fair hearing in the absence of counsel. Appellant sought judicial review.
Issue: Does the appellant have an undeniable right to counsel – more particularly, is s.7 of the
Charter a guarantee of this right?
Decision: In these circumstances, s. 7 requires a right to counsel.
Reasons:
- Apart from s.7 of the Charter, the appellant would not, on the basis of existing jurisprudence,
    have a right to be represented by counsel at the disciplinary hearing.
- The inmate‟s liberty was said to be at stake because his earned remission was in jeopardy as
    was also the security of his person since solitary confinement was a possibility.
                                                                                                  34


-   It is my opinion that s.7 has not created any absolute right to counsel in all such proceedings
    but it will depend on the circumstances of the particular case: its nature, its gravity, the
    capacity of the inmate himself to understand the case and present his defence.
-   The principle feature was that the whole of the appellants earned remission was in jeopardy.
    In my view that alone suggested his need of counsel. Additionally, there was a lack of
    particulars of offences. These suggest the need for counsel to protect the inmate.

   The right to counsel does not extend as far as an absolute right to choose a particular lawyer
    irrespective of the circumstances.
   The right to counsel means little of course if a person cannot afford one.

New Brunswick (Minister of Health and Community Services) v. G.J., (1999), SCC
Facts: A mother, faced with an application to renew the removal of her children by CAS,
challenged legal aid policy not to provide legal aid certificate for custody-order renewal
proceedings under s.7 of the Charter.
Reasons:
- In the circumstances of this case, the appellant‟s right to a fair hearing required that she be
   represented by counsel. I have reached this conclusion through a consideration of the
   following factors: (1) the seriousness of the interests at stake, (2) the complexity of the
   proceedings, and (3) the capacities of the appellant.
- The right to a fair hearing will not always require an individual to be represented by counsel
   when a decision is made affecting that individual‟s right to life, liberty and security of the
   person.
- The seriousness of the interest at stake varies according to the length of the proposed
   separation of parent from child.
- The more serious and complex the proceedings, the more likely it will be that the parent will
   need to possess exceptional capacities for there to be a fair hearing if the parent is
   unrepresented.
- The deleterious effects far outweigh the salutary effects (legal aid saving money).

   In Dehghani v. Canada, (1993), SCC assumes s.7 engaged in the deportation context but
    hold that “the principles of fundamental justice do not include a right to counsel in these
    circumstances of routine information gathering” where no counsel was present at his
    secondary examination upon entry to Canada and info was used to determine his refugee
    status.

Disclosure
 The general principles are clear: a party is entitled to know what evidence and representations
   have been given and is entitled to an adequate opportunity to respond (Kane, 1980).
 Situations where disclosure is likely to be an issue:
   1. Information about an individual collected by agency via doctors, other experts – Napoli
       (Re Abel)
   2. Information about an individual collected by agency through other people, and individual
       doesn‟t have access to identity of those informants – Gallant, Gough (Masters,
       Northwestern Gen. Hospital)
                                                                                                  35


    3. Information about a business collected by an agency, and other individuals (competitors)
        may want access to this information
    4. Information collected by the agency itself about particular corporations, or general
        economic conditions, which individuals or corporations being investigated, or others, may
        want access to (Ciba-Geigy)
   A balancing of interests takes place POLICY:
       For the Individual/in favour of disclosure:
        Individual should have access to whatever info the gov‟t has about them
        Makes participation in decision-making more effective
        Promotes transparency and accountability, improves expert and informant reports
          (Napoli, Gallant, Gough; NW Gen. Hosp, Masters) i.e. we get better decisions

       For the agency/against disclosure:
        Protects ability to collect evidence, ability for informants or experts to be frank (Napoli,
         Gallant, Gough, Ciba-Geigy, NW Gen Hosp)
        Protects against harm done by release of evidence – national security concerns (Suresh),
         or potential harm to informants (Gallant, Gough; Northwestern Gen. Hosp, Masters);
         harm to individual that is subject of the admin process (re Abel), including harm to
         reputation, harm to commercial advantage.
   Information may be subject to some type of privilege
            o Crown or Executive Privilege: A minister may object to the disclosure of
                information on the grounds of a specified public interest. Decision left to the
                courts. OR Federally, the Queen‟s Privy Council can refuse to disclose
                information if certified in writing. Court order not needed.
            o Solicitor-client privilege
            o Adjudication privilege

Re Napoli and Worker’s Compensation Board, (1981), (BCCA) – disclosure promotes better
reports
Facts: Injured worker may apply for compensation. The application is heard by a disability
officer who makes a report. If the officer awards compensation, the worker can appeal within 90
days to the board of review. If the board of review does not uphold the officer‟s finding, it goes
to the WCB for reconsideration. The final decision is made by the majority of the WCB (can be
appealed to Commissioners of the WCB in some cases). Napoli was awarded only $50/month. He
was given a 4 page summary of the information in his file. He appealed to board of review and
was denied. He appealed to the Commissioners.
Issue: Do the rules of natural justice require disclosure? If so, to what extent?
Reasons:
- Do the rules of natural justice require disclosure? Yes.
- If so, to what extent?
- The summary represents a sampling of damaging statements that the respondent‟s counsel
    would undoubtedly wish to challenge in the interests of his client. To do so effectively would
    require production of the original reports.
- Any arguments of the loss of accuracy and frankness in report writing don‟t matter – public
    interest in greater scrutiny may lead to better reports.
Conclusion: Appeal denied.
                                                                                                 36


   In Re Abel and Advisory Review Board, Eggleston requested disclosure of his hospital file
    and the chairman made an order that permitted only his counsel to read it, only in the
    presence of a member of the board and only on condition that it not be disclosed to Eggleston.
    Court thought this was reasonable in balancing the interests of the patients right to disclosure
    and the preservation of confidentiality of sensitive information.

   Regarding claims to disclosure of sources of information, no general rule beyond
    “reasonableness” applies.

Gallant v. Canada (Corr. Services), (1989) (FCA) – balancing PF, NJ and FJ in disclosure
Facts: G was a prisoner. He was advised that he was suspected of involvements in extortion and
drugs and that the warden intended to seek his transfer. The notification did not contain specific
information because it “would jeopardize the safety of the victims”.
History: At trial certiorari was granted on the grounds that insufficient information was given to
satisfy the requirements of procedural fairness.
Decision: Lack of disclosure upheld (2:1).
            Pratte JA*                       Marceau JA                 Desjardins JA (dissent)**

Decides s. 7, decides under s.1             PF (common law) and/or s. 7
under:                                      FJ
Balancing Balancing in s. 1 not s. 7; there Balancing in PF (and by Balancing within s. 7 (FJ)
in FJ, NJ, is a close affinity b/w FJ and   implication, NJ and FJ
PF:        PF but FJ more rigid in its stds too) – audi alteram the
           than NJ or PF. FJ is breached.   same under all
           Balancing is done in s.1 (see    Emphasizes unity between
           below)                           CL and s.7 (ambiguous
                                            about the source he is
                                            deciding under).
Basis for s. 1 saves breach of FJ b/c       No breach of PF b/c        Breach of FJ. FJ requires
decision: prison officials‟ discretion re characterizes nature of      greater scrutiny of decision
          disclosure is necessary (no       decision in terms of       to keep info confidential
          further scrutiny of its exercise) institutional interests    than occurred in this case
                                            rather than impact on      (is info reliable? is non-
                                            Gallant i.e. It is for the disclosure really
                                            good order of the prison. necessary? Is more
                                            Therefore less PF needed. disclosure possible w/out
                                                                       threatening the identity of
                                                                       the informants?)

*Pratt – not consistent with the case law  balancing takes place in s.7 NOT s.1.
** more reflective of later decisions – going towards where we get in Baker (greater scrutiny of
decision making –can‟t have a culture of justification without seeing the justifications)

Gough v. Canada (National Parole Board), (1990), (FCTD)
Facts: G was on parole. Allegations of sexual assault and coercion were made such that his parole
was suspended and eventually revoked. The Parole Board refused to disclose the details of the
                                                                                                                               37


      dates and places of the alleged incidents or the victims names. G applied to have the revocation
      quashed. The application was allowed to the extent that the Board was given the option of an
      order quashing their decision or submitting the relevant info for an in camera hearing with G‟s
      counsel. The Board chose the latter option but appealed to the FCA. The FCA allowed the appeal
      because court had no authorization to compel information for an in camera hearing. Referred
      back to Reed J.
      Reasons:
      - The Board concedes that if the applicant were not a paroled inmate, it would be a flagrant
          breach of his Charter rights for him to be deprived of his liberty without being given details
          of the allegation which underlie that deprivation.
      - The requirements of fundamental justice operate on a spectrum. The content of such
          requirements will vary with the circumstances of the case.
      - The respondent argues that:
              o The applicant is paroled and as such enjoys only a conditional liberty and that this
                   justifies the refusal of information. – the applicant‟s conditional liberty is at the high
                   end of the spectrum (fully paroled – as close to being free as possible).
              o The parole system would break down if individuals could not supply info in
                   confidence
              o The “gist” was conveyed to G – no.
              o G already knew the info he sought – then why not tell him?
      - Regulation 17(5) is a limitation prescribed by law – the burden is on the respondent to
s.1       demonstrate that it is a reasonable limit.
      - I am not convinced disclosure would be a threat to safety. Why would it be any different than
          in a criminal trial where disclosure would be inevitable?
      - The assertion that an in camera hearing with G‟s counsel would have a serious and adverse
          effect is simply not credible.
      Conclusion: The applicant‟s s.7 Charter rights have been infringed Board‟s decision is quashed
      and an order of mandamus will require a new hearing by a differently constituted Board.

      Official Notice
       Should we require all the fact the agency uses in making a decision to be made part of the
         record? – Yes, to the extent it is practicable.
       “What should they do? Reopen the hearing? Send the examiner back from Washington to Los
         Angeles? Ignore the information of which they are fully aware? Use the information but
         conceal its use? Use the information and notify the parties of its use? These are the main
         alternatives.”
       The basic principle is that extra-record facts should be assumed whenever it is convenient to
         assume then, except that convenience should always yield to the requirement of procedural
         fairness that parties should have opportunity to meet in the appropriate fashion all the facts
         that influence the disposition of the case.

      SPPA
      s. 16 A tribunal may, in making its decision in any proceeding,
               (a) take notice of facts that may be judicially noticed; and  general judge knowledge
               (b) take notice of any generally recognized scientific or technical facts, information or opinions within its
               scientific or specialized knowledge.  allowed to use expertise
                                                                                                                38


   Variations on s.16 of the SPPA can be found in other legislation. E.g. Immigration Act,
    s.68(4) and (5).

   In Township of Innisfil v. Township of Vespra, (1981), Barrie applied to the OMB for
    permission to annex land in three adjacent townships. In trying to determine the amount of
    land that would be needed, the Board relied on evidence from an earlier case. The townships
    made a motion for review. Lacouiere J – I regard it as a sound rule for a tribunal intending to
    use any prior decision as a precedent to give parties to the hearing proper notice so that they
    may comment on it. (although they felt the Board did not base their decision on this evidence
    and therefore, there had been no error in law). SCC affirmed CA.

Evidence
 It is well settled that agencies are not governed by the rules of evidence used by the courts
   unless some statutory provisions requires such.
 The SPPA, s.15(1) – sanctions disregard of normal evidence rules:
        s. 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 court
            (a) any oral testimony; and
            (b) any document or other thing,
        relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude
        anything unduly repetitious.
        (2) – exclusions by reason of privilege, or other statutorily exclusions, still count.
   Tribunals are most concerned with the relevance of the evidence
   In Universite du Quebec v. Larocque, (1993), the SCC sustained the quashing of an
    arbitration award by reason of wrongful refusal to admit evidence.
   Khan v. College of Physicians and Surgeons, (1992), hearsay evidence (regarding
    professional misconduct for sexual assault) was not only reasonably necessary but there was
    sufficient indicia of its reliability.
   Tim Power v. Air Canada – second hand smoke in the workplace. On first instance, board
    defined their scope very narrowly as determining if there is “an imminent danger in the
    workplace” and decides this doesn‟t include second hand smoke. On appeal, court says they
    must consider the facts and the evidence of the dangers of second hand smoke [casting the net
    more broadly].

Cross Examination
 The general principle: “[C]ross-examination is a vital element of the adversarial system
   applied and followed in our legal system … Indeed the adversarial system, founded on cross-
   examination and the right to meet the case against the litigant, criminal or civil, is the
   procedural substructure upon which the common law itself has been built.” Innisfil v. Vespra,
    [1981] 2 S.C.R. 145, Estey J. (text, p. 457-58)
   How does this apply in the admin context? “If [a party] is afforded an equally effective
    method of answer the case made against him, in other words is given “a fair opportunity to
    correct or controvert any relevant statement brought forward to his prejudice” …, the
    requirements of natural justice will be met. The importance of cross-examination will vary
    with the nature of the case being heard.” (Re County of Strathcona,(1971, Alta CA), text. P. 460)
   When might the right be limited?
        o Expedience or inconvenience when an expert witness is unavailable, e.g. McLab – PF
            won‟t necessarily demand they be present - must look at the process as a whole to
                                                                                                  39


            determine if there has been adequate opportunity to respond.
        o   Concerns about harm to the witness when vulnerable (e.g. Masters, Re B (sort of))
        o   Claims of privilege (e.g., quasi-claimed executive privilege in Innisfil, national
            security cases)
        o   Necessity of confidentiality of sources of information (e.g., Gallant, Gough, Ciba-
            Geigy)
    SPPA:
    s. 10.1(b)
    A party to a proceeding may, at an oral or electronic hearing, …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 proceedings.

   Major founding case: Re Toronto Newspaper guild and Globe Printing, (1951). The Guild
    applied to the Labour Relations Board to be certified as the bargaining unit for the employees
    of Globe Printing. In support of the representation that they represented most employees, they
    submitted membership cards. The company suspected that some people had left the union and
    sought to cross-examine. The Board refused. Gale J said that the most effective way in which
    the Company should have tested the union and the merits of the application was to cross-
    examine the persons who presented the memberships to the Board.

Innisfil v. Vespra, (1981) SCC
Facts: When it reached the SCC, the issue whether the Board was obliged to accept a letter
stating the government policy had been settled. The letter was admissible and the policy was
relevant evidence, but the board had a duty to make up its own mind. The major issue at the SCC
was whether the opposing municipalities were entitled to cross-examine the official of the
Ministry who had presented the letter.
Decision: SCC finds there is a denial of NJ and the cross-x should have been allowed.
Reasons:
- The board thought they were bound by policy, and it is was longer relevant to have the
    evidence test by cross-x.
- SCC clarified that the legislative scheme has to be explicit if it is to bind tribunals. By
    delineating the proper role of the board, it becomes clear cross-x should be allowed.

Re County of Strathcona No. 20 and MacLab Enterprises, (1971),
Facts: The Provincial Planning Board directed that lands owned by a developer be rezoned. The
decision was appealed. They succeeded on the ground that they had not been given an
opportunity to test all the evidence by x-examination. The developer appealed.
Reasons:
- It was vigorously argued by the respondent that the report should not be accepted unless Dr.
   Bernhart (who produced a report favourable to the appellant), was produced for cross-
   examination. The appellants said he was in Germany and could not appear but did produce a
   detailed CV.
- The absence of its author with the consequent inability to x-examine him goes to the weight
   to be given to it, not the admissibility. Cross-examination is but one method.
Conclusion: Appeal allowed.
                                                                                                                    40


Re B and Catholic Children’s Aid Society of Metropolitan Toronto, (1987)
Facts: An individual can only be placed in the child abuse registry (establish by the Child
Welfare Act, 1980) if given notice and the opportunity to make an application to be removed.
The appellant appeals the Officer‟s decision denying that his name be expunged from the list.
Reasons:
- The respondent admits the victim “changed her story”.
- There was no indication given as to why the victim could not testify herself.
- In our view, where the appellant was denied the right to cross-examine the alleged victim, the
   admission of the hearsay evidence did amount to a denial of natural justice.
Conclusion: Appeal allowed.

Post-Hearing

Reasons
 The SPPA (s.17(1)) requires decision makers coming within their purview to give reasons for
   their decisions (though, in the case of the SPPA only on request).
 We have also seen that until recently. The CL was reluctant to impose on statutory and
   prerogative decision makers an obligation to give reasons for their decisions.
 All of this changed with Baker. In Baker, it was the importance of the interest at stake that
   triggered the obligation.
 Lorne Sossin is concerned that after Baker, the duty to give reasons was treated merely as
   symbolic.
       o E.g. Xu v. Canada, (1999) – form letter filled in after interview would likely meet the
           reasons requirement.
       o E.g. Liang v. Canada, (1999) – Evan J. was prepared to infer from reasons from the
           ticking of a “denied” box and the facts.
 However, after such cases as Suresh, the lower courts now seem to give Baker a substantive
   reading.
 The rationale behind giving reasons: “The law reports are replete with cases affirming the desirability if
      not the legal obligation at common law of giving reasons for decisions…. It reduces to a considerable degree
      the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of
      administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question
      of appeal and, if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well
      be denied where the basis of the decision has not been disclosed.” Northwestern Utilities, 1978 (SCC).
     Why or why not give reasons? POLICY
For                                                                               Against
     reassuring parties that they have been heard                                   Reasons are onerous: (Baker
     benefit to agencies in having decisions exposed to public                       p.71)
      scrutiny/improves public confidence in admin decision-making                     Anti-expedient
      by rooting out arbitrariness and increasing transparency                         Costly (time and
     promotes better decision-making; limits risk of error (actual                       resources)
      decision-making improved by exercise of committing pen to                        Tend to introduce more
      paper) – justification promotes the ROL                                             formality, tend towards
     to allow for meaningful appeal/judicial review (both in terms of                    formal legal argument
      applicant assessing grounds for appeal/review, and review by                   Might promote lack of
      appeal body)                                                                    candour/reasons as window-
                                                                                      dressing
     Two main issues arise with the duty to give reasons:
                                                                                                  41


               o   When will this duty apply? (general approach to content of PF, Baker)
               o   What form do the reasons have to take to satisfy this duty? (Via Rail, Suresh)

VIA Rail Canada v. National Transportation Agency, (2001) CA – reasons must be adequate
Facts: This is an appeal of the decision of the National Transportation Agency that VIA Rail‟s
tariff constitutes an undue obstacle to the mobility of persons with disabilities. The tariff allows
attendants travelling with disabled passengers to travel for free. The tariff provides that the
attendant be able to help the disabled passenger to get on and off the train. The NTA ordered that
that provision be struck from the tariff.
Issue: Did the agency (NTA) err in law in finding the tariff was an obstacle to mobility of a
disabled person OR by finding the obstacle was “undue”?
Decision: The reasons given were inadequate.
Reasons:
- Source of duty: S.39 of the National Transportation Agency General Rules imposes a duty on
     the NTA to give reasons for its decisions.
- Reviews the beneficial purposes of giving reasons (SEE chart above).
- Adequacy: The duty to give reasons is only fulfilled if the reasons provided are adequate.
     However, as a general rule, adequate reasons are those that serve the function for which the
     duty to provide them was imposed – must provide sufficient insight into the reasoning
     process to understand how the decision was made.
- Application: For this court to find the NTA‟a reasons adequate, we must find that these
     reasons (1) set out the basis upon which the Agency found that the existence of the tariff
     constituted an obstacle, (2) that they reflect the reasoning process by which the Agency
     determined that the obstacle was undue and (3) include a consideration of the main factors
     relevant to such determination.
Conclusion: The Agency erred in law. Appeal allowed.

Suresh,
Facts: SEE above.
Principles:
 The applicant must understand how the decision was made
 In this case that means:
        o Must address the substance of legislative section and the arguments put forward.
        o Must articulate why the Minister believes the person to be a danger to Canada.
        o Reasons must emanate from the person making the decision.

Effect of Breach of Duty to Give Reasons
 There is a trend that cases not accompanied by adequate reasons may be set aside as
   erroneous in law.
 Where the sole ground of relief established is a defect in form or a technical irregularity, but
   there has been no substantial wrong or miscarriage of justice, the court may refuse relief
   (Judicial Review Procedure Act)
 If a court is satisfied that the reasons given are independent or alternative the decision may be
   upheld on the basis of the valid reasons. But where the reasons are cumulative, the decision
   will generally be set aside (DiNardo and the Liquor License Board of Ontario, 1974).
                                                                                                              42


Procedural Fairness C: Bias & Independence
   nemo judex in causa propria sua debet esse = no one ought to be a judge in his/her own cause
   Issue of how do you determine bias – problem with proof by evidence of state of mind
   Two important principles:
        o Justice must be seen to be done – “It is of fundamental importance that justice should not only be
            done, but should manifestly and undoubtedly be seem to be done.” (Lord Heward, R. v. Sussex Justices,
            ex party McCarthy, text, p. 572)
       o Tolerance for bias will vary with context (sliding scale) – Greater leniency in
           discretionary decisions that have a high policy content than in cases of more highly
           judicialized proceedings determining objective questions of law.
   Source of the rule against bias:
           o Common law – “Simply put, public confidence in our legal system is rooted in the
               fundamental belief that those who adjudicate in law must always do so without
               bias or prejudice and must be perceived to do so.” (Wewaykum, at para. 57)
           o Constitutional – Charter s. 7 (s. 11(d) – crim.); independence as an unwritten
               principle?
           o Bill of Rights – s. 2(e), a “fair hearing” in accordance with fundamental justice (s.
               2(f) – crim.)
   The standard for RAB:
        “[T]he apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying
        themselves to the question and obtaining thereon the required information. In the words of the Court of
        Appeal, that test is “What would an informed person view the matter realistically and practically – and
        having thought the matter through – conclude.”
        (Grandpre J., Committee for Justice and Liberty v. Nat‟l Energy Board, text, p. 582)
   Parameters:
       o Can we answer an apprehension of bias with evidence of no actual bias? No.
          (Wewaykum)
       o Does bias on the part of one decision maker taint the whole panel? Usually (Great
          Atlantic). But now might depend on decision-making structure, and how much we
          know about it (Wewaykum).
       o To whom does the rule apply? All those substantially involved in decision (Baker;
          Quebec Inc).

Pecuniary interest

Energy Probe v. Canada (Atomic Energy and Control Board), (1984) FCA – RAB not argued
Facts: AECB proposed to renew the operating licence for a nuclear generating station operated by
Ontario Hydro. Energy Probe objected to participation by one board member – Olsen. Olsen was
president of company which supplied cables to nuclear power plants and was member of org
which supported use of nuclear power
Decision: No direct pecuniary connection. (CA upheld TD)
Reasons:
Reed J (TD)
    - Rule – direct pecuniary bias – no matter how trivial will constitute bias
    - Could not find “direct” – sold cables in past – may sell in future
    - Purchase of cables would proceed via a tendering process – no guarantee of business
        advantage
                                                                                                 43


Marceau (FCA) – concurred but for different reasons
- Doesn‟t think RAB and pecuniary interests should be distinguished.
- Sets out the test: a DM is disqualified if there is a reasonable apprehension of bias.
Ratio: Member who was supplier to reviewing company – pecuniary interest too remote and
uncertain.
Note: RAB test elaborated on National Energy Board.

Prior Involvement

Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259; - all about perception; no RAB
Facts: Two native bands, Campbell River Band and Cape Mudge Band, were involved in a
historical land claim for two reserves that federal employees had granted to them at different
times during the nineteenth century. Justice Binnie, the then Associate Deputy Minister of
Justice, had received information about the Campbell River Band's claim and had attended a
meeting in which the claim was discussed before the lawsuits were filed. Justice Binnie stated
that he did not recall the matter. The bands agreed that actual bias was not in issue but alleged a
reasonable apprehension of bias. The bands moved to set aside the judgment.
Reasons:
- Disqualification of judges rests on the presence of actual bias or the reasonable apprehension
    of bias. The only test for the reasonable apprehension of bias is whether a reasonable person,
    properly informed, would apprehend conscious or unconscious bias on the part of the judge.
- Any amount of participation early in a case is not cause for automatic disqualification.
- It could not be realistically held that Binnie J. had acted as counsel because his involvement
    was in a supervisory and administrative capacity and the limited extent of his participation
    did not support a reasonable apprehension of bias. He was never counsel of record and he did
    not play an active role after the claim was filed. The opinions and views he offered in the
    documents were in the context of negotiation, not litigation. Much time has passed since his
    involvement ended and he has stated that he did not recall the matter.
- Justices of the Supreme Court of Canada prepare for each case independently and any
    reasonable person with knowledge of all the factors present would not find a reasonable
    apprehension of bias.

   Committee of justice & Liberty v. National Energy Board, 1978, - RAB. An application to
    NEB for construction of pipeline was made. NEB chairman had been president of company
    that consulted on pipeline construction. Some hearing participants objected. SCC agreed there
    was a reasonable apprehension of bias. No need for correspondence between Crowe‟s NEB
    and CDC functions. The fact that proposed application was later refined or revised – did not
    make it one to which Crowe was stranger.

Great Atlantic & Pacific Co. of Canada v. Ontario (HRC), (1993) – RAB
Facts: Blackhouse was once member of complainants against Osgoode Hall alleging sexual
discrimination. Years later, she asked to have her name withdrawn. She is now a member of the
board set to hear complaints. Union alleges RAB.
Reasons: Blackhouse went beyond the position of advocate and descended personally as a party
into the very arena over which she has been appointed to preside in relation to the same issues.
                                                                                                   44


Therefore, she is in a position to vindicate the position she advanced in her earlier complaint.
Therefore, there is a RAB and the proceedings must be quashed.

Statutory Authorization
 One of the most common responses to bias by prior involvement is that of statutory
   authorization

Brousseau v. AB (Sec Comm), (1989) – no RAB
Facts: B was facing tribunal re: false and misleading statements in prospectus. B alleged chair of
commission was disqualified from sitting in an adjudicative capacity b/c he had instructed staff to
review B‟s company files and info in possession of police. Chair had also received copy of report
prepared.
Reasons: (L‟H-D)
- Allegation was that chairman was both investigator and adjudicator.
- The structure of act may allow for both functions. If so, there is no RAB.
- In order to disqualify a person, some act going beyond prescribed duties must be found.
- The particular structure of the commission and responsibilities must be considered in
    assessing allegation of bias.
Decision: No RAB.

Institutional Bias
 “The determination of institutional bias presupposes that 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.” (Gonthier in QB Inc.)
 Where institutional problems are the result of internal choices about the mode of operation,
   intervention of courts is pursuant to the CL.
 Where the structures are established by statue, the court needs a constitutional or quasi-
   constitutional basis to intervene.
 Provided the tribunal operates in a way so as not to create a RAB, then a statue that leaves
   open the possibility of RAB is not flawed.

Québec Inc. v. Québec (Regie des permis d’alcool), (1996), SCC – RAB
Facts: Regis revoked the company‟s liquor licence for violations of the statute. Issue arose with
Act allowing employees esp. lawyers of Regis to participate in investigation, filing of complaints,
presentation of case and decision.
Issue: Is there bias?
Reasons:
- Plurality of functions is not necessarily problematic. But the Act is silent and leaves open the
    possibility that the same jurist may perform various functions in the same matter. This lack of
    separation of functions leads to RAB.
- Furthermore, a director who decides to hold hearing and then participates in final decision is
    also biased.

Attitudinal Bias

Large v. Stratford, (1992) – No RAB
                                                                                                45


Facts: Employer argues board chair was biased because he made public statements about his
views on mandatory retirement.
Reasons: These comments do not violate admin neutrality. HR inquiry boards are drawn from
those who have expertise and understanding of HR issues. To exclude everyone who ever
expressed a view on a HR issue would be to exclude those best qualified to adjudicate fairly and
knowledgably in a sensitive area.
Decision: No RAB. Appeal dismissed.

Variations in Standards

   With the extension of the rules against bias to decision makers not previously subject to the
    rules of NJ has come heightened realization that, just as with the audi alteram partem
    principle, the standard of what constitutes disqualifying bias may vary dramatically.
   There are 2 basic questions:
            o When will the standard be varied?
            o What standard will be applied in it‟s place?
                         Reasonable apprehension that DM is “amenable to persuasion” (Old St.
                                Boniface and majority of Save Richmond)
                     vs.
                         Has a “closed (but not corrupt) mind.” (LaForest concurring in Save
                                Richmond)

Old St. Boniface Residents Assn. Inc. v. Winnipeg, (1990) SCC – political actors subject to
different standard – was there DM still amenable to persuasion?
Facts: S, a Winnipeg councillor, was involved from the start in a movement through the
municipal approval process for a residential development that required rezoning. He spoke on
behalf of the development at a finance committee of which he was not a member. The association
asked him to withdraw from participation but S refused. The committee approved the project.
Before the rezoning was passed the association moved to quash the decision of the committee.
Issue: What standard of impartiality do we apply to this context? Did the counselor cross the line
(was he biased)?
Reasons: (Sopinka)
- There is a duty of fairness here b/c the statue has a hearing requirement.
- However, this case can be distinguished from those previously considered b/s it involves
    political actors not making judicial like decisions.
- The role of a municipal councillor is quite different from that of the chairman of the National
    Energy Board, which was considered in Ctee. for Justice v. Nat. Energy Bd. -- The members
    of the National Energy Board do not have political or legislative duties. Prejudgment of
    issues is not inherent in the nature of their extra-adjudicative functions.
- The legislature could not have intended that the rules apply to Council members with the
    same force as other tribunals which function more like a court.
- In Cadillac Dev. Corp. v. Toronto (City) (1973), the court held that “A municipal council is
    an elected body having a legislative function within a limited and delegated jurisdiction.
    Under the democratic process the elected representatives are expected to form views as to
    matters of public policy affecting the municipality.”
                                                                                                  46


-  Since there is no evidence the councillor had a personal interest in the development, it was
   wrong to apply the RAB test. In such circumstances, the test is that which applies to all public
   officials: Would a reasonably well-informed person consider that the interest might have an
   influence on the exercise of the official's public duty?
Decision: Appeal dismissed.

Save Richmond Farmland Society v. Richmond (Township), (1990) SCC – test for legislative
type decision is if the DM is amenable to persuasion
Facts: There was some agricultural land that was subject of controversy. After the first reading
and prior to the public hearing on that by-law, M, a municipal councillor, gave an interview to the
press in which he allegedly said that while he would listen attentively at the public hearing, but
he would not change his mind. SRFS petitioned for judicial review for an order preventing M
from voting and further participation because of a disqualifying RAB.
Issue: What standard of impartiality do we apply? Was the councillor biased?
Reasons:
Majority of the court decided on the reasoning of Old St. Boniface.
LaForest: (same conclusion different reasoning)
- The “amenable to persuasion” test is not useful and will lead to political posturing.
- A closed mind is okay so long as the position is honestly held and not due to any corruption.
- If this seemingly guarantees that zoning applications of this nature are decided before ever
    reaching the hearing stage, this inconsistency should be for the legislature to iron out, and not
    the courts.
- Clearly, in this instance, the decision-making process is to be located at the legislative end of
    the spectrum. Accordingly the threshold test for establishing bias should be a very high one.
Decision: Appeal dismissed.
Note: These two judgments reveal a SCC divided on the standard to apply when dealing with
allegation of bias made against municipal councillors.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),
(1992), (p.642) – Investigative stage = closed mind test; hearing stage = higher standard
Facts: Consumer rights advocate appointed to public utilities board. Board had powers to
investigate costs and operations. They request a report of expenses. The telephone company
wanted to increase their pensions. Board decides a public hearing is needed. Wells says crazy
things during the investigation and hearing phase (described the benefits of Sr. officers as
“ludicrous”/“unconscionable”). (note the statutorily authorized overlapping roles). The appellant
objected to Wells‟ participation on the panel on the grounds that his statements created a RAB.
Reasons:
- Boards with popularly elected members will have a standard that is more lenient. In order to
    disqualify the members a challenging party must establish that there has been a pre-judgment
    of the matter to such an extent that any representations to the contrary would be futile.
    Administrative boards that deal with matters of policy will be closely comparable to the
    boards composed of municipal councillors. For those boards, a strict application of a
    reasonable apprehension of bias as a test might undermine the very role which has been
    entrusted to them by the Legislature.
- During the investigative stage, a wide licence must be given to board members to make
    public comment. As long as those statements do not indicate a mind so closed that any
                                                                                                                47


         submissions would be futile, they should not be subject to attack on the basis of bias. Once
         the matter reaches the hearing stage, a greater discretion is required.
      - Further, a member of a board which performs a policy formation function should not be
         susceptible to a charge of bias simply because of the expression of strong opinions prior to
         the hearing. This does not of course mean that there are no limits to the conduct of board
         members.
      - Mr. Wells‟ statements before the hearing did not indicate a closed mind but his statements
         during and after the hearing lead to the conclusion that a reasonable person appraised of the
         situation would have an AB.
      Conclusion: The damage created by apprehension of bias cannot be remedied. The hearing and
      subsequent order resulting from must be void.

      Impartiality and independence
          Separate consideration from bias
          How are impendence and impartiality connected?

      “Independence is a necessary, but not a sufficient, prerequisite for impartiality…. [F]rom an analytical
      point of view, the concept of judicial independence is subordinate to the concept of impartiality.
      Independence is not an end in itself; it is merely one characteristic of our judicial system that seeks to
      achieve another purpose: impartiality.” (L‟Heureux-Dube J., concurring in Quebec Inc. at paras. 106-107)

      “[T]he purpose of the independence requirement is to establish a protected platform for impartial decision
      making.” (Binnie J., CUPE v. Ontario, at para. 189)


Personally impartial (PI) – considers                Objective: an impartial
whether prior involvement, conduct,                  decision-maker;
personal interests/ associations (etc.)              decision-maker must               Institutionally impartial (II)
                                                                                       - considers whether the
on the part of the individual DM                     be I, II, & PI                    statutory structure
present a reasonable apprehension of
                                                                                       allows/gives individual DM
bias.
                                                                                       overlapping roles (subject to
                                                                                       stat. authorization)
           Independent (I) – considers whether the institutional
           structure as per statute allows the DM to be free from
           interference by gov‟t.

        Indices of independence (Judicial, Charter 11 (d)):
                      1. Security of tenure
          “The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an
          age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against
The 3     interference by the executive or other appointing authority in a discretionary or arbitrary
“Valente manner.” (Valente, text, p. 655)
principles”
                      2. Financial security
          “the right to salary and pension should be established by law and not be subject to arbitrary
          interference by the executive in a manner that could affect judicial independence.” (Valente,
          text , p. 657)

                         3. Institutional (administrative) independence
                                                                                                   48


     “the institutional independence of the tribunal with respect to matters of administration
     bearing directly on the exercise of its judicial function.” (Valente, at para. 47)
   What is the standard? Does the institutional structure present a reasonable apprehension of a
    breach of independence (which is tantamount to bias), when viewed from the perspective of
    “a reasonable and right-minded”, and “reasonably well-informed” person viewing the matter
    realistically and practically? (Alex Couture; Matsqui)
   In the admin context, impartiality is:
             o Flexible and variable – there is a sliding scale (unlike impartiality which is there
                 or not) (QB Inc., Matsqui, CUPE v. Ontario)
             o Where statute not conclusive, evaluated in practice (QB Inc., Matsqui, CUPE v. Ontario)
             o No breach where structure is “authorized” by statute (i.e. intended by the
                 legislature) (Ocean Port)

Quebec Inc. v. QB (Regie d’alcool), SCC – no breach; alters Valente in admin context
Facts: Recall involved the suspension of company‟s liquor license. Company challenged
suspension on the basis of institutional impartiality AND independence.  note: case decided on
the basis of institutional impartiality and therefore the comments on independence are in obiter.
Issue: Is there sufficient security of tenure? Does contact with ministry negate independence?
Ratio: Court finds there is no breach of independence in this case because Valente principles need
to be altered in admin context.
Reasons: (Gonthier)
- Re: security of tenure – Min independence doesn‟t require that they hold position for life. But
    removal cannot simply be at the pleasure of the executive. (lower than compared to courts)
- Re: points of contact – normal and do not detract from independence in the admin context
    (don‟t interfere with decision making)
         E.g. annual report doesn‟t allow the Minister to interfere with decision making.
         E.g. government has to approve regulation doesn‟t interfere with DM in adjudicative
            context.

Canadian Pacific Ltd. v. Matsqui Indian Board, (1995) SCC
Facts: Acting under the authority of the Indian Act, Indian Bands across Canada passed bylaws
creating a tax regime for real property on reserve land. Each regime included a means of
challenging the initial assessment. Members of the appeal tribunals could, but need not, be paid.
Band members were eligible appointees. CP and United each had land and applied to the Federal
Court for judicial review of the assessment claiming the bands lacked jurisdiction to impose tax
because the land was not on the “reserve”. The assessing bands moved for an order striking out
the application which was allowed b/c the companies had an alternative remedy – to use the
relevant appeal regime. The companies appealed and the appeal was allowed. The CA justified its
interference with the motion judge‟s discretion on the basis that direct access to the Federal Court
was a more appropriate vehicle for testing validity of assessments. Appealed to the SCC.
Decision: Appeal dismissed 5/4 – wrt institutional independence issue, 4 found no basis for
challenge, two found independence was impaired and three abstained.
Reasons:
Context and flexibility of the application of Valente in admin context (Lamer):
- While administrative tribunals are subject to the Valente principles, the test for institutional
    independence must be applied in light of the functions being performed by the particular
                                                                                                     49


    tribunal at issue. The requisite level of institutional independence (i.e., security of tenure,
    financial security and administrative control) will depend on the nature of the tribunal, the
    interests at stake, and other indices of independence such as oaths of office.
- A reasonable and right-minded person, viewing the whole procedure in the assessment by-
    laws, would have a reasonable apprehension that members of the appeal tribunals are not
    sufficiently independent b/c:
1. There is a complete absence of financial security for members of the tribunals;
2. Security of tenure is either completely absent (in the case of Siska), or ambiguous and
    therefore inadequate (in the case of Matsqui);
3. The tribunals, whose members are appointed by the band chiefs and councils, are being asked
    to adjudicate a dispute pitting the interests of the bands against outside interests (i.e., those of
    the respondents). Effectively, the tribunal members must determine the interests of the very
    people, the bands, to whom they owe their appointments.
Sopinka:
- The bylaws should be interpreted in the context of the fullest knowledge of how they are
    applied in practice. (Lamer doesn‟t think this matters – not possible to be implemented in a
    way to ensure independence).
Decision: Appeal dismissed
Note: What happens to by-laws if Lamer wins? By-law is comparable to a municipal by-law
(since enacted by elected officials) and can only be struck down if unconstitutional b/c CL can‟t
overrule statue.
Ratio:
- Lamer – seems to accept that the structures created by the regulations simply cannot operate
    without compromising the independence of the appeal structures.
- Sopinka – is of the opinion that these concerns might be laid to rest by the way in which the
    tribunals operate in practice.

Ocean Port Hotel Ltd. v. British Columbia, 2001 SCC – if statue authorizes structure, no breach
of independence
Facts: LCB suspended Ocean Port Hotel‟s liquor license for various violations. On appeal Ocean
Port argued that the Board (LAB) lacked sufficient independence to make the ruling and impose
the penalty that it had. Under the statue, the Chair and the members of the LAB serve at the
pleasure of the Crown, usually for a fixed 1 yr term. No evidence the dismissal at pleasure is ever
used. Treasury board fixes remuneration.
Issue: Whether members of the Liquor Appeal Board are sufficiently independent to render
decisions on violations of the Act and impose the penalties it provides.
Decision:
- Absent constitutional constraints, the degree of independence required of a particular
    government decision maker or tribunal is determined by its enabling statute.
- Can we challenge the constitutionality here?
           o S.11(d) of the Bill of Rights – only applies in criminal context
           o S.7 of Charter – can try and push independence guarantee here but not on these
               facts
- How else might we challenge the constitutionality? The unwritten principles.
                                                                         nd
- The principle of judicial independence serves two objectives; only 2 one is constitutional:
           o Rule against bias  perceptions of justice being done
                                                                                                     50


           o   Upholding the rule of law and separation of powers  a constitutional principle,
               not relevant to admin tribunals (at least not this one….perhaps if tribunal more
               adjudicative e.g. Human Rights – although the court doesn‟t go there in Bell so
               maybe door is closed)
Conclusion: The structure of the LAB was authorized by the legislation and is not in violation of
any constitutional principles.

CUPE v. Ontario – so long as discretion is properly exercised, there is no threat to independence
Facts: Harris government implement a change in the procedure for appointing the third arbitrator
in Union disputes. The Minister used to use his discretion to appoint the person from a roster that
both sides agreed on. The Harris government replaced the roster with retired judges. CUPE
challenges institutional impartiality of the class of retired judges (align with interests of
government and management).
Decision: SCC finds for CUPE. But not decided on PF grounds, rather substantively – Minister‟s
exercise of discretion was patently unreasonable.
Issue: Statue provides for ad hoc appointment (no security of tenure). Judges as a class are partial
to management/government (impartiality).
Reasons:
- The statue provides for ad hoc appointment. So long as the discretion is exercised properly
    there is no threat to independence.
- “I accept … the testimony of Professor Joseph Weiler, whose affidavit was filed on behalf of
    the unions: The independence and impartiality of arbitrators is guaranteed not by their
    remoteness, security of tenure, financial security or administrative security, but by training,
    experience and mutual acceptability. (Binnie)

Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36
Facts: Part of long saga of litigation. HR complaint launched very long ago to achieve pay equity.
Bell is trying to pre-empt the HR hearing alleging procedural problem around how the HR
Tribunal is constituted. Bell argued: Not sufficiently independent in issuing guidelines that direct
the tribunal. Chair can extend length of appointment (no sufficient security of tenure). They
argued under the CL and under s.2(e) of the Bill of Rights and the unwritten constitutional
principle of independence.
Decision: No impartiality.
- Notice the different sources of the rule of independence and impartiality:
         o We can apply s.2(e) of the Bill of Rights in the federal jurisdiction. But because the
             court finds no breach of PF of FJ, we don‟t get to the point where the Bill of Rights
             makes a difference.
         o Unwritten principle argument – Recall Ocean Port where court rejected the notion
             of judicial independence as an unwritten principle in admin context b/c there is no
             constitutional imperative that would suggest it be extended because they do not play a
             role in policing the different powers but left open the door for the principle in other
             contexts (in that case it was licensing and clearly admin). Here, the court characterizes
             the tribunal as fairly judicial. If the court was going to apply this principle ever in the
             admin context, it would likely be here  they do not! Court emphasizes the
             construction of the legislation as whole to negate the need to consider the judicial role
             of the tribunal.
                                                                                                   51


-  How do the guidelines even pose a problem for independence? First thing the court does is
   restructure Bell‟s argument. They say it goes to impartiality not independence. Para.19.
- Guidelines themselves are usually soft law and bit binding. But b/c these guidelines are
   published in the Canadian Gazette, they are binding. B/c these guidelines are law, Bell‟s
   argument that they are improperly influential is rejected (laws should influence decisions).
Ratio: Unwritten principles do not apply. The fact that the guidelines are law means that aren‟t
improperly influential.


Procedural Fairness D: Institutional Decision-making
   This is a combination of the right to a hearing and the rule against bias
   A DM must:
    o Have the proper delegation of authority to make the decision…
             must be the one who hears the argument
             must then be the person who decides
   Admin DMs are not bound by other decisions. Principles adjudicated in tribunals do move
    into the CL but they themselves are not CL courts and are not bound by other decisions
    although they may be taken into account.
   Therefore, tribunals need other things to ensure consistency. Tools include:
    o Guidelines – influential, attempts to communicate the standard
    o Consultation among members
   Are these mechanisms good or bad?
    o Consistency in DM is a good  facilitates predictability and coherence, ability to develop
        policy; promotes efficiency, quality control.
                                                BUT
    o Bureaucratic controls challenge traditional ideas of natural justice  may allow influences
        on DM that can‟t be effectively countered by parties, may allow external factors to
        influence DM, decrease individual responsibility for DM.

Consolidated Bathurst, SCC, 1990
Facts: Appeal from ON labour relations board decision. Union and employer concerned with how
much disclosure employer must make regarding shutting down a plant in negotiations. The
Labour Relations Board (LRB) already had a policy and test for this type of issue but wanted to
review it. The hearing involved a panel of three members of the LRB. After the hearing, the LRB
went to a full board meeting to discuss the policy/test. They decided to keep the test they had in
place already. The panel applied it to the facts and found for the union (one panel member
disagreed). The Employer sought review on the basis that the consultation process violated PF
and NJ. If evidence of a particular case was discussed, it was inappropriate (because the person
who hears must decide); Board reconsidered and highlights the reasons the board needs to
employ internal consultation process (certainty and consistency in the way the board makes
decisions.
Issue: Did the LRB consultation process violate the principles of FJ?
Decision: SCC upholds the process (finds against employer) as consistent with PF and NJ.
Dissent: Sopinka & Lamer hold internal consultation is not consistent with NJ.
Reasons:
Note: differentiating between, law, policy and fact.
                                                                                                    52


Sopinka (dissent):
- No adjusting of PF to accommodate board process. Policy issues discussed by Board are
    more like factual issues and therefore parties need to be able to address them (can‟t have
    consultation behind closed doors).
- RAB principle brought in – the appearance of injustice is enough to violate NJ.
Gonthier (majority):
What is the content of PF here?
- Advantages (note: consultation on socio-economic policy issues):
            o coherency, uniformity in decision making ;
            o accumulated wisdom of the tribunal;
- Disadvantages:
            o the risks to independence of decision making;
            o failure to protect the parties‟ rights to be heard and failure to give sufficient notice;
Does the formalized consultation process violate pf by infringing the panel‟s independence?
- Independence is safeguarded by: no consensus required, it was strictly a discussion of policy
    issues; no mandatory attendance (no attendance was taken, no minutes were taken); there was
    no voting; the discussion was strictly related to policy, the specific facts of the case were not
    discussed, no new grounds were laid
Does the consultation process violate parties procedural rights (the right to notice + opportunity
to be heard)?
- If the meetings respect parameters of not discussing facts and restricted only to policy, the
    court is prepared to find that there is no breach of PF.

  Principles:
   o Protecting “impartiality” of decision-maker:
           Consultation cannot be imposed by superior authority within the agency; can only
               be requested by decision-makers themselves
           Consultation has to be limited to questions of law or policy; no reassessment of
               evidence by people who did not hear it. (also protects hearing rights)
           Decision-makers must remain free to make final decision
   o Protecting hearing rights:
           Parties should be given a chance to address any new points of policy or law that
               come up in the course of institutional consultations.
 Paradigms:
  Formalist: Sopinka (& Lamer) (pp. 505-507)  consultation re: facts

    Law                     Policy                       Fact
    Functionalist: Gonthier et al. (pp. 519-520)  although consultation re: fact based policy, test
    can be applied to different situations

    Law                     Policy                       Fact

Tremblay v. Quebec (Commission des affairs sociales), [1992] SCC – application of
Consolidated Bathurst principles + pierce deliberative secrecy
                                                                                                                       53


Facts: Panel had to decide if bandages were considered medical equipment for purposes of
reimbursement. A unanimous draft decision was prepared. The Chair requested a meeting to
discuss policy implications of defining bandages as med equip. As a result of the meeting, one of
the penal members decided to go against the draft decision.
Issue: whether this consultation process breached procedural fairness.
Decision: Breach of PF.
Reasons:
- Even though it is discussing strictly the policy issue – minutes are taken, attendance is taken –
    a pressure to bring around a consensus – you are not deciding in accordance with your
    conscience
- The commission claimed a deliberative secrecy as a defence – SCC said it must be pierced.

   In Ellis-Don Ltd. v. Ontario, the SCC protects deliberative secrecy by presuming admin
    agencies conduct themselves regularly. Binnie dissents b/c he thinks facts must have been
    discussed and therefore PF breach (would draw line where Sopinka did).

Substantive Review A: Constitutional Framework for judicial review
   Consider the question whether, and to what extent, the constitution guarantees the court‟s
    power to review the decisions of administrative agencies for error of law or jurisdiction or for
    procedural fairness.

Old formal model
 Judicial review = Guard ROL by making sure none of the actors are acting outside of the
   statutory powers. No standard of review analysis  just about policing boundaries:
                                                      Courts:
                                           Guardians of the Rule of Law
     Rule of law upheld by enforcing the separation of powers (policing of boundaries, i.e. jurisdiction ; includes
                                      exercising powers in accordance w. NJ)


                                    Administrative Agencies/Stat Delegates
                           PolicyAdmin functions          Quasi-Judicial functions

Problem: Admin agencies take on some of the other roles of government e.g. adjudicative
tribunals interpret the law, commissions formulate policy, etc.

New Baker Functional model
 Judicial review = expanded into merits of decision:
                                                        Courts:
                   Guardians of the Rule of Law; Ultimate interpreters of the Constitution (s. 52)
    Rule of law upheld by requiring justification/rooting out arbitrariness, upholding fundamental values; no strict
                                              separation of law and policy


                                     Administrative Agencies/Stat Delegates
                               Leg/Policy   Admin functions       Judicial functions

   Judicial review of what?
       o Constitutionality (question of law)
                                                                                                                  54


                      of enabling legislation (division of powers OR Charter)
                      of an administrative decision/exercise of discretion
       o Jurisdiction (a question of law, includes procedural fairness – whole first ½ of course)
       o Other questions of law, e.g. interpretation of statute not going to jurisdiction,
           interpretation of other statutes
       o Questions of fact, mixed law and fact
   How does the legislature try and keep the courts from reviewing admin decisions? The
    privative clause – “[A] statutory provision intended to restrict or preclude interference by a
    Court in the decision-making of an administrative tribunal.” (Bryant & Sossin, Public Law)
   Can the legislature completely eliminate JR?
           o Re Residential Tenancies Act, 1981 – S.96 of the Constitution limits province
               from being able to establish a tribunal with s.96 Superior court powers. What does
               a s.96 court look like? Dickson set out a 3 part test:
           1.   “Whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior,
                district or county courts at the time of Confederation.”
           2.   Are the powers being exercised, when examined functionally, judicial? “The primary issue is the
                nature of the question which the tribunal is called upon to decide.”
           3.   How do those powers fit within the whole context of the administrative regime? “The scheme is
                only invalid when the adjudicative function is a sole or central function of the tribunal … so that
                the tribunal can be said to be operating 'like a s. 96 court'.”
   Reasons to trust decision admin tribunals rather than courts: (Hogg)
          o Specialized body
          o Desire for innovation – broad discretion to develop remedies and policies
          o Desire for initiative – tribunal can investigate and research
          o Problem of volume – court proceedings inefficient
          o More economical

Crevier, 1981 – Is there a constitutional right to judicial review? Yes, wrt jurisdiction.
Facts: The provincial legislature had created a mega-tribunal, a professional tribunal that acted as
an appeal body for various professional discipline committees; the legislation that created a mega
tribunal contained provision that prohibited any review of this tribunal‟s decision; so the
legislation contained a privative clause that excluded courts from reviewing the tribunal on
questions of law as well as jurisdiction.
Issue: Is this privative clause constitutional?
Decision: The clause must be struck. The right to JR wrt at least jurisdiction, was read in. A
privative clause can exclude JR on questions of law, mixed fact of law and questions of fact.

Substantive Review B: The Standard of Review
Arriving at the modern standard
   Pre-CUPE, a formalist approach to JR was applied. It involved drawing jurisdictional lines.
    Only question was if jurisdiction was exercised correctly. Questions of law and fact were
    separated out by dividing the question into two. E.g.
    Step 1 – what does good character mean?  Interpretation defines scope of College‟s
    jurisdiction
    Step 2 – if it goes to jurisdiction, did the College interpret “good character” correctly?
   The current approach is pragmatic and functional. The applicable standard of review is
    arrived at through analysis of the following factors:
                                                                                                           55


Factor                            Effect
Presence or absence of a          - Neither stat. right of appeal nor privative clause is determinative of std
privative clause or statutory     of review (i.e., absence not automatically correctness std., presence not
right of appeal                   automatically a P.U. std.)
                                  - strong privative clause  greater deference.

Expertise of tribunal relative - May derive from specialized knowledge of a topic, “institutional
to the reviewing court on the capacity/knowledge” gained from experience and skill in the
issue in question              determination of particular issues; from specialized procedures or non-
                                  judicial means of implementation.
                                  - 3 steps to analyzing expertise.
                                  - Relative expertise in tribunal  greater deference

Purpose of the legislation        - Do the statute and particular decision in issue present „polycentric‟
and the provision in              purposes (balancing of multiple interests, policy issues, protection of
particular                        public, choice of administrative response or remedies)?
                                  - How does the specific provision fit within the legislative scheme?
                                  - Where „polycentric‟ purposes  greater deference
Nature of the question (law,      - Generality of a question to be decided is indicative of a more „legal‟,
fact, mixed)                      less factual question
                                  - Factual questions  greater deference; legal questions  less
                                  deference.


o     “The overall aim is to discern legislative intent, keeping in mind the constitutional role of the
      courts in maintaining the rule of law.” (Dr. Q,). (Equivalent to Dickson in Martineau)
o     E.g.
      Step 1 – Apply 4 factors from P&F approach to determine whether question is central to the
      College‟s task as per legislative intent as part of determination of whether the courts should
      review College‟s decision on a correctness, reasonableness or patent unreasonableness std.
      Step 2 – apply relevant standard
     Chronology of the development of the “modern” standard of review:
    1979 New Brunswick v. CUPE  beginnings of a pragmatic and functional approach w/out
        calling it that; demarcation of “patently unreasonable” standard. Still about jurisdictional line.

    1988 Bibeault  introduces the “pragmatic and functional approach” language, and elaborates
        on this approach. Still about jurisdictional line.

    1994 Pezim v. BC  application of P&F approach to statutory appeals, expanding P&F approach
        and applying “deference” factors beyond analysis of jurisdiction.

    1997 Canada v. Southam  establishes that P&F approach involves a “spectrum” of standards
        of review, adds the middle standard of “reasonableness simpliciter”. Principles of deference
        being applied where they hadn‟t been before.

    1998 Pushpanathan v. Canada (MCI)  consolidates standard of review jurisprudence into 4
        factor approach; attempts to reconcile P&F with older approach focussed on jurisdiction.

    1999 Baker  extends P&F approach to review of discretionary decisions

    2003 Dr. Q. and Ryan v. Law Society of NB  summary and restatement of the P&F approach.
                                                                                                  56


  Although P&F cannot be applied categorically, we have an idea from the caselaw, what SOR
   will apply in certain contexts:
   o Human Rights questions – correctness standard [Mossop, Pushpanathan]
   o Professional discipline bodies, statutory rights of appeal – reasonableness simpliciter
       standard [Dr. Q and Ryan, Pezim, Southam]
   o Labour relations questions – patent unreasonableness standard [CUPE v. NB, CUPE v.
       Ontario (MoL)]
Note: The facts can take you somewhere else!

Canadian Union of Public Employees, Local 693 v. NB Liquor Corporation, (1979)
Facts: Union complained NBLC was replacing striking workers with management contrary to the
Public Service Labour Relations Act which stated “…the employer shall not replace the striking
employees or fill their position with any other employee…”. Employer, argued: (1) employees
are defined in the Act and the def excludes a person employed in a managerial or confidential
capacity. (2) The intent of the section was to ensure jobs remained open for employees –
managers doing job doesn‟t take away jobs after strike. The NBLC rejected this interpretation –
they thought intent of the provision was to ensure picket line safety. The board ordered the
employer to refrain from the use of management to do union members work. There is a strong
privative clause.
Issue: Statutory interpretation – is the manager included in the provision? With the privative
clause, the court is only going to review if it is an issue of jurisdiction. If it is w/in their
jurisdiction, did they make a patently unreasonable jurisdiction as such that they are operating
outside their jurisdiction?
Conclusion: SCC uphold board decision – doesn‟t touch on jurisdiction and isn‟t patently
unreasonable.
Reasons: Dickson (also wrote on the shift in the duty of fairness)
- Rejects the preliminary question approach. Instead, he looks at 3 factors:
    (1) expertise of tribunal and whether the question in issue is w/in their expertise  this is the
    right place to settle the matter – this is what the board was set up to do
    (2) the privative clause  indication of legislative intent; considers the policy: desire to have
    efficiency (board designed to handle quickly)
    (3) the matter in dispute – purpose of whole statutory regime  Dispute is of type that should
    be handled by the board.
- The board does NOT have to be perfect in its decisions – privative clause protects the
    decision unless it is patently unreasonable.
- Since the statue is badly drafted, the labour relations board can make a decision wrt it as well
    as the court can – they can err just as court can.
- There is some room b/w correct interpretation and a decision that is so irrational there is no
    jurisdiction to make it.
            o Is it w/in tribunal‟s jurisdiction  question of correctness
            o If w/in jurisdiction  question of patent reasonableness
Notes:
- Rendered obsolete trying to define the limits of a tribunal‟s DM authority by slicing the non-
    factual issues into a series of preliminary questions.
                                                                                                     57


-   CUPE‟s principal importance is that it shifted the focus of jurisdictional review by directing
    attention to the rationality of the agency‟s interpretation of its enabling statue, rather than to
    an a priori classification of the statutory provision in dispute.
-   HOWEVER, it is still about drawing a jurisdictional line.

Bibeault (v. Union des employes de service, local 298), (1988) SCC
Facts: The labour board grappled with the issue of whether a new employer was a successor and
therefore whether a they were bound by the successor rights provisions of the Labour Code which
would required they adhere to the existing collective agreement. The labour board decided that
the new company came within that definition of continuity of undertaking. This was appealed up
and despite the existence of the privative clause, the Court of Appeal found that the labour board
has wrongly decided the issue and came up with the wrong definition.
Issue: Statutory interpretation – could the court find a jurisdictional issue to allow it to interfere?
Conclusion: SCC said that the labour tribunal was not intended to have exclusive jurisdiction.
Reasons:
- Court applies the pragmatic and functional approach to BOTH the question of jurisdictional
    and patent unreasonableness.
- Apply P&F approach to determine if tribunal w/in their jurisdiction. Must consider:
    o the language of the statute;
    o the powers the statute confers;
    o the expertise of the members and
    o the nature of the problem;
- If tribunal is w/in their jurisdiction, court to interfere only if decision is patently unreasonable
    (in which case tribunal loses their jurisdiction).
Note: The whole thing still centers on jurisdiction (still haven‟t left formalist approach behind
completely)

Pezim v. British Columbia (Superintendent of Brokers), (1994) SCC – identified middle SOR;
deference on issues of policy + specialization
Facts: BCSC found respondents Pezim and others failed to make timely disclosure and suspended
them for trading for 1 year. Pezim exercised right to appeal under s. 149 of Securities Act to
appeal on questions of law to Court of Appeal. Pezim argued that the commission erred in its
interpretation of the phrase “material change”. CA allowed appeal. Appealed to SCC.
Issue: What is the appropriate SOR for a court reviewing a securities commission, not protected
by a privative clause, where there is a statutory right of appeal and where the question turns on
interpretation?
Conclusion: Commission decision should stand.
Reasons: (Iacobucci)
        1. Must consider: the tribunal‟s role or function; whether the agency‟s decisions are
            protected by a privative clause; whether or not the question goes to jurisdiction.
        2. The standard of reasonableness means giving the highest deference to the tribunal‟s
            decision on facts and law where the there is a privative clause and no statutory right of
            appeal;
        3. The standard of correctness means giving the lowest level of deference where the
            legal question or interpretation of the tribunal‟s jurisdiction is at issue of where there
            is an explicit statutory right of appeal for the court to substitute the decision;
                                                                                                  58


       4.    APPLICATION: The case at bar fall b/w these two extremes: there is a statutory right
             of appeal, on one hand and on the other, the tribunal is highly specialized on an issue
             that goes to the core of its regulatory mandate and expertise (what is a “material
             change”?).
        5. Reading the provisions reveal it was clearly the legislators intent to give the
             Commission broad discretion. The definitions required expertise to apply. 
Conclusion: In summary, having regard to the nature of the securities industry, the Commission's
specialization of duties and policy development role as well as the nature of the problem before
the court, considerable deference is warranted in the present case notwithstanding the fact that
there is a statutory right of appeal and there is no privative clause.
Note: Iacobbuci did not articulate the SOR – Southam fills this gap.

Canada v. Southam, (1997) SCC – introduces reasonableness simpliciter
Facts: The respondent applied for order requiring Southam to divest itself of the 2 largest
community paper it owned alleging concentration would likely lessen competition. Competition
tribunal found a substantial lessening in competition and ordered Southam to divest of a paper. R
appealed merits and Southam appealed on remedy. FCA allowed first appeal.
Issue: Did FCA err in concluding that it owed no deference to the tribunal‟s findings? Did the
FCA err in refusing to set aside the tribunal‟s remedial order?
Reasons: Iacobucci
        6. Appellate courts must have regard to the nature of the problem, to the applicable law
             properly interpreted in the light of its purpose, and to the expertise of the tribunal:
(1) The Nature of the Problem Before the Tribunal
        7. Question can be of law, fact or mixed law and fact:
    o Questions of law are questions about what the correct legal test is;
    o Questions of fact are questions about what actually took place between the parties; and
    o Questions of mixed law and fact are questions about whether the facts satisfy the legal
        tests.
        1. Statutory interpretation  law
        2. Point of controversy likely to arise in cases in the future  law
        3. Ignore evidence required by law  law
        4. Consider all evidence was reach wrong conclusion  mixed law and fact
        5. Fail to give adequate weight to certain factors  NOT a matter of law
        8. On these facts, I think it is a matter of mixed law and fact.
(2) Words of Statue
        9. Statue confers right of appeal  less deference
- HOWEVER, this court has noted several times that the absence of a privative clause does not
    settle the question (Bell v. Canada, 1989).
(3) Purpose of Statue
- Tribunal is especially well suited to task of overseeing complex scheme whose objectives are
    purely economic.  deference
(4) Tribunal expertise
- Expertise, which in this case overlaps with the purpose of the statute that the tribunal
    administers, is the most important of the factors that a court must consider in settling on a
    standard of review. Def. of relevant product market in this case if matter squarely w/in
    tribunal expertise.
                                                                                                59


-  Preponderance of lay members – economic and commercial expertise more desirable that
   legal acumen  more deference
The Standard
- Because there are indications both ways, the proper standard of review falls somewhere
   between the ends of the spectrum.
- An unreasonable decision is one that in the main is not supported by any reasons that
   can stand up to a somewhat probing examination.
- The difference between "unreasonable" and" patently unreasonable" lies in the immediacy or
   obviousness of the defect.
- The “clearly wrong” test may serve judges as a guide to the reasonableness simpliciter std.

   While the P & F approach from Bibeault remain the foundational set of criteria for
    determining whether the court owes some degree of deference, the next case represents the
    most authoritative re-articulation of the underpinnings of both CUPE and Bibeault and as
    such is now the standard citation in SOR cases.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998, SCC
Facts: In 1985 appellant claimed refugee status, the claim was never adjudicated but he achieved
permanent residence status under different program. He was later arrested and pleaded guilty to
narcotics trafficking. In 1991, on parole, he applied for Convention refugee status. Employment
and Immigration Canada subsequently issued a conditional deportation order – but since
deportation require he not be a Convention refugee, the issue was referred to the Convention
Refugee Determination Division of the Immigration and Refugee Board. The board decided he
was not a refugee b/c the Convention specifies that a person cannot be guilty of acts contrary to
the purpose and principle of the United Nations. The FC dismissed the application for JR and
certified the following question: Is it an error of law for the Refugee Division to interpret the
Convention to exclude from refugee status an individual guilty of a serious narcotics offence
committed in Canada? FCA said no and upheld FC. Appealed to SCC.
Issue: How is the Convention to be interpreted? What is the SOR?
Conclusion: SOR is correctness. Overturns the CA.
Reasons: Bastarache
- The central inquiry in determining the standard of review exercisable by a court of law is the
    legislative intent of the statute creating the tribunal whose decision is being reviewed.
- What is the role of jurisdiction? A “jurisdictional error” is simply an error on an issue with
    respect to which, according to the outcome of the pragmatic and functional analysis (factors
    below), the tribunal must make a correct interpretation and to which no deference will be
    shown.
Factors to be taken into account
    (1) Privative Clause
- The absence of a privative clause does not necessarily imply a high standard of scrutiny.
- However, the presence of a" full" privative clause is compelling evidence that the court ought
    to show deference to the tribunal's decision.
- At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor
    suggesting a more searching standard of review.
    (2) Expertise
- In Southam, Iacobucci thinks most important.
                                                                                                 60


-  If a tribunal has been constituted with a particular expertise with respect to achieving the aims
   of an Act, whether because of the specialized knowledge of its decision-makers, special
   procedure, or non-judicial means of implementing the Act, then a greater degree of deference
   will be accorded.
- Expertise must be understood as a relative, not absolute concept.
- Making an evaluation of relative expertise has three dimensions: the court must characterize
   the expertise of the tribunal in question; it must consider its own expertise relative to that of
   the tribunal; and it must identify the nature of the specific issue before the administrative
   decision-maker relative to this expertise.
   (3) Purpose of the Act as a whole and the provisions in particular
- Purpose and expertise often overlap
- Where problem require considering numerous interests simultaneously – polycentricity
   principle – courts should show greater restraint.
- Polycentricity indicated by:
        o A range of potential remedies
        o Non-legal expertise required to implement aims of the legislation
        o A range of administrative responses/roles of administrative agency; i.e., more than
            adjudicative… E.g. Human Rights commission also educates and implements policy
        o Open-textured or vague legal principles, principles involving „multi-factor‟ balancing;
            i.e., decisions to be made in the “public interest”
- [Note – there is some wiggle room. When you attach more importance to adjudicative OR
   administrative roles, you influence the amount of deference owed.]
   (4) The nature of the problem – law or fact or mixed?
- Pure questions of law may be granted a wide degree of deference where other factors of the
   pragmatic and functional analysis suggest that such deference is the legislative intention.
- It is not easy to say precisely where the line should be drawn; though in most cases it should
   be sufficiently clear whether the dispute is over a general proposition that might qualify as a
   principle of law or over a particular set of circumstances.
- In the usual case, however, the broader the propositions asserted, and the further the
   implications of such decisions stray from the core expertise of the tribunal, the less likelihood
   that deference will be shown.
The proper standard: correctness
- In my judgment, applying the P&F analysis to the Act indicates that the decision of the Board
   in this case should be subjected to a standard of correctness b/c: the key to knowing
   legislative intent was the use of the terms “serious question of general importance” – general
   suggests it‟s applicable in numerous cases. Moreover, board has no relative experience
   (compare w/ human rights cases where courts often find no deference – although this is still
   an open question. The factors that militate against deference there are even stronger here).
   The relationship b/w the expertise and the provision in question is remote. The legal principle
   is easily separable from the undisputed facts and would have precedential value. Board is no
   performing supervisory function – adjudication is not polycentric. There is no strong
   privative clause.
Conclusion: SOR = Correctness, board erred, appeal allowed.

Dr. Q v. College of Physicians and Surgeons of BC, 2003, SCC – application of P&F approach
                                                                                                61


Facts: Case of professional misconduct. Discipline committee of college suspends Dr. Q. There
was a statutory right of appeal. BCCA overturned committee.
Issue: Did BCSC apply correct SOR?
Conclusion: Reasonableness simpliciter standard should be applied.
Reasons:
- (1) Privative clause/right of appeal?
        o there is a statutory right of appeal  not correctness standard but not PU
- (2) Expertise?
        o Institutional expertise built up b/c the body makes these decisions so often (even lay
           people become experts b/c this is their job)  some deference
- (3) Purpose of Act and provisions?
           o Decision is polycentric but also looks adjudicative (dispute – affects entire career
                ambiguous
- (4) Nature of question?
           o Issue of credibility of claimant vs. Dr. Q and therefore an issue of fact  greater
               deference

   Lambert in Northwood v. BC, 2001 suggested there may be more than 3 SOR. Law Society of
    NB v. Ryan clearly states that this is not possible.

Law Society of NB v. Ryan, 2003, SCC – only 3 SORs
Facts: LS disbarred Ryan for prof misconduct. He appealed to CA as per Law Society Act. The
CA remitted matter to Discipline Committee (LS) mandating that it reconsider the matter in light
of medical evidence sub by Ryan. The Dis Comm did as directed and affirmed original decision.
Ryan appeal again – CA allowed appeal and substituted the penalty of indefinite suspension.
Reasons: (Iacobucci)
- The pragmatic and functional approach is appropriate. There are 4 factors to be considered:
- (1) Presence of absence of a privative clause or a statutory right of appeal
        o There is no privative clause here and there is a broad right of appeal.  less deference
- (2) Expertise of the tribunal/committee
        o May at first appear they have no relative expertise since composed of mostly lawyers
           BUT they do have greater expertise wrt choice of sanctions for breaches.
        o Members from the public are also appointed – better represent public view which is
           important.
- (3) Purpose of the statue
        o Here, major objective was to create a self-regulating professional body with authority
           to set and maintain professional standard of practice. Suggests greater deference.
- (4) Nature of the question in dispute: law, fact or mixed?
        o Question is of mixed fact and law b/c it involves applying general principles to
           specific circumstances.
Conclusion on pragmatic and functional approach: 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. Court will only intervene if the decision is unreasonable.
Reasonableness simpliciter
- There is a spectrum of deference NOT of SOR. It is impracticable to have more than 3 SOR.
                                                                                                              62


-   An unreasonable decision is one that, in the main, is not supported by any reasons that can
    stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on
    the reasonableness standard must look to see whether any reasons support it. (Southam)
- The reasonableness standard requires a reviewing court to stay close to the reasons given by
    the tribunal and "look to see" whether any of those reasons adequately support the decision.
- When undertaking a correctness review, the court may undertake its own reasoning process to
    arrive at the result it judges correct. In contrast, when deciding whether an administrative
    action was unreasonable, a court should not at any point ask itself what the correct decision
    would have been.
Conclusion: By reference to the standard of unreasonableness, the committees decision was not
reviewable.

Applying the standard
   Must ask (1) What is the SOR? (2) Does the decision hold up under it?

Reasonableness
 How has the court defined “reasonableness”?
 Southam:
         “An unreasonable decision is one that, in the main is not supported by any reasons that can stand
up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the
reasonableness standard must look to see whether any reasons support it.” …
         “The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or
obviousness of the defect. If the defect is apparent on the fact of the tribunal‟s reasons, then the tribunal‟s
decision is patently unreasonable. But if it takes some significant searching of testing to find the defect,
then the decision is unreasonable but not patently unreasonable.” (text, p. 777)
   Ryan – reasonableness vs correctness:
         “When undertaking a correctness review, the court may undertake its own reasoning process to
arrive at the result it judges correct. In contrast, when deciding whether an administrative action was
unreasonable, a court should not at any point ask itself what the correct decision would have been.
Applying the standard of reasonableness gives effect to the legislative intention that a specialized body
will have the primary responsibility of deciding the issue according to its own process and for its own
reasons. The standard of reasonableness does not imply that a decision maker is merely afforded a „margin
of error‟ around what the court believes is the correct result…. Unlike a review for correctness, there will
often be no single right answer to the questions that are under review against the standard of
reasonableness.” (text, p. 787)
   Ryan – reasonableness vs. PU (and correctness again)
         “How will a reviewing court know whether a decision is reasonable given that it may not first
inquire into its correctness? The answer is that a reviewing court must look to the reasons given by the
tribunal….
         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. …a
decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this
explanation is not one that the reviewing court finds compelling.” (788)
   Examples:

      Type of Question                                   Tribunal’s decision was reasonable or
                                                         unreasonable because….
                                                                                                                63


Southam       Definition of relevant product market with        1. Reasonable because “reasons cannot be said to be
              respect to print advertising and finding that     without foundation or logical coherence.” it was not
              Southam‟s daily newspapers are in different       without “logical underpinning”
              market than community papers. Two particular      2. Reasonable because tribunal did not ignore
              questions:                                        “admittedly weighty evidence”, but only did not
              1. decision to discount evidence of „functional   regard it as decisive. Although finding is “perhaps
              interchangeability‟ of community and daily        unusual”, it is not without “logical and evidentiary
              newspapers. 2. failure to consider evidence       underpinning.”
              regarding Southam‟s own assessment of
              relevant product market
Ryan          Consideration of medical evidence in decision     Reasonable because evidence was taken into
              to disbar Ryan.                                   account; court cannot reweigh the evidence.
Baker         Decision to not exempt Baker from                 - Unreasonable because of immigration officer‟s
              requirements of the Immigration Act               failure to give serious weight and consideration to
              (application for perm. residency from outside     the interests of the children: “The officer was
              Canada) on humanitarian & compassionate           completely dismissive of the interests of Ms.
              grounds                                           Baker‟s children” (at para. 65)
                                                                - officer‟s decision “was inconsistent with values
                                                                underlying grant of discretion” and cannot stand up
                                                                to “somewhat probing examination” (at para. 65)

        Correctness
         A standard where the court feels most qualified to intervene.
         Always applies when:
                  o It is a constitutional issue.
                  o It is an issue of jurisdiction (but we don‟t always know if a jurisdiction question is
                      present).
         Usually applies when:
                  o It is an issue of law
                  o It is a human rights issue (court‟s exertise)
         Is there room for deference in the correctness standard? Depends on if you view statues as
           complete codes. L‟H-D thinks meaning can be given to “open-textured” words of statue.

        Nanaimo v. Rascal Trucking Ltd., 2000, SCC, (p.841) – jurisdiction issue, SOR = correctness
        Facts: Rascal leased some land from Kismet. Rascal obtained a permit to put soil on the land.
        Residents complained. The Nanaimo council then passed a resolution declaring the pile of soil a
        nuisance pursuant to the Municipal Act and ordered Kismet to remove it. They did not comply.
        Issue: Did the city have jurisdiction? Why is it a jurisdiction issue? B/c “matter or thing” is being
        interpreted to define the jurisdiction of city to declare something a nuisance. (SOR automatically
        correctness)
        Reasons:
        - 2 step approach:
        1. Issue of stat interpretation going to jurisdiction  correctness SOR
                o Court decides “pile of soil” is w/in words of the statue
        If, w/in jurisdiction, then must consider…
        2. Issue of decision of municipality on the facts  PU SOR

        Canada v. Mossop, (1993), SCC (p.825) – issue of stat interp not going to jurisdiction
                                                                                                         64


Facts: Mossop worked for the Department of the Secretary of State and was governed by the
CUPTE collective agreement. He attended the funeral of a man described as his lover‟s father.
Bereavement leave of four days, pursuant to the agreement, existed for an employee‟s
“immediate family”. Mossop applied for bereavement leave and was denied. He was offered
special leave instead. He filed complaints of discrimination against his employer and his union
under the Canadian Human Rights Act. The Human Rights Tribunal found that the employer and
union had discriminated against the complainant on the grounds of “family status” which is a
recognized ground of discrimination in the Act (sexual orientation is not). AG applied for review.
Issue: This is a case of stat interpretation that doesn‟t go to jurisdiction (obviously in the human
right‟s tribunal‟s jurisdiction).
Decision:
- Both majority and minority select the correctness standard of review and at the end of the day
    reject that Canadian human rights tribunal decision;
- Dissent selects patently unreasonable standard of review and would uphold the decision.
Reasons:
Lamer (majority)
- This is an issue of human rights and statutory interpretation  SOR = correctness
- The Canadian Human Rights Act does not recognize sexual orientation as a prohibited
    ground of discrimination.
- Parliament explicitly decided not to add sexual orientation to the Act.
- Allowing discrimination on the basis of “family status” would indirectly introduce into the
    CHRA the prohibition which Parliament specifically decided not to include in the Act.
- Therefore, can‟t argue “family status” b/c it subverts legislative intent.
 Majority (Lamer w. Sopinka, LaForest (own                  Dissent (McLachlin and Cory)
 reasons), Iaccobuci)
                                                            SOR = Correctness
 SOR = Correctness
                                                            Tribunal‟s interp of “family status” was
 Tribunal‟s interp of “family status” was incorrect         correct based on L‟Heureux-Dube‟s analysis
 based on their interp of legislative intent


                            Dissent (L‟Heureux-Dube)
                            SOR = PU (interp of „family status‟ is at the core of
                            Tribunal‟s purpose)

                            Tribunal‟s interp of “family status” might be correct,
                            but is certainly not PU



Trinity Western University v. BC College of Teachers, SCC 2001 (p.801)
Facts: The BC college of teachers denied TWU‟s application to administer a full teacher‟s
college program b/c they thought TWU promoted discriminatory attitudes (Christian college had
regulations against homosexuality). TWU applied for judicial review to the BC Supreme Court.
The BC Supreme Court found that it was not in the college‟s jurisdiction to consider whether the
program follows discriminatory practices and that there was no reasonable foundation to support
their decision. The Court of Appeal found that the college had acted w/in their jurisdiction, but
affirmed TJ‟s decision on the basis of no reasonable foundation for the finding of discrimination.
                                                                                                           65


        Decision: Appeal dismissed – the college erred in it‟s decision.
        Reasons: Iacobucci & Batarache
        - 2 steps:
        1. Issue of stat interp going to jurisdiction  SOR = correctness
        - S.4 f the Teaching Professions Act says the college must “have regard to the public interest”.
            Therefore, it is in their jurisdiction to consider discrimination.
        2. Was the college‟s decision justified? Must determine SOR?
        - What is SOR?
                o Majority – balancing (human) rights not interests; a matter of law not fact 
                    correctness std, decision was incorrect.
                o Dissent (L‟H-D) – balancing interests not human rights (charter values, no one‟s
                    rights immediately implicated); a significant factual element involved in the decision
                     PU std, decision not PU.

        Patent Unreasonableness

         National Corn Growers Assn. v. Canada (Import Tribunal), 1990, SCC, (p.867) – before Pezim
         and therefore before reasonableness simplciter – this case is more like reasonableness than PU
         Facts: Following an inquiry, the Canadian Import Tribunal ruled that, in terms of s. 42 of the
         Special Import Measures Act, the importation into Canada of U.S. grain corn was being
         subsidized to the extent of having caused, causing and being likely to cause material injury to the
         production in Canada of like goods. As a result, the imposition of a countervailing duty was
         authorised. By virtue of s. 76(1) of the Act, all orders and findings of the Tribunal were “final and
         conclusive”. Application for review.
         Issue: Did the Tribunal err in it‟s decision?
         Reasons:
         Gonthier
         - Once you accept that a matter falls within a tribunal‟s jurisdiction, you must begin not by
             asking if the tribunal‟s conclusion was patently unreasonable, but whether the tribunal‟s
             interpretation of the provisions of the legislation to define the way they came to their
             conclusion was patently unreasonable.
         1. It was not patently unreasonable for the Tribunal to use other documents to aid in their
             interpretation of the Act.
         2. Their interpretation of the Act was not patently unreasonable.
         3. Their findings were not patently unreasonable.
         Wilson (concurring)
Minority - In approaching the decision of the Tribunal, it was not appropriate for the Court to consider
gets picked whether its "conclusions" could be sustained on any reasonable interpretation of the facts and
up in Ryan the law. Rather, the Court was confined to considering whether the Tribunal's interpretation
as how we
are          of the relevant provisions in its empowering legislation was patently unreasonable. Once this
“supposed” threshold had been met by the Tribunal, it was not for the Court to then engage in a detailed
to do it     review of the Tribunal's various findings.
         - The expertise of tribunal and strong privative clause make it inappropriate for the court to
             consider the correctness of the decision. The broad interpretation given to the legislation by
             the tribunal cannot be said to be patently unreasonable.
                                                                                                                    66


           Toronto Board of Education v. OSSTF Dis. 15, 1997, SCC, (p.903) – labour arbitration  PU
           Facts: B taught at with the Board for over 20 years and was turned down for promotion to vice-
           principal 39 times. He filed a complaint with the ON Human Rights Commission. After a
           lengthily hearing, the tribunal found the claim was not made out. During the hearings B kept
           sending disturbing letters with veiled threats to the Board. He underwent psychiatric evaluation
           twice and both times his assessment was normal. The board discharged B for reasons of
           unprofessional conduct, poor judgment and attitudes which indicated he was no longer capable of
           fulfilling his duties as a teacher under the Education Act. B filed a grievance. A majority of the
           arbitration board determined that the decision to dismiss B should be set aside. The decision was
           quashed in divisional court on the basis that there was no evidence before the arbitrators that
           would support reinstatement of B. The CA unanimously restored the arbitration decision.
           Issue: Is the decision PU? (It is a question of fact (only one fact), will he get better?)
           Decision: Normally the court won‟t interfere with a matter of fact. But here the SCC finds the
           labour arbitrator‟s decision PU.
           Conclusion: There was no evidence reasonably capable of supporting the conclusion that the
           misconduct was a momentary aberration. The absence of such evidence rendered the decision of
           the arbitration board patently unreasonable, and there was no basis for their conclusion that he
           could be returned to the classroom. Accordingly, the decision of the Court of Appeal should be
           set aside, and the award of the board of arbitration should be quashed.
           Problem: the court looks really hard at both law and evidence  Ryan says PU should be
           obvious.
                  Type of Question                        Tribunal’s decision was or was not patently
                                                          unreasonable because….

Toronto v         Decision to reinstate Bhadauria;        P.U. because key findings of fact show “disquieting
OSSTF             finding that misconduct would be        contradictions” with legal conclusion. Lack of evidence
(1997)            temporary in spite of evidence to the   “capable of supporting the conclusion that the misconduct
                  contrary.                               was a momentary aberration” (p. 912)


National          Interpretation of “material injury” and Not P.U. because:
Corn              “subsidized goods” under the Special Majority – interpretations are not unreasonable given
Growers           Import Measures Act and the GATT, statutory language and the GATT, conclusions not
(1990)            and application in the circumstances unreasonable because there was some evidence to support
                                                          it.
                                                          Minority – interpretations not unreasonable because
                                                          tribunal‟s interpretation is rationally supported; concerned
                                                          with methodology not conclusions; detailed review on
                                                          P.U. std is inappropriate.


              How many questions do we ask?

           CUPE v. Ontario
           Facts: Recall Harris changed appointment procedures for 3rd arbitrator
           Majority – 2 questions:
              1. Statutory interpretation to define scope of discretion re appointment of labour arbitrators
              2. Exercise of discretion by minister appointing particular arbitrators
                                                                                                 67


-   Std of review: Q1 – correctness; Q2 – PU
-   Application: PU because given interpretation of the Act, Minister‟s appointments expressly
    excluded factors that “went straight to the heart of the HLDAA legislative scheme”; effect of
    frustrating the legislative scheme. Given purposes of the legislation, this defect is both
    “immediate and obvious.”
Dissent – 1 question - exercise of discretion incl. stat interpretation (we don‟t break it into 2
questions) [called Binnie and majority on what they did – they applied a 2 standard approach to
the same question]
- Std of review - PU
- Application: Not P.U. because statute does not say much, requires Minister to reach an
    opinion not meet any particular criteria. Therefore, cannot characterize Minister‟s decision as
    immediately or obviously defective.
Problem: what the majority does looks so much like a preliminary question approach like we
used to have.

Critiquing the standard and legislative reforms
Toronto v. CUPE, (2003), SCC – two standards sometimes needed
Facts: O was convicted of sexual assault. After the conviction, his employer, the City of Toronto,
fired him. He grieved the dismissal. At the arbitration hearing, the arbitrator ruled that the
criminal conviction was admissible evidence, but that it was not conclusive as to whether O had
sexually assaulted the boy. He held that the presumption raised by the criminal conviction had
been rebutted, and that O had been dismissed without just cause. The Divisional Court quashed
the arbitrator‟s ruling. The Court of Appeal upheld that decision.
Reasons:
1. Question of whether a criminal conviction may be relitigated in a grievance proceeding 
SOR = correctness.
            o Arbitrator was incorrect – cannot relitigate.
2. Arbitrator‟s decision  SOR = PU (labour arbitration + strong privative clause)
            o Answer to Q1 leaves Q2 PU
LeBel (goes on a rant critiquing SOR) [omitted lengthy class notes on Nov 22nd]

   When might more than one standard apply to the same decision?
      o Where constitutional issues are engaged by the administrative decision (CUPE v.
         Ontario, dissent at para. 7)
      o Where the statute indicates that different degrees of review- are appropriate for
         different types of questions (fact or law or mixed) through a privative clause (CUPE v.
         Ontario, dissent at para. 8)
      o Where the common law or an external statute requires interpretation and is not related
         to the tribunal‟s expertise or core statutory mandate (CUPE v. Toronto, LeBel J. at
         paras. 68-76 and Arbour J. at paras. 14-15; see also discussion in CUPE v. Ontario,
         dissent at para. 9)
      o Other possibilities – where question of law goes to jurisdiction (Nanaimo v. Rascal
         Trucking – but see also Baker at para. 53); where there is a question of statutory
         interpretation defining scope of discretionary authority??? (CUPE v. Ontario
         (majority))
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   In the face of such uncertainty (as articulated by LeBel in CUPE v. Toronto), why doesn‟t the
    legislature just come out and say what they mean? They have started to w/ umbrella
    legislation. E.g. BC‟s Administrative Tribunal‟s Act. Rankin is critical b/c he thinks it takes
    us back to the categorical approach.

Substantive review C: Jurisdiction to decide constitutional challenges
   There are 4 issues wrt the allocation of functions b/w courts and admin tribunals when a
    constitutional issues arises:
    1. Do admin agencies have the jurisdiction to hear Charter and C challenges to the validity
        of the statues they administer?
    2. If yes to #1, must a litigant resort exclusively to or at least exhaust the statutory remedies
        fist?
    3. If yes to # 1, may admin agencies grant constitutional remedies?
    4. What SOR should apply when an admin agency makes a pronouncement on a
        constitutional question?
   In the formalist model, courts are the sole interpreters of the constitution. A tribunal
    determining if its enabling statue is valid potentially leads to the conclusion that legislature
    intended unconstitutional law (i.e. set up a tribunal to undo their own law).
   There are also policy concerns that if we let tribunals consider constitutional issues, this will
    decrease efficiency. On the other hand, it may improve access to justice by allowing people to
    access the C more easily.
   What might be the source of an admin agency‟s jurisdiction to determine constitutional
    issues? No constitutional source. Therefore, a tribunal‟s jurisdiction is dependent on a
    statutory grant of authority.

Pre-Cooper starting point: (Martin returns to this)
1. Does statute give the tribunal authority over the matter at hand and authority to give the
remedy sought?
2. Where the matter is whether legislation is inconsistent with the Charter, does the statute give
express authority to tribunal to decide questions of law?
3. If no, does the statute give such authority by implication?

       As defined in the trilogy of cases, Douglas/Kwantlen Faculty Assn (1990), Cuddy Chicks
       (1991), Tétreault-Gadoury (1991)).

Cooper v. Canada (Human Rights Commission), (1996), SCC – backdrop for current
methodology – has been overruled in Martin
Facts: Bell and Cooper were pilots and pursuant to their collective agreement they were retired by
Canadian Airlines at age 60. The filed a complaint of discrimination based on age with the
Human Rights Commission. The HRC appointed an investigator. Canadian Airlines argued that
the retirement policy was a bona fide occupational requirement under s.15(a) of the Human
Rights Act which states that a practice is not discriminatory if an individual‟s employment is
terminated b/c the individual has reached the normal are of retirement for employees working in
similar positions. Based on McKinney which stated that mandatory retirement policy at a
university was a violation of s.15 but could be saved under s.1, the investigator recommended the
                                                                                                  69


complaint be dismissed. The HRC informed the appellants that an inquiry was not warranted b/c
they were bound by McKinney.
Issue: Has Parliament granted to the Commission or Tribunal, the jurisdiction to consider the
constitutional validity of a provision of its enabling statute?
Reasons:
Lamer CJ (concurring)
- Admin jurisdiction over constitutional challenges is unconstitutional (inversion of powers b/w
    exec and leg)  formalist.
- The distinction b/w rendering a provision inoperable and striking it down is untenable since
    rendering a provision inoperable taints the provision for any future decision.
LaForest J (majority)
- Such jurisdiction must be granted to a tribunal in its enabling statute, by either expressly or
    explicitly granting the tribunal the power to consider general questions of law.
- Practical considerations did not favour the Commission having the power to determine the
    constitutional validity of a statute (not an adjudicative body, not bound by traditional rules of
    evidence, no expertise in this area).
McLachlin J (dissent)
- Admin agencies should consider Charter challenges absent clear legislative intent. “The
    Charter is not some holy grail which only judicial initiates of the superior courts may
    touch. The Charter belongs to the people” (Baker paradigm coming through)
- Charter is part of law to be interpreted; advantageous to have Charter interp done in context,
    to increase accessibility of Charter through admin tribunals; all this more important than
    practical considerations/expediencies  functionalist, broader notion of the rule of law.

Martin (v. Nova Scotia (Workers' Compensation Board) (2003) SCC – TEST
Facts: L and M were workers injured on the job. They both tried to return to work but suffered
chronic pain. They challenged, under s.15 of the Charter, the provisions of the Functional
Restoration (Multi-Faceted Pain Services) Program Regulations and portions of s. 10B of the
Workers‟ Compensation Act b/c they excluded chronic pain from the purview of the regular
workers‟ compensation system and provided, in lieu, a four-week Functional Restoration
Program beyond which no further benefits were available. The Board challenged the Appeals
Tribunal's jurisdiction to hear the Charter argument. The Appeals Tribunal affirmed its
jurisdiction to apply the Charter. They found that the Act violated s. 15 and that these violations
were not justified under s. 1. M was awarded benefits with a cut off. L was awarded nothing. M
and L and the board (on Charter jurisdiction) appealed. The CA found that the Appeals Tribunal
did not have jurisdiction to consider the constitutional validity of the Act and that, in any event,
the chronic pain provisions did not demean the human dignity of the claimants and thus did not
violate s. 15.
Issue: Does the worker‟s comp appeals tribunal have jurisdiction to consider Charter issue?
Decision: Yes. The provisions violate s.15 and should be struck out (explicitly overrules Cooper)
Reasons:
- Tribunals with explicit or implicit jurisdiction to determine matter of law can decide Charter
    issues.
- B/c a tribunal can only render inoperable a provision rather than invalidate it, there is no
    problem with the ROL.
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-  Courts are still the final arbitrators and can review constitutional issues on a standard of
   correctness.
- There is a 4 step approach to determining if a tribunal can consider a constitutional issue:
  1. Does admin tribunal have explicit or implied jurisdiction to decide questions of law arising
     under the challenged provision?
     o Explicit jurisdiction is found in the statutory grant of authority (skip to #3).
     o Implied jurisdiction is to be discerned by looking at the statute as a whole (go to #2).
   They have explicit authority in this case; Cooper they did not)
  2. If not explicit, implied jurisdiction is determined by considering the following factors:
     o Whether the determination of questions of law is necessary to fulfilling the statutory
         mandate effectively;
     o The interaction of the tribunal in question with other elements of the administrative
         system;
     o Whether the tribunal is adjudicative in nature; (but not dominant)
     o Practical considerations regarding the tribunal‟s capacity to consider (complex)
         questions of law. Practical considerations “cannot override a clear implication from the
         statute itself.”
  E.g. Cooper – tribunal, not commission deals with matters of law.
  3. Where there is authority to decide questions of law under a legislative provision, there is a
     presumption of authority to determine the constitutionality of that provision under the
     Charter.
  4. Presumption is rebuttable (by party alleging tribunal lacks jurisdiction) by showing:
            o explicit withdrawal of authority over the Charter in statute.
            o implied legislative intention to exclude authority over Charter (or a category of
               questions that would imply exclusion of Charter, or constitutional questions
               generally), based on the statute itself.

Paul v. British Columbia (Forest Appeals Commission), (2003) SCC – extends Martin outside
Charter in aboriginal context
Facts: A registered Indian cut down trees to modify his home. A forestry official seized the trees
and the petitioner was found to have contravened the general prohibition against cutting Crown
timber pursuant to s. 96 of the Forest Practices Code of British Columbia Act. After an
unsuccessful appeal to the Forest Appeals Commission, the petitioner applied for judicial review
of the commission‟s decision. Judge concluded that the BC legislature had validly conferred on
the commission the power to decide questions relating to aboriginal rights and title in the course
of its adjudicative function in relation to contraventions of the Code. CA allowed the appeal b/c
s.91 (24) of the Constitution prevented the provincial legislature from conferring jurisdiction on
the commission to determine questions of aboriginal rights and title in the forestry context.
Decision: Appeal allowed.
Conclusion: A provincial legislature is constitutionally capable of conferring on a provincial
commission the power to determine questions of aboriginal right and title (usually reserved for
feds) as they arise in the course of the commission's duties b/c they operate in a court like
fashion.

Werbeski v. Ontario (Director of Disability Support Program, Ministry of
Community & Social Services) (Tranchmontagne), (2006) SCC
                                                                                                71


Facts: T and W applied for disability support in Ontario and were denied. They appealed to the
Social Benefits Tribunal. The SBT found that T and W suffered from alcoholism and therefore
they were not entitled to support under the Ontario Disability Support Program Act. T and W,
asserted that alcoholism was a disability under the Ontario Human Rights Code, and argued that
the ODSPA constituted discrimination and was therefore inapplicable because of the primacy of
the Code over other legislation. The SBT found that it did not have jurisdiction to consider the
applicability of s. 5(2) of ODSPA under the HR Code. Div Court upheld the SBT decision. CA
thought that the legislature did not remove jurisdiction to consider the Code from the SBT, and
that the SBT had the power to declare a provision of the ODSPA inapplicable BUT thought the
SBT was not the most appropriate forum in which to decide the Code issue.
Issue: Can the tribunal consider legislation that can render its provisions inoperable? i.e. HR
code. Should they have declined to consider the issue?
Decision: 4:3, tribunal does have jurisdiction and should have considered the matter.
Reasons:
- Legislation explicitly states that SBT is not to consider constitutional issues.
- But the HR code if different from the constitution:
    - When you apply the constitution you are saying the legislation was never validly enacted
        in the first place (legislature didn‟t have that power)
    - When applying the HR code, you aren‟t saying anything about the legislature‟s power. “It
        just so happens the legislature enacted another provision that takes precedence”
Dissent: (Abella)
- Classifies human rights legislation in the same “category of questions” as the constitution.
    The remedial and conceptual similarities between the Charter and the Code are such that the
    legislature has, by clear implication, withdrawn authority to grant the remedy of inoperability
    under either mandate.
Conclusion: The SBT had jurisdiction to consider the Code in determining whether T and W
were eligible for support under the ODSPA. The SBT had the responsibility of applying the Code
in order to render a decision that reflected the whole law of the province.

Substantive review D: Discretion
   Working definition: “an express legal power to choose a course of action from a range of
    permissible options, including the option of inaction. The discretion may authorize
    administrative action, a decision that is aimed at an individual or small group, or the making
    of a rule that will affect a large number.” (text, p. 949-950)
   How much deference do you give a discretionary decision? Take clues from the statute: (part
    of applying the P&F factors)
            o Whether grant is couched in subjective or objective language (subjective = greater
                deference)
                     E.g. CUPE v. Ontario (MoL) – arbitrators who are qualified in the
                         “Minister‟s opinion” subjective, greater deference implied.
            o Nature of the interest affected by the discretionary power
            o Character of decision - political/legislative?
                     E.g. Suresh – national security interests  more deference where more
                         political/policy and where political accountability for decision.
            o Character of decision-maker – expertise? Ministerial?
                                                                                                               72


                     E.g. Vancouver v. Shell (muni council), Suresh (minister)
   Review of discretion pre-Baker – “nominate” grounds – review on “correctness” where a
    decision-maker:
           o acted in bad faith (e.g., Roncarelli v. Duplessis)
           o acts on wrongfully delegated powers
           o fettered its discretion by laying down a general rule and not responding to
              individual situations (i.e., potential problem with guidelines) or by acting under
              the direction of another (i.e., a potential problem with consultations within an
              agency/institutional decision-making)
           o exercised its powers to achieve purposes not contemplated by its grant of authority
              (Shell Cda v. Vancouver)
           o Took into consideration an irrelevant factor in its decision/neglected to take into
              account a relevant factor (e.g., Sheehan, CUPE v. Ontario, Baker


Shell v. Vancouver, 1994, SCC – dissent is key (where we end up in Baker)
Facts: Municipality doesn‟t want to do business with Shell so long as they do business with South
Africa. Shell says this has nothing to do with Vancouver. Vancouver‟s authority to pass
resolution was a broad authority to do things for the good government of Vancouver.
Issue: Did they exceed their jurisdiction by looking at factors that were not for the purpose of the
good government of Vancouver?
Reasons:
Majority (Sopinka)
- The municipality‟s exercise of its statutory powers is reviewable to the extent to which the
    municipality acted within its jurisdiction
- Looks for improper purposes on correctness standard and finds that the resolution does not
    relate to good government.
McLachlin (dissent) – P & F approach (adopted in Baker)
    - More deference needed for municipality b/c: (1) they are elected bodies – political
        accountability; expediency and efficiency (courts have smaller scope fewer people will
        apply for judicial review); municipalities are now playing a larger role in government
        (even if still creatures of statue); more in line with the direction of admin law in general.
    - Applies PU standard and finds the resolution was not outside of the powers i.e. was not
        beyond of what could be captured under the “good government”.
Note: Different than Nanaimo and Rascal Trucking

Baker
 Discretionary decisions should be analyzed using P&F approach:
“Incorporating judicial review of decisions that involve considerable discretion into the pragmatic and
functional analysis for errors of law should not be seen as reducing the level of deference given to decisions of
a highly discretionary nature. In fact, deferential standards of review may give substantial leeway to the
discretionary decision-maker in determining the “proper purposes” or “relevant considerations” involved in
making a given determination. The pragmatic and functional approach can take into account the fact that the
more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner
in which decision-makers have made choices among various options. However, though discretionary decisions
will generally be given considerable respect, that discretion must be exercised in accordance with the
boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the
fundamental values of Canadian society, and the principles of the Charter.”
                                                                                                     73


 courtapplied the P&F approach and came up with a reasonableness simpliciter standard. L‟H-
D found insufficient weight given to the interests of the children.

Suresh, (2002) SCC – P&F approach applied to Minister‟s discretion
Facts: SEE above.
Issue: Ministerial discretion to deport someone who is a danger to the security of Canada even
where there is a possible risk to life, liberty or security of the person (s.7 of the Charter) b/c risk
of torture in country of origin.
Reasons:
- The Minister‟s decision should be deferred to and only interfered with if it is PU.
- Why? Language of the Act (“of the opinion”) suggests deference (intention of Parliament)
    AND
- Factors:
        1. Presence/absence of privative clause negating right of appeal  no privative clause +
            limited right of appeal – suggests deference
        2. Relative expertise of DM  Minister has expertise – suggests deference
        3. Purpose of provision and legislation generally  permit humanitarian balance –
            suggests deference
        4. Nature of question  inquiry is fact based and contextual – suggests deference
- Not the job of a reviewing court to re-weigh the factors.

Discretion & the Charter
-   Two important decision in the 1950s:
         Roncarelli – vindicated freedom of religion from attack by the state through a
            statutory liquor licensing power
         Smith and Rhuland – labour board‟s refusal in it‟s discretion to certify a union b/c a
            senior official was a member of the Communist Party.
   Issues are about methodology and appropriateness of the Charter analysis under the SOR:
    o Should discretionary decisions be subjected to s. 1 analysis?
             Are the prescribed by law? Are such decisions amenable to the Oakes
          proportionality test? Should admin decision-makers incorporate concerns for the
          possibility of review under s.1 into their decision-making process (i.e. address
          importance of objective, proportionality concerns in their reasons)?
    o Should review of discretionary decisions for constitutionality proceed differently from
        review of discretionary decisions on other grounds? (Slaight says yes – jumps straight to
        the Charter consideration)
             Does applying the Charter directly promote better admin decision-making, or is
          the development of admin law principles better served by incorporating “Charter
          values” into the assessment of reasonableness (RS & PU) and correctness?
   Paths for applying Charter to discretionary decisions:
      o Where (potentially) unconstitutional decision is authorized or specifically called for in
          statute (e.g., Paul)  Charter applied to legislative provisions
             Admin body can hear such challenges under Martin & Paul; review of such
          determinations would be on correctness std.
o   Where unconstitutional decision is not authorized by statute  no need to pursue s. 1 of
    decision because it is not „prescribed by law‟ (Charron in Multani, e.g. Little Sisters)
                                                                                                  74


o   Where unconstitutional decision is pursuant to general/broad grant of authority, decision itself
    is subject to Charter analysis, including s. 1.
             Go to Charter analysis directly as opposed to after, or as part of, review under
          appropriate admin law std of review (Slaight, Ross, Multani but Chamberlain, Baker,
          dissent in Multani)

Slaight Communications Inc. v. Davidson, (1989) SCC
- attack on the exercise of remedial discretion rather than the provision creating the discretion.
Facts: Man dismissed from job at radio station. He filed a complaint under the Canadian Labour
Code. The Minister of Labour appointed and adjudicator. Hearing was held. Adjudicator
determined Davidson was dismissed w/out cause. He ordered damages and that a
recommendation letter w/ specific content be written.
Issue: Does the adjudicator‟s order infringe s.2(b) of the Charter? BUT preliminary issue: should
orders be reviewed via admin law standard of review analysis or via the Charter?
Reasons:
Dickson
- Must go straight to Charter analysis.
- A PU decision should also be one that fails a s.1 analysis. The Charter is a stricter standard –
    therefore it is possible to have decision that passes s.1 (higher threshold) but fails PU (lower
    threshold).
- Therefore, can‟t do SOR first b/c if it failed a Charter analysis would not be done and it might
    have passed s.1 even though it failed PU).
Lamer (dissent)
- SOR analysis first.
- After finding PU there is no need to go through Charter analysis. Why? Ousting jurisdiction
    means this decision could not possibly be something “prescribed by law” in s.1.
- S.1 is about justifying limits that are prescribed by law. If fails PU, it is not prescribed by law
    and cannot be justified.

Singh-Multani c. Marguerite-Bourgeoys (Commission scolaire), 2006, SCC – Straight to
Charter, no admin law review
Facts: Sikh student wore dagger to school. The school board proposed a reasonable
accommodation (he could wear it if properly concealed) and parents agreed. School board
refused to ratify the agreement b/c it violated the rules regarding not carrying weapons. The
school board‟s council of commissioners upheld the governing board's decision, but did add that
a symbolic kirpan in another material rendering it harmless would be acceptable. Father sought a
declaration that the decision of the council of commissioners was of no force or effect and that
the student had a right to wear the kirpan to school if it was sealed and sewn inside his clothes. TJ
allowed the motion. CA allowed the school board‟s appeal, although freedom of religion was
violated, it could be justified for safety reasons. Appealed to SCC.
Reasons:
Charron
- No reason existed to apply the administrative law standard of review in the case at bar. It was
    the compliance of the commissioners‟ decision with the requirements of the Canadian Charter
    of Rights and Freedoms that was central to the appeal, not the decision‟s validity from the
                                                                                                   75


   point of view of administrative law.  CA erred in applying the reasonableness standard to
   the Charter analysis.
- The Charter applied to the decision itself, despite its individual nature. Section 1 must apply
   where the decision-maker has acted pursuant to his or her enabling statute, since any
   infringement of a guaranteed right that results from the decision-maker's actions is also a limit
   "prescribed by law" within the meaning of s. 1.
- Where the legislation confers discretion to a decision-maker and does not confer, either
   expressly or by implication, the power to limit the rights and freedoms guaranteed by the
   Charter, the decision should, if there is an infringement, be subjected to the test set out in s. 1
   of the Charter.
Deschamps and Abella (dissent)
- The case at bar would be more appropriately decided by using administrative law review than
   constitutional law justification, for two main reasons.
        First, constitutional justification is designed to assess a norm of general application,
           such as a statute or regulation. The analytical approach developed specifically for that
           purpose is not easily transportable where what must be assessed is the validity of an
           administrative body's decision, even on a human rights question.
        Second, choosing administrative law review averts the problems that result from
           blurring the distinction between the principles of constitutional justification and the
           principles of administrative law, and prevents the impairment of the analytical tools
           developed specifically for each of these fields.
- An administrative decision is not a statute or regulation, but rather the result of a statutory or
   regulatory process in a given situation. The administrative decision-maker should not have to
   justify his or her decision under the Oakes test, which is based on an analysis of societal
   interests and is better suited, conceptually and literally, to the concept of "prescribed by law".

Unreviewable Discretionary Powers
 There are some areas where the government relies on common law powers of the Crown to
   deliver admin programs rather than statute. E.g. Issue and refusal of passports to Canadian
   citizens
 Two reasons why it was thought that such decision were not open to judicial review:
       o B/c role of courts has been to ensure agencies comply with legislative intent, and
           principles of admin law are really about statutory interpretation.
       o B/c most of the prerogatives powers that have survived don not impinge the rights of
           individuals.
 Wilson in dissent in Operation Dismantle Inc. v. Canada and Laskin in Black v. Canada
   establish that it is no longer tenable to shield prerogative powers from judicial review.

Standing
   All about who can bring an application for judicial review.
   Traditionally only the party whose personal rights were at stake or who suffered direct
    damage as the result of the state action could bring an issue before the court;
   Traditionally the Attorney General was considered to be a guardian of public right and as
    such only the attorney general could speak on behalf of the public interest. This eventually
    became unacceptable and a test for allowing others to bring an action in the public interest
    was developed.
                                                                                                   76


   In Finlay, the test for public interest standing was brought into the admin context:
        o Is there a serious legal issue to be tried?
        o Does the person have a genuine interest?
        o Is there another way to bring this before the court?
   The Judicial Review Procedure Act in Ontario is an umbrella statue that regulates standing:
        o the AG can be a party (s.9(4))
        o holds that a tribunal itself may be a party to an action (s.9(2))
                o Why? B/c in judicial review, there usually aren‟t two opposing parties and
                     therefore the DM is in the best position to defend the decision.
                o But the scope of a tribunal‟s participation can lead to problems.
                o The OLD common law rule from Northwestern Utilities was that the
                     tribunal‟s role in an application for judicial review was limited to:
                         1. Explaining the record
                         2. Speaking to jurisdiction (not including natural justice/procedural
                         fairness)
                Tribunal cannot address the merits of the decision b/c: “Active and even
                aggressive participation [by the Board; i.e., presenting detailed and elaborate
                arguments on the merits] can have no other effect than to discredit the impartiality
                of an administrative tribunal either in the case where the matter is referred back to
                it, or in future proceedings involving similar interests and issues or the same
                parties.”
           o Of course this rule limiting participation to jurisdiction was modified as the P&F
                approach began to creep in
                      Bibeault v. McCaffery and Paccar  the tribunal can talk about patent
                         unreasonableness. (just like saying they can consider the merits).

Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), CA, 2005 –
essentially overrules Northwestern (but doesn‟t say this)
Facts: Adult formerly represented by the Ontario Children‟s Lawyer sought disclosure of
documents pertaining to her in their hands. They disclosed some but not others citing various
types of privilege. She appealed to the Information and Privacy Commissioner, who ordered
OCL to disclose most of outstanding records. OCL applied for judicial review. Brought a motion
to refuse or limit standing of commissioner. Judicial review application was dismissed. OCL
appealed on issue of commissioner‟s role in Divisional Court.
Issue: Standing of IPC? Scope?
Decision: Appeal dismissed. Court did not err, allowing the IPC full standing in the judicial
review proceedings assured a fully informed adjudication of the issues without significantly
compromising its impartiality or undermining the integrity of its decision-making process.
CA Reasons:
- Scope of standing was left to judicial discretion and should be made according the specific
    context.
- In considering the scope of standing, court should consider 2 factors:
         How necessary is the tribunal‟s participation to the presentation of
            arguments/necessary for the court to be fully informed?
        “Because of its specialized expertise, or for want of an alternative knowledgeable
        advocate, submissions from the tribunal may be essential to achieve this objective.”
                                                                                                 77


           Will the tribunal‟s participation impugn its impartiality?
        More likely where the matter sent back to the tribunal for reconsideration or where the
        tribunal serves a defined community that appear frequently before it (regulatory contexts).
- The IPC also puts forward a new argument. This would be a problem except the court says
    that on the facts of this case, it is clear from the evidentiary record that the argument was
    there to be made. It is clear there will be no prejudice to the CL.
Conclusion: The circumstances of case were such that IPC‟s impartiality would not be
significantly compromised and integrity of decision- making process would not be undermined
by allowing the IPC full standing in judicial review proceedings.

Remedies
     Common law judicial remedies:
             o Remedies available through prerogative writs:
                       Certiarori – to quash or set aside a decision
                       Prohibition – to order a tribunal not to proceed
                       Mandamus – to order the performance of a public duty
                       Habeus Corpus –          to determine the legality of a
                                  person‟s detention
             +
             o Private law/equitable discretionary remedies of:
                       Declaration
                       Injunction
     The Judicial Review Procedure Act s.2(1) makes all the remedies available in one
      application for judicial review.

Discretion of the Court to Refuse Relief
 Judicial Review Procedure Act s.2(5) allows the court to refuse to grant relief.
 Why have this? To ensure the integrity of the process.
 Court might exercise this discretion when:
          o There are timing and forum issues (when application is premature, where the
               matter has become moot, or where there are alternate routes available through
               which relief is more appropriately pursued). E.g. Harlekin, Canadian Pacific v.
               Matsqui
          o Where there are issues in the conduct of the parties (delay in bringing the
               application, misconduct, or parties waived their rights). E.g. Homex Realty.
          o Balance of convenience/concerns for integrity of administrative process suggests
               that relief should be denied. E.g. Consolidated Mayburn

    Try to keep clear the statutory rights of appeal are NOT the same as judicial review 
    distinct source or remedy to the exercise of authority.


Harelkin v. University of Regina, (1979) SCC
Facts: Student was asked to withdraw from the faculty of social work. His appeal to the
university committee was dismissed w/out a hearing. Instead of pursuing the available right of
appeal to the senate, he applied for certiori and mandamus instead.
                                                                                                   78


Issue: Should the court refuse relief b/c H didn‟t follow the appropriate appeal route?
History: TJ allowed the application. Reversed by CA. Appealed to SCC.
Decision: There was an adequate alternate remedy. Relief refused.
Reasons:
- Must evaluate the adequacy/competence of the statutory appeals process BUT NOT relative
    adequacy/competence to the court.
- An appeal to the senate committee was an adequate alternative remedy: the committee was
    required to hear the appellant; the appellant was not entitled to assume that he would not
    receive a fair hearing; and this remedy was more convenient for both the appellant and the
    respondent in terms of cost and of expeditiousness.
- The statutory right of appeal is a clear signal of legislature‟s intent to have courts exercise
    restraint in intervening.
Dissent: (Dickson)
- Here he tries to narrow discretion and applies a rule bound approach (contrary to his usual
    principled approach). Why? He is concerned for the rights of the particular applicant.
- “An appeal is not a remedy for a failure of NJ in the first place”

Canadian Pacific v. Matsqui, (1995) SCC
Facts: Indian reserve property tax assessment system. CP and United each had land and applied
to the Federal Court for judicial review of the assessment claiming the bands lacked jurisdiction
to impose tax because the land was not on the “reserve”. The assessing bands moved for an order
striking out the application which was allowed because the companies had an alternative remedy
– to use the relevant appeal regime. CP and United appealed and the appeal was allowed. The CA
justified its interference with the motion judge‟s discretion on the basis that direct access to the
Federal Court was a more appropriate vehicle for testing validity of assessments.
Reasons:
- Majority combines on Betz approach from Matsqui.
- On the basis of [considering the alternative remedy doctrine], I conclude that a variety of
    factors should be considered by courts in determining whether they should enter into judicial
    review, or alternatively should require an applicant to proceed through a statutory appeal
    procedure. These factors include:
         the convenience of the alternative remedy,
         the nature of the error,
         and the nature of the appellate body (i.e., its investigatory, decision-making and
             remedial capacities). I do not believe that the category of factors should be closed, as
             it is for courts in particular circumstances to isolate and balance the factors which are
             relevant.
- The discretionary determination made by the Federal Court, Trial Division should be
    respected by an appellate court unless the judge considered irrelevant factors, failed to
    consider relevant factors, or reached an unreasonable conclusion.
Conclusion: It was not unreasonable for TJ to conclude that the appeal tribunal was an adequate
forum.

   Court doesn‟t look kindly to resorting to judicial review when there are statutory rights of
    appeal present.
                                                                                                79


Pre-maturity
- Pre-maturity involves an assertion by the court that, while the applicant may potentially have
   a good cause of action, the matter is inappropriate for judicial intervention at present.
- Number of reasons why this might be so e.g. the matter might be resolved internally w/out the
   need for court intervention.
- Why might it be better to let a tribunal deal with the issue first? Comparative expertise; build
   an evidentiary record to assist subsequent decisions.

Mootness
- On occasion, by the time an application for judicial review comes on for a hearing or more
  commonly, by the time it reaches the appropriate CA or the SCC, the dispute will have ceased
  to have practical significance for the applicant. E.g. Cardinal – inmates already been released
  from prison.  Always raise questions of whether the court should proceed with the matter.
- General principles laid down in Borowski, (1989) SCC: “The doctrine of mootness is an
  aspect of a general policy or practice that a court may decline to decide a case which raises
  merely a hypothetical or abstract question. The general principle applies when the decision of
  the court will not have the effect of resolving some controversy which affects or may affect
  the rights of the parties. If the decision of the court will have no practical effect on such
  rights, the court will decline to decide the case. This essential ingredient must be present not
  only when the action or proceeding is commenced but at the time when the court is called
  upon to reach a decision.”
- Sopinka in Borowski identified situations where it might be appropriate to depart from the
  doctrine: where there were still collateral consequences; where the issue at stake is of a
  recurring nature; where there remains a public interest in the resolution of the issue raised. In
  all these situations, the need to deal with issue in a true adversarial context must be weighed.

Delay
- Delay in commencing proceedings may either go the jurisdiction or discretion of the
   reviewing court.
- Failure to adhere to mandatory limitation statues will prevent a court from considering a case.
   However, even if the is no limitation period, courts may occasionally deny relief to the
   applicant on the grounds of undue delay (the doctrine of laches).
- There is a question as to what relief is still available once a limitation period expires.
- In Homex Realty, (1980) the SCC held that the ON Municipal Act and the JRPA provided
   alternative remedies.
- Can subordinate legislation or rules of court impose a limitation period?

R. v. Consolidated Maybrun Mines, (1998) SCC – collateral attack
Facts: Ministry of the Environment issued order for cleaning and storage of contaminants against
accused and informed them of right to appeal under Environmental Protection Act (EPA) to
Environmental Appeal Board (EAB). The accused ignored order and did not appeal. Maybrun
was charged and at trial submitted by way of defence that the order was invalid and that there
was no reasonable and probable grounds to believe that the situation constituted environmental
risk. TJ convicted the accused. Ontario Court and the CA held that TJ had exceeded his
jurisdiction by reviewing the validity of the order.
                                                                                                      80


     Issue: Can CM collaterally attack the first decision or are they precluded b/c they did not exercise
     their right of appeal?
     Decision: Collateral attack is not available.
     Reasons:
     - Collateral attack cannot be ruled out completely. It may be available – legal authority for
         penal orders to be challenged must be preserved b/c the opportunity to challenge the authority
         of an act is part of the ROL.
     - BUT it won‟t allow you to choose your own forum
     - Five factors must be considered in determining whether the court could rule on the validity of
         the administrative order collaterally attacked in the penal proceedings:
                   the wording of the statute,
Looks a lot        the purpose of the legislation,
like a P&F         the availability of the appeal,
approach!          the nature of the collateral attack
                   and the penalty on conviction.

    Misconduct
    - On occasion the court will deny a remedy b/c of the way in which the person seeking relief
       has behaved. The maxim of “whoever comes to equity must comes with clean hands” has
       been imported into the law of prerogative remedies. E.g. mandamus to compel building
       permits.

    Homex Realty v. Wyoming (Village), 1980, SCC
    Facts: The Village passed a by-law deregistering a plan of subdivision of land owned by H after
    prolonged negotiations as to the installation of services pursuant to a subdivision agreement.
    Notice of the passing of the by-law was not specifically required by statute and no notice was
    given to H. H wanted to convey subdivision lots without installing services as required by the
    agreement, and leave the cost of providing the services to the Village. H therefore applied to the
    Court for an order quashing the by-law. CA held the by-laws were valid.
    Issue: Principles governing the discretion to grant/decline certiorari.
    Reasons:
    - “The principles upon which certiorari, and now the modern order in judicial review, have
        been issued have long included the principle of disentitlement where a Court, because of the
        conduct of the applicant, will decline the grant of the discretionary remedy.”
    - H has sought to avoid the burden associated with the subdivision and has taken inconsistent
        and contradictory positions.
    - It sought, after applying to quash the by-law, to put its lands beyond regulation by
        checkerboarding.
    - Council's motive throughout was to protect its constituents from an expense which had been
        undertaken by H.

       Cases where the person has defied an admin ruling that was later established to have been
        made improperly:
           Re Slau (1976) – mandamus granted to compel issuing of building permit that was
           wrongfully refused.
       Conduct may also be relevant to the choice of remedy
                                                                                                81


       Bellechasse Hospital (1975) – employee wrongfully dismissed entitled to damages but
       his conduct made it impossible for mandamus, his reinstatement, to be granted.

Waiver
 On occasion relief may be denied on the basis of waiver or acquiescence. Most common
  where the defect complained of is a breach of the rules of natural justice or bias.
  Halifax-Dartmouth Real Estate Board – failure to object to lack of notice was an alternate
  ground for denying relief.
 A breach of the rules of natural justice may be a category of jurisdiction error  this leads to
  theoretical problems with using waiver to deny relief in such a case since jurisdiction cannot
  be conferred on statutory authorities by consent or acquiescence.

Balance of Convenience
- E.g. Refusal of relief b/c alternate recourse available
- E.g. Whether the applicant‟s misbehaviour should disqualify them from relief
- E.g. Seeking to prevent further processing of an action until the merits of an application for
   judicial review can be dealt with
- E.g. Refusal of relief even where PF was violated b/c the outcome would have been the same
   anyway (rejected in Cardinal, accepted in exception cases in Mobile Oil – merits of the legal
   issue must also be before the tribunal)

								
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