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									A Brief History of Canadian Administrative Law
        A Summary - Short Form Manuscript
Table of Contents
1     Procedural Fairness................................................................................................................. 3
    1.1     Three-Pronged Fairness Test (1st CL Trigger) ................................................................... 3
      1.1.1        General Comments on 3-pronged test ..................................................................... 3
    1.2     Legitimate Expectation (2nd CL Trigger) ........................................................................... 4
      1.2.1        Legislative VS Administrative Decisions .................................................................... 5
    1.3     Emergencies ..................................................................................................................... 7
    1.4     Canadian Charter of Rights & Freedoms Procedural Requirements ............................... 7
    1.5     Bill of Rights Requirements .............................................................................................. 9
2     Content of Procedural Fairness ............................................................................................ 10
    2.1     Audi Alteram Partem (1st Prong of Procedural Fairness Test) ....................................... 11
    2.2     Nemo Judex (2nd Prong of Procedural Fairness Test) .................................................... 15
      2.2.1        Personal Bias ........................................................................................................... 15
      2.2.2        Institutional Bias ..................................................................................................... 16
3     Ontario Statutory Procedures Act (SPPA) ............................................................................. 17
4     Substantive Review ............................................................................................................... 18
    4.1     Who Exercises Control / Procedures to be Followed..................................................... 18
      4.1.1        Judicial Review Procedures Act (Ontario) ............................................................... 18
      4.1.2        Federal Court Act (Federal) ..................................................................................... 20
    4.2     Grounds for Review ........................................................................................................ 22
    4.3     Distinction between jurisdictional and non-jurisdictional errors of law ....................... 23
    4.4     Errors of Discretion ........................................................................................................ 24
    4.5     Error of Fact .................................................................................................................... 25
    4.6     Dunsmuir ........................................................................................................................ 25
5     Remedies............................................................................................................................... 26
    5.1     Prerogative Writs (FCA discusses these) ........................................................................ 26
      5.1.1        Certiorari ................................................................................................................. 26
      5.1.2        Prohibition .............................................................................................................. 26
      5.1.3        Mandamus .............................................................................................................. 27
      5.1.4        Habeas Corpus ........................................................................................................ 27
      5.1.5        Quo Warranto ......................................................................................................... 27
    5.2     Ordinary Remedies ......................................................................................................... 28
      5.2.1        Declaration .............................................................................................................. 28

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  5.2.2     Injunction ................................................................................................................ 28
5.3   Discretion to Decline Remedies ..................................................................................... 28
5.4   Remedies under FCA ...................................................................................................... 29
5.5   Public Inquiries ............................................................................................................... 30
  5.5.1     Ontario Public Inquiries Act .................................................................................... 30
  5.5.2     Federal Inquiries Act ............................................................................................... 30




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1 Procedural Fairness
1.1 Three-Pronged Fairness Test (1st CL Trigger)
From Knight v. Indian Head
1- The nature of the decision to be made by the administrative body;
    Legislative decisions do not have a duty to act fairly (legislative and general nature) as
      opposed to administrative and specific nature which requires a duty to act fairly.
          o i.e. the process by which regulations are made are not subject to procedural
              fairness
    Generally, a decision of a preliminary nature will not trigger procedural fairness. The
      more final the decision, the more fairness will be required.
2- The relationship existing between that body and the individual;
    Employer-employee relationship in this case. The employer is a public body exercising
      statutory power, so this is why we are concerned.
          o i.e. ‘employment during good behaviour’ – must have just cause to dismiss
          o i.e. ‘employment at pleasure’ – can dismiss without cause – purely discretionary
    See Dunsmuir since it changed test for employment contexts
    All we are concerned with, is whether the body is exercising a power stemming from a
      statute or prerogative power
3- The effect of that decision on the individual's rights
    Decision made has to be significant and have an important impact on the individual
          o Like in OZ: Must affect rights, interests, etc

NB:
      -   If the statute specifically excludes procedural fairness, then the court has no choice but
          to follow the legislature’s intent.
               o The court will be looking for something express by the legislature or by necessary
                   implication (CL being displaced – i.e. statute sets out its own procedure)
      -   So for Knight, the 3 prong test triggers procedural fairness and the statute doesn’t
          prohibit it. Because Knight could be dismissed at pleasure, the court finds that the
          procedural fairness required is minimal and it was met in this case.
      -   A minimal standard is notice and opportunity to be heard. Notice to include reasons for
          dismissal and some sort of a discussion about it. That is sufficient.


1.1.1 General Comments on 3-pronged test
1. The nature of the decision to be made by the administrative body (preliminary decisions vs.
    final decisions)
Re Abel (Preliminary decisions)
“Fairness should apply where the decision affects the rights, interests, property or liberties of
any person..” This is an exception to the general rule, even though it’s a preliminary decision,
procedural fairness is required (serious consequences of preliminary decision). So where a
preliminary decision is likely to end up being the final decision, procedural fairness should apply


                                                  3
Re Irvine (Preliminary decisions)
“Where the investigation is conducted by a body with powers to determine, in a final sense or
in the sense that detrimental impact may be suffered by the individual, the courts are more
inclined to intervene”. The court also finds that some procedural fairness should apply because
the director in some sense is determining facts by their procedures.

2. The relationship existing between that body and the individual
Private voluntary organizations
There are instances where courts have applied quasi-administrative law principles to private
organizations. (i.e. clubs and political parties)
3. The effect of that decision on the individual's rights
    - Meaning of “rights” (not necessarily pre-defined legal rights)
    - Interpreted much more broadly than just “rights”
    - Low threshold
    - Fairness exists where rights, interests, property or liberties of the person affected by
         delegate’s actions
Kelly case
Kelly is denied passport, this is an administrative decision not legislative. Further, the
relationship is employer-employee and it’s an interest being affected (employment interest).
Kelly is promised by chair that he will “be happy with the decision” and that he will have 4 days
notice before a hearing. This is not a very clear promise, Kelly can’t rely on that since it’s
substantive not procedural. 4 days notice: it’s a clear, unambiguous promise.


1.2 Legitimate Expectation (2nd CL Trigger)
Basically you can also get procedural fairness if there’s a legitimate expectation of being treated
fairly (i.e. public official to keep their word). If you have a delegate make such a promise, can
you make them fulfill it?

Old St. Boniface - Court refers to Hong Kong v. Ng Yuen Shiu
When a public authority had promised to follow a certain procedure, it is in the interest of good
administration that it should act fairly and should implement its promise, so long as
implementation does not interfere with its statutory duty.

NB: Where subject matter of promise already covered in statute, some supplemental promise
made by delegate not binding
Gaw v. Corrections
Another penitentiary case, an employee charged with sexual assault, was promised an
opportunity to be heard, present witnesses, etc. Employee is later denied opportunity,
corrections wanted to expedite the matter. “When a public authority has promised to follow a
certain procedure and an interested person relied and acted upon that promise, it is not in the
interest of good administration nor is it in the interest of fairness, to disregard that promise and
to deal with that person by way of a procedure different from the one the public body
committed itself to follow”.

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Elements:
   - A promise in relation to procedure
   - Reliance on the promise by the interested person (must be actual reliance)

Furey
A school was closed without any notice and parents go to court saying that guidelines were not
followed, that they were not given public notice. Court said that, since the board in the past
had used the guidelines for school closing decisions, they should apply. On appeal, decision was
reversed since court found there was no reliance. Where an official guarantees an outcome
rather than a procedure, legitimate expectation would not apply: “legitimate expectation
creates procedural, not substantive rights”.

Libbey v. Ontario
There must be a promise in relation to procedure and detrimental reliance. For there to be a
legitimate expectation, there has to be a clear and unequivocal representation by the
government authority.

CUPE v. Ontario
Minister announces he was changing system of decision making. CUPE challenges saying the
minister promised to revert back to old practice. Legitimate expectation by a public authority in
the exercise of a discretionary power – “be characterized as clear, unambiguous and
unqualified, that has induced in the complainants a reasonable expectation that they will retain
a benefit or be consulted before a contrary decision is taken.” - Binnie

Legitimate expectation will arise if:
1- A promise or representation from a delegate (clear, unambiguous)
2- To proceed in a certain fashion (procedural in nature, not substantive)
3- Resulting in detriment when promise is broken to a person who relied on the promise

This does not apply to:
- Legislative decision (rule-making and broad policy making)
- Promises that conflict with statutory duties


1.2.1 Legislative VS Administrative Decisions
Like in OZ, procedural fairness doesn’t apply to legislative decisions, only administrative ones.

Martineau
“A purely ministerial decision, on broad grounds of public policy, will typically not afford the
individual procedural protection, and any attack upon such a decision will have to be founded
upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be
amenable to judicial supervision”


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Re Smith
A legislative act is the creation and promulgation of a general rule of conduct without reference
to particular cases; an administrative act is the application of a general rule to particular cases.

Inuit Tapirisat
Where the executive has been delegated a legislative function, and it’s not aimed at particular
cases, there is no ground on which the common law should supply procedural fairness.

NB:
- Rulemaking and discretionary powers are not subject to procedural fairness
- Discretion exercised by Cabinet not subject to procedural fairness (NAPO)
- Certain sort of broad, policy-based discretion are excluded from procedural fairness (NAPO)

Canadian Shipowners Associations
The more personal the issue, the more likely Cabinet’s power of review is to lose its legislative
nature and the more the principle of fairness mentioned in Nicholson becomes applicable.

Vancouver Island
Matters of public convenience and general policy are final and not reviewable in legal
proceedings. The more broadly based policy decisions, the less susceptible to procedural
fairness requirements. Definition of “Legislative”: “*T+he decision must be discretionary, usually,
but not always, general in its application, based on the exercise of judgment after assessing
factors of general policy, of public interest and public convenience, morality, politics,
economics, international obligations, national defence and security, or social, scientific or
technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or
methods of the courts."

Sunshine Coast
Court finds that the board is exercising a broad policy decision and thus it is legislative and
legitimate expectation does not apply to legislative decisions. While the case would normally
end there, the Court finds that because the board themselves imposed a constrained regulation
on itself (mandatory consultations) they should be bound by that. In effect the board has
constrained its own legislative power. So, legitimate expectation should attach. At the end of
the day, the parents end up losing because they weren’t aware of the consultation guidelines
and therefore there was no detrimental reliance and there could not have been legitimate
expectation.

So basically a legislative decision entails:
- Broad, policy-based power
       o Usually discretionary, general in application, based on exercise of judgement
            considering general policy (Vancouver Island)
- Rule-making
       o A narrowly focused (private convenience rule-making will require PF (NAPO)
                 But note if parliament makes decision, it won’t apply because of privilege

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1.3 Emergencies
PF won’t apply where it’s an emergency and decision-maker must act quickly and procedural
standards will have to be set aside (Re Walpole Island First Nation)

Kelly case
Kelly goes to airport and attempts to pay at an automatic ticket machine which doesn’t work,
he goes to see the counter and asks for help, employee sees that Kelly is flagged, calls an official
who makes an emergency decision not to allow Kelly to fly. Was s 4.76 (no idea which act this
was from) discretionary? It can be done by another official other than the minister per s 4.77.
The way Passenger Protect works is that you only find out when you check in at the airport, but
Kelly could argue he was given no notice (the act doesn’t provide for notice or opportunity to
comment).
Steps:
- Final decision? Yes
- Admin v. Leg? Admin
- Personal Interest? Yes
- Emergency? Good chance that argument wouldn’t hold up


1.4 Canadian Charter of Rights & Freedoms Procedural Requirements
S 7 state that everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof, except in accordance with the principles of fundamental justice".

-   Everyone means all persons within Canada
       o Does not apply to corps, however corps can advance a s 7 argument because no one
           should be charged under an unjust law. Corporations can stand in the place of
           humans in these situations
-   Must be a deprivation of life, liberty and security of the person
       o Does not include pty rights
       o Could include barring a person from practicing their professions (courts are divided
           on this)
       o Barring a person from flying? Probably not, can still bus, train
       o Could be very serious reputational harm (Blanco) but must be causally related
-   Except in accordance with principles of fundamental justice
       o In violation of principles of fundamental justice: this is a due process protection
           guaranteeing common law procedural guarantees (in a broad sense it gives you a
           right to be heard, unbiased adjudicator)
       o Difference is that Charter can override statute whereas common law can’t
                With the exception of a s.1 override

Howard



                                                 7
There is no common law procedural standard of fairness entitlement in the prison disciplinary
context. Does s. 7 apply? Yes, s. 7 is triggered because liberty is at stake.

Fundamental justice: some procedural standards should apply – “what that may require will no
doubt vary with the particular situation and the nature of the particular case.” S. 7 does not
create an absolute right to counsel; it’s variable, depends on the factual situation: “…what is
required is an opportunity to present the case adequately; “*It+ will depend on the
circumstances of the particular case, its nature, its gravity (seriousness of the consequences), its
complexity, the capacity of the inmate himself to understand the case and present his defence.
The list is not exhaustive.”

Gallant
Prisoners accused of committing extortion, etc, wanted to know who informants were so as to
have a proper defence. The emergency situation shows that information on informants could
not be given for safety reasons and procedural fairness rules could not apply (emergency
situation). Therefore Warden’s decision cannot be quashed on grounds of common law
procedural fairness. Another way that this could have been approached is to say it’s not an
emergency situation so procedural fairness is owed but in these circumstances it does not
extend to revealing the identity of the informants. S.7 triggered? Yes, a transfer of a prisoner to
a higher security prison is movement to a prison within a prison: this further deprives the
prisoner of his or her liberty.

Fundamental justice: the procedural rules that are part of the principles of fundamental justice
do not differ in substance from the rules of natural justice and of procedural fairness.
       o Depends on circumstances of the case, gravity etc.
       o Parliament is not free to constrain s.7 or negate its application, in the absence of a
           s.1 justification. (unlike common law procedural fairness)
       o The court finds that s.7 has been breached because prisoners were given no
           opportunity to answer the charges against them, but s. 1 would justify the actions of
           the warden and thus justify the violation of s.7.

Singh
Scheme of the Act: Act excludes possibility of oral hearing – so Act trumps common law
procedural fairness. Charter s.7 triggered? Yes, security of the person – risk of torture upon
deportation. Even if the Canadian gov’t would not be torturing the man himself, they would be
putting him in the path of peril

Fundamental justice: at the very least, fundamental justice includes the notion of procedural
fairness
        o Oral hearings not required all the time - depends on the seriousness of the case:
              Oral hearing are required where serious issues of credibility are involved:
        o So Wilson J. finds that oral hearings will always be required in refugee hearings. S. 7
          has been violated and is not justified under s.1.
        o The act didn’t provide for an oral hearing, so the act is declared invalid

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Dehghani
Charter s.7 triggered? Yes, potential of depriving a person of their security of the person

Fundamental justice: it includes at a minimum the notion of procedural fairness and will vary
depending on the circumstances.
        o Issue: Does fundamental justice require counsel in this case? (in an airport
           examination): No. Fundamental justice does not require that the appellant be
           provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim
           determination process.
NB: the thinking here is that with more procedural fairness (here, more lawyers), the efficiency
of the process is severely hampered

Steps for CCRF to apply:
   1. Deprivation of life, liberty or security of the person
   2. If so, you can fundamental justice
           a. At the very least that means PF or NJ
           b. Precise content will vary depending on circumstances
   3. Caveats
           a. Fundamental justice is constitutional
           b. FJ may demand more than PF


1.5 Bill of Rights Requirements
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
S. 2: …no law of Canada shall be construed or 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

NB for s 1(a):
- It only applies to federal statutes!
- Only individuals can rely on it
- Trigger is: deprivation of life, liberty and security to the person and enjoyment of pty
       o Aka can apply when CCRF doesn’t regarding pty
- Procedural guarantees that must be met: due process of law

Smith, Kline & French Laboratories
“Due process requires, in addition to a fair hearing, a total process which provides, for the
making of a decision authorized by law, a means for rationally relating the facts in the case to


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criteria legally prescribed by Parliament”. Cannot use s.1(a) to attack the legislature itself.
Requires a decision to be rationally related to the facts.

NB for s 2(e):
- Persons and juridical persons can apply for this, so corps are included
- Trigger is: when rights and obligations being determined (initially it had to be a true or legal
   ‘right’ but this changed with Singh. Now, what matters is a strong ‘interest’ in the outcome.
- Procedural guarantee that must be met: fair hearing in accordance with the principles of FJ

What does this mean?
- It’s not a fixed standard. It varies according to the nature of legal rights at issue and severity
  of consequences to the individuals concerned (Singh)
- Federal Court of Appeal, Canada v. Central Cartage (1990): “The fair hearing guaranteed in
  paragraph 2(e) of the Bill of Rights is not a frozen concept that remains static. … In other
  words, the guarantee of a fair hearing in paragraph 2(e) should be given a meaning that
  recognizes not only the interpretation and evolution of the term over time but also the
  particular circumstances involved.”
- Cases have shown that this may include: unbiased decision-maker; meets common law
  procedural fairness standards including notice and right to be heard.
- No notice would violate the principles of fundamental justice (785072 Ontario Inc v.
  Canada)



2 Content of Procedural Fairness
-   The content of the principles of natural justice and fairness in the application of individual
    cases will vary according to the circumstances of each case (Martineau)
-   “The requirement of natural justice always remains the same: that the person concerned be
    given a fair opportunity to be heard. The consequences of the application of this basic
    requirement vary, however, with the circumstances”. (Gallant)
-   The more the delegate's decision making function looks like a criminal or civil proceeding,
    the more the courts will insist on a strict array of procedural protections
-   The more significant the rights or interests affected, the more likely the courts are to
    require a higher level of procedure
-   The procedural rules imposed should be applied so as to not frustrate a delegate's attempts
    to carry out its statutory obligations
        o This can be seen even in a section 7 context

So, in essence, the Baker test for the PF content is:
1- Nature of the decision and the process followed in making it
2- The nature of the statutory scheme
3- The importance of the decision to the affected party
4- Any legitimate expectations of the party
5- The choice of procedure made by the agency itself

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2.1 Audi Alteram Partem (1st Prong of Procedural Fairness Test)
Definition: delegates must always give a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement prejudicial to those parties
(so basically notice and opportunity to respond).
 For the “right to be heard” to be real:
        o There is a duty on all delegates who are subject to procedural fairness to give
            sufficient notice of the decision
        o In giving notice, there must be enough detail about the decision and the arguments
            and evidence that interested parties can make a meaningful submission of their own
            (have to know enough to be able to respond intelligently)
        o Interested parties must have an opportunity to make submissions

Central Ontario Coalition
Triggered because property rights and interests of public affected; notice was given to people
originally affected by a transmission plan, but plan changed and came to affect other people in
the end who were not affected. Test of whether notice adequate (objective): notice had to be
reasonable (reasonable person standard).
This means that: must give accurate description of the true nature and scope of the decision,
must be timely (sufficient notice time given), failure to give adequate notice can void the
delegate’s decision

Notice requirement
 Must give accurate description of the true nature and scope of the decision (see e.g.,
   Crevier Commission case)
 Must be timely
 Failure to give adequate notice can void the delegate’s decision

Disclosure requirement
 What sort of notice: variable, depends on circumstances
Ciba Geigy
“The party to whom the hearing relates must be provided with a level of disclosure and
production which ensures that the party is fully informed of the case to be made against it. The
procedure followed must provide the party to whom the hearing relates a reasonable
opportunity to meet that case by bringing forward its own position and by correcting or
contradicting any statement or evidence related to the case which is prejudicial to its position.”
“in matters of the disclosure and production of information and documents in the context of a
public hearing, the Board must balance its duty to give every opportunity to a Respondent to be
heard against its responsibility to ensure that its orders do not have the effect of limiting its
ability to discharge its responsibilities in the public interest on an ongoing basis”
 At trial: “To require the Board to disclose all possibly relevant information would unduly
    impede its work from an administrative viewpoint. Where the delegate is performing a
    regulatory function with no power to affect right, there is no strict disclosure requirement.”

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  Appeal: the consequences to Ciba are serious from an economic perspective, but this sure
   isn't a criminal proceedings
 leeway to be given an administrative tribunal with economic regulatory functions
Ferndale case
Inmates wanted variables that went into program which determined their security risk and thus
where they would be held. SCC said it had to be disclosed, saying without it they could not
make a meaningful response. This decision since it concerns people being incarcerated

Delay & abuse of process
 Unacceptable delays may at some point amount to an abuse of process, even when the
   fairness of the hearing process itself has not be compromised
 Delay must be so oppressive as to taint the very proceeding (and the delay must be causally
   related to the oppression)

Nature of hearing
 Examples from the caselaw: Oral hearings more likely where:
       o the credibility of the parties is a factor in the outcome
       o the affected person's level of education or lack of familiarity with the proceedings
           affects his or her ability to make written submissions
       o Charter or Bill of Rights interests are at stake

Right to counsel
 No universal right to representation in oral hearings before delegates
 Counsel more likely to be required by procedural fairness:
        o the more complex the legal issues, the more likely a court will require counsel
        o the more serious the consequences, the more likely the court will require counsel
        o the less capable the person is of representing themselves, the more likely the court
           will require counsel
Smith
Counsel not required in parole matters as part of common law procedural fairness. Counsel
required by fundamental justice (Charter right - s.7)

Witnesses
Where credibility is at issue or where conflicting evidence is presented
 Who can call witnesses?
      o Re Ladney - There must be parity – if one side has had the opportunity, the other
          side must be accorded the same right.
 Cross-examination of witnesses
      o Innisfil “…it is not a necessary ingredient of natural justice….provided that the
          evidence is disclosed and an adequate opportunity is given to reply to it”
      o There is no absolute right to cross-examination.
      o Cross exam generally occurs in adversarial proceedings where credibility is at issue



                                              12
   Armstrong v. Canada: the right to cross-examine...is not an absolute right. Where a statute
    is silent on the right to cross-examine, courts will generally be reluctant to impose upon a
    board their procedures and technical rules of evidence

Evidence
 Delegates need not apply strict rules of evidence, unless required by statute/regs
 Generally rules of evidence in an administrative setting are more relaxed because it’s not
    court and because lay people are involved.
       o Evidence – must support facts or the bottom line
       o Admissibility – the evidence has to be relevant
       o Weight – hearsay evidence is generally allowed but will depend on the gravity or
           seriousness of the decision or affect on the person
                Bond case – relying 100% on hearsay where consequences are serious (here
                  job loss) is not permissible
 Burden of proof – default is balance of probabilities
       o Clear and convincing evidence (sometimes used in disciplinary matters, i.e. lawyers
           being disbarred); generally set by statute

Reasons
 To provide an opportunity for appeal; how else could you know how a decision was made?
 Even more important where there is a statutory right of appeal
 Is there a duty to give reasons?
       o No absolute right to receive reasons

Canadian Arsenal - In the absence of legislation to the contrary, courts of law, quasi-judicial and
administrative bodies are not required to give reasons for their decisions.

Baker
Citizen of Jamaica living in Canada and has overstayed her permitted time, she was to be
deported but the problem was that she had Canadian-born children with health problems. She
asked for an exception to the need to apply for permanent residence from outside of Canada
for humanitarian and compassionate grounds. Issue is taken to SCC for absence of oral hearing
and failure to give reasons. Held: PF is flexible & variable and depends on the context, several
factors relevant in determining the content of the duty (per test outlined above)
 Nature of the decision being made & process followed
 Nature of the statutory scheme
 Importance of the decision
 Any legitimate expectation
 Choice of procedures selected by agency, etc.

What is required here?
“The claimant and others whose important interests are affected by the decision in a
fundamental way must have a meaningful opportunity to present the various types of evidence

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relevant to their case and have it fully and fairly considered.” “It is now appropriate to
recognize that, in certain circumstances, including when the decision has important significance
for the individual, or when there is a statutory right of appeal, the duty of procedural fairness
will require a written explanation for a decision.”

He or she who hears must decide
 Corollary of the right to be heard is the right to have it decided by those to whom it was
    presented
 The whole purpose of the right to present one's case is defeated if the decision is made or
    influenced by persons who have not heard the evidence and argument
Patel
First visa officer heard submissions and made a decision. First officer was later transferred and
second officer relied on first officer’s notes to make a decision; court finds that the second
officer never heard the submissions of Patel and only used the first officer’s notes. This taints
the decision and violates procedural fairness. Patel had a right to be heard by the decision-
maker.

IWA (Consolidated Bathurst)
Board normally sits three, board had a full board meeting (approx 50 people) to discuss policy
issues of decision; no vote was taken, no attendance taken. The full board meeting was an
important element of a legitimate consultation process and not a participation in the decision
of persons who had not heard the parties. For the purpose of the application of the audi
alteram partem rule, a distinction must be drawn between discussions on factual matters and
discussions on legal or policy issues.

Ellis-Don
Draft decision favoured company, then a meeting took place with full board (like IWA) and
decision then no longer favoured company. The mere fact that issues already litigated between
the parties were to be discussed again by the full Board would not amount to a breach of the
audi alteram partem rule. It would only be a problem if there was a reassessment of the facts,
without the parties having a chance to comment. Court concludes that there was no
reassessment of the facts, but the change in the decision was due to policy considerations.
Difficulty on the part of company’s council is how would they ever know if the facts were
discussed if there were no minutes of the meeting.

   Use of lawyers and staff:
       o A tribunal is generally free to use a lawyer unless this practice is prohibited by
            statute. However, the lawyer's involvement must not create the impression that he
            or she had taken over the hearing and become the effective decision-maker.
       o Courts are more sympathetic to tribunals with a very large caseload, but there is an
            outer limit




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2.2 Nemo Judex (2nd Prong of Procedural Fairness Test)
Definition: You have the right to an unbiased decision-maker which involved two components:
   1- Personal bias: partial state of mind
   2- Institutional bias: lack of independent institutional arrangements


2.2.1 Personal Bias
Only a Reasonable apprehension of bias is necessary – National Energy Board
National Energy Board [test]
 “...the apprehension of bias must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the 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 [or she] think that it is more likely
than not that [the decision-maker], whether consciously or unconsciously, would not decide
fairly."
 Is this test always applied robustly, or does it vary depending on who the delegate is and
     what they do?

Old St. Boniface
Policy questions are always prejudicial, some degree of pre-judgment is inherent. Test: has the
decision-maker closed his mind to the extent that he can’t be persuaded otherwise?
Reasonable apprehension of bias at one end, and the closed mind standard at the other. The
lax standard does not apply when a politician has a potential pecuniary bias, in that case the
more robust standard applies

Save Richmond
A member of a municipal council is not disqualified by reason of his bias unless he or she has
prejudged the matter to be decided to the extent that he or she is no longer capable of being
persuaded. In this case, he came out and said: “there is nothing that will change my mind”

Newfoundland Telephone
Adjudicative bodies are expected to comply with the bias standard applicable to courts: no
reasonable apprehension of bias with regard to their decision. Boards with popularly elected
members or Policy boards have a lower standard of impartiality. Bias would have to be
prejudgment to the extent that any representations to the contrary would be futile. Before a
hearing, it would be reasonable for members to express their views. But during the hearing it is
no longer reasonable. During that time, a reasonable apprehension standard will be applied.

   Examples of bias
-   Statements suggesting prejudgment/bias
-   Personal relationships
-   Past involvement
-   Pecuniary interests


                                               15
Sparvier
Strict standard of reasonable apprehension of bias: A reasonably informed bystander would
perceive bias on the part of the Tribunal and this fatally affected the decision, even though the
biased person did not actually vote on it (he just was involved in the deliberation)

Spence
A mayor, in capacity as a chair of an adjudicative commission, met with a witness before a
hearing took place. Even though it was a politician, the reasonable apprehension of bias was
chosen because it was in his capacity as an adjudicator. A person accused is entitled to have
their cause determined by an impartial tribunal which is untainted with the knowledge of facts
or with a predisposition to a particular point of view which might affect the result. A breach of
the rule against bias will generally result in the statutory delegated authority losing jurisdiction
and will render the administrative action void and subject to judicial review. A reasonable well-
informed person would have a reasonable apprehension of bias

Dulmage
A strip search is done in violation of regulations, a challenge is brought forward and panel
member deciding case is an executive member of the Congress of Black Women of Canada of
Missassauga. A member of the Toronto Congress of Black Women of Canada makes comments
showing bias, court says that reasonable apprehension applies is the applicable test: they found
that there was.

Energy Probe
The board member's interest was indirect and uncertain and too remote to constitute direct
pecuniary interest. This would be enough to constitute a reasonable apprehension of bias but
not actual bias which was alleged.


2.2.2 Institutional Bias
Two possibilities:
      o Institutional bias stemming from the behaviour or one or more members of a board
          (“corporate taint”)
                Doubtful concept: bias is a lack of neutrality by an individual; no authority for
                   the proposition that there could be bias by a corporate taint - Manning
      o Institutional bias stemming from the very structure of the board that has nothing to
          do with the words or actions of a board member (“lack of independence”)
                “whether a well informed person, viewing the matter realistically and
                   practically- and having thought the matter through -- would have a
                   reasonable apprehension of bias in a substantial number of cases” – 2747-
                   3174 Quebec v. Regie

Indicators of lack of independence:
 Some cases focus on functional problems
    1- Where the decision maker carried out more than one function within a particular case

                                                 16
    2- Where the tribunal’s staff is employed in a way that gives right to bias concerns
    3- Where a party has an institutional role in the proceeding that might be thought to bias
       the outcome
    4- Where the tribunal might be thought to have a financial interest in a particular outcome
    5- Where a tribunal engages in improper internal consultations before the final
       determination
   Some cases focus on other indicators:
    1- Security of tenure: secure from interference, no risk of losing employment
    2- Financial security: the person paying the bill is at sufficient arms length
    3- Institutional independence: control over internal procedure in which assignment of
       people making decisions

Ocean Port
Hotel’s argument: the Board lacks security of tenure because the appointments are at pleasure
(no cause for dismissal needed). SCC reverses the Court of Appeal’s decision: absent
constitutional constraints, the degree of independence required of a particular government
decision maker or tribunal is determined by its enabling statute. When confronted with silent
or ambiguous legislation, courts generally infer that Parliament or the legislature intended the
tribunal's process to comport with principles of natural justice. But, the degree of
independence required of tribunal members may be ousted by express statutory language or
necessary implication. As an exercise of Parliamentary Supremacy, the legislature can establish
a board which is not unbiased. Only charter or bill of rights triggers can be used, otherwise
you’re using the common law against the legislature, which doesn’t work.

Bell Canada
The trigger for this case is unclear (no s.7 claim etc.). Because of Ocean Port, this case would no
longer stand because effectively you would have no functioning HRC. SCC: Bell is arguing that
the tribunal was both non-independent and partial because of powers the Human Rights.
Commission was given by the new Act to issue guidelines specifying whether given provisions of
the Act applied to classes of cases and violation of security of tenure. SCC concluded that
neither of the two powers challenged by Bell (under the Bill of Rights s. 2(e)) compromises the
procedural fairness of the Tribunal.
Note: If Bell had won their argument under the Canadian Bill of Rights s. 2(e), it could have
overturned the statute because the Bill of Rights is quasi-constitutional and trumps other
statutes.



3 Ontario Statutory Procedures Act (SPPA)
Applies to all tribunals (one or more persons) exercising statutory powers of decision
(exercising statutory power) which are required by or under their creating Acts or otherwise of
law to hold a hearing for affected parties before reaching their decisions

Elements:

                                                17
-  “Tribunals” – one or more persons exercising the statutory power of decisions
-  “Exercising a statutory power of decision”
       o A power or right, conferred by or under a statute, to make a decision deciding or
          prescribing,
               (a) The legal rights, powers, privileges, immunities, duties or liabilities of any
                   person or party, or
               (b)The eligibility of any person or party to receive, or to the continuation of, a
                   benefit or licence, whether the person is legally entitled thereto or not
       o Required by or under their creating Acts to hold a hearing for affected parties before
          reaching their decisions OR
       o Required otherwise by law to hold a hearing for affected parties before reaching
          their decisions (i.e. common law, Charter, Bill of Rights)
Note: SPPA could be precluded if a statute specifically says so

Content
- Notice – s. 6 – reasonable notice and sufficient detail
      o Where a person’s character, etc comes into question, notice is more demanding (s.8
          of the act)
- Hearings – default is written hearing unless one party objects, then oral hearing
      o Oral hearings have to be open unless they deal with personal matters/security issues
- Right to counsel
- Witnesses & Cross-Exam
- Evidence
      o Same kind of generous rules of evidence broader that would be accepted in court
- Disclosure
- Decisions & Reasons
      o Decision has to be in writing and reasons have to be given if requested



4 Substantive Review
The control of power (i.e. the way the discretion is controlled) is a 4-question process:
1- Who exercises the control? (where to go; which court)
2- What procedure must be followed in seeking to control the exercise of delegated power?
3- On what grounds is the control exercised?
4- What relief can be granted?


4.1 Who Exercises Control / Procedures to be Followed
4.1.1 Judicial Review Procedures Act (Ontario)
 S 2(1): On an application by way of originating notice, which may be styled "Notice of
   Application for Judicial Review", the court may, despite any right of appeal, by order grant
   any relief that the applicant would be entitled to in any one or more of the following:


                                               18
        o Proceedings by way of application for an order in the nature of mandamus,
            prohibition or certiorari
        o Proceedings by way of an action for a declaration or for an injunction, or both, in
            relation to the exercise, refusal to exercise or proposed or purported exercise of a
            statutory power
“Despite any right of appeal”
- The court will still hear your case, but since the remedy is discretionary, you will most likely
    lose out there if you have failed to exhaust other avenues first
- Matsqui (1995), SCC: obligation to seek "adequate alternative administrative remedies"
    before pursuing judicial review
- May be inadequate alternative remedy where: scope of appeal insufficient; appellate body
    lacks necessary power; the appeal is slow, expensive, cumbersome
“Statutory power”
- S. 1 defines it: "statutory power" means a power or right conferred by or under a statute,
        o (a) To make any regulation, rule, by-law or order, or to give any other direction
            having force as subordinate legislation,
        o (b) To exercise a statutory power of decision,
        o (c) To require any person or party to do or to refrain from doing any act or thing
            that, but for such requirement, such person or party would not be required by law
            to do or to refrain from doing,
        o (d) To do any act or thing that would, but for such power or right, be a breach of the
            legal rights of any person or party.
NB: This is broader than the SPPA as the SPPA only is triggered by an exercise of a statutory
power of decision while the JRPA is triggered by all these other things listed above.

Masters
Masters was told he had to apologize for incidents of sexual harassment in order to keep his
job. Certorari available where violation of duty of fairness. Court found that procedural fairness
should apply (serious allegations and he’s a public official), therefore, strict definition of
statutory power not necessary for certiorari. Declaration not available because investigation
not conducted pursuant to “statutory power”, it was an administrative task. Probably Royal
Prerogative power (government controlling its own in-house affairs)

Parties & Standing
 Must serve the Attorney General of Ontario – so they will always be a party
 S 9(2) says that for the purposes of an application for judicial review in relation to the
   exercise, refusal to exercise or proposed or purported exercise of a statutory power, the
   person who is authorized to exercise the power may be a party to the application (the
   delegate)
 As a general principle, for other person to have standing, the interests of that person must
   have been "prejudicially affected" by the decision
 What about where no one person is prejudicially affected more than another?
 There is the possibility that a person or group could get public interest standing if a test is
   met
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Venue
 Typically heard by Divisional Court
 S. 6(2): leave to be heard by Superior Court of Justice where the case is one of urgency and
   where the delay required for an application for Divisional Court is likely to involve a failure
   of justice
 Would apply where security of the person is at play or where one’s profession is at play
Procedure
 Application for Judicial Relief brought by way of originating notice of application
 Must set out grounds for relief and nature of the relief sought
 Procedure to be followed set out in Rule 68
Powers/Remedies
 Makes minor changes to common law remedies
Appeals
 To the Court of Appeal with leave, in accordance with Rule 61
 To get leave, it must concern more than fact alone
       o Need a legal error


4.1.2 Federal Court Act (Federal)
FCC JR jurisdiction:
 FCA has jurisdiction over decisions, orders or other administrative actions of a federal
   board, commission or other tribunal
 S. 2: "federal board, commission or other tribunal" means any body or any person or
   persons having, exercising or purporting to exercise jurisdiction or powers conferred by or
   under an Act of Parliament or by or under an order made pursuant to a prerogative of the
   Crown, other than any such body constituted or established by or under a law of a province
   or any such person or persons appointed under or in accordance with a law of a province or
   under section 96 of the Constitution Act, 1867 (very expansive definition)
 Update: Federal Ethics Commissioner excluded from review
Scheme for JR:
 Ss. 18, 18.1-18.5 and 28 of the FCA govern Judicial Review jurisdiction
a. What impact does the existence of a statutory right of appeal have?
- S. 18.5: ...where provision is expressly made by an Act of Parliament for an appeal as such to
   the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax
   Court of Canada, to the Governor in Council or to the Treasury Board from a decision [of a
   delegate], that decision or order is not, to the extent that it may be so appealed, subject to
   review…
        o Cannot go to FCA if there is a statutory right of appeal under any of those listed
            above. Must exhaust internal remedies.
        o You can go straight ahead if the statutory right of appeal is to another body, but it is
            always advisable to exhaust other remedies before judicial review
b. What level of court do we go to?
- S. 28 assigns Judicial Review jurisdiction over 15 named delegates to the Court of Appeal.


                                                20
         o If your tribunal is one of the 15 named, you can go directly to Federal Court of
             Appeal
         o If delegate not named in s.28 or another statute, then s.18 governs:
                  Federal Court (Trial Division) has exclusive original jurisdiction to remedies of
                  (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of
                      mandamus or writ of quo warranto, or grant declaratory relief, against any
                      federal board, commission or other tribunal; and
                  (b) to hear and determine any application or other proceeding for relief in
                      the nature of relief contemplated by paragraph
                  (a), including any proceeding brought against the Attorney General of
                      Canada, to obtain relief against a federal board, commission or other
                      tribunal.
         o Concept of “originating” (or “original”) and “exclusive” jurisdiction. Place you start
             your proceedings (original). Must go here and nowhere else (exclusive).
c.   Who may bring an application for JR?
-    Ss. 18.1(1): the Attorney General or anyone “directly affected by the matter in respect of
     which relief is sought”
-    Includes “public interest standing” in circumstances where the decision affects a vast
     number of people and where no one is affected more than another.
-    Public interest standing may be accorded where the applicant has (applies at provincial level
     as well)
         o (a) a genuine interest;
         o (b) in a real issue; and,
         o (c) there is no evidence of others with a genuine interest that could reasonably be
             expected to bring a challenge (there is no other reasonable and effective manner to
             bring this issue to court).
d.   When must the application be brought?
-    S.18.1(2), application for Judicial Review must be filed within 30 days after decision first
     communicated to you
e.   What procedure is followed?
-    File notice of application
-    In the notice of application, set out: the division of the court; the names of the applicant
     and the respondent (AG is the default); the delegate who is being reviewed; the date on
     which the delegate's decision was communicated; the relief sought; the grounds to be
     argued; list of documentary evidence
-    An application for every decision sought to be reviewed
f.   What are the grounds for review?
-    S. 18.1(4) – para (a) to (d) – error of jurisdiction, fact, law and violation of procedural
     fairness. (e) a decision of a delegate that has been subject to fraud or perjured evidence (f)
     where a delegate acts in any way contrary to law (basket clause)
g.   What are the remedies?
-    S. 18.1(3):
         o (3) On an application for judicial review, the Federal Court may (a) order a federal
             board, commission or other tribunal to do any act or thing it has unlawfully failed or

                                                 21
            refused to do or has unreasonably delayed in doing (mandamus); or (b) Declare
            invalid or unlawful, or quash, set aside or set aside and refer back for determination
            in accordance with such directions as it considers to be appropriate (certiorari)
            prohibit or restrain, a decision, order, act or proceeding of a federal board,
            commission or other tribunal (injunction/prohibition). Declaration is also available.
-   Would also want to include a basket clause such as ‘any other relief the court sees fit to
    apply’.

Test for Federal Act:
   1. Was the decision made by a federal board, commission or tribunal as defined by s.2? (If
        yes, the FCA is correct, if not wrong place)
   2. Is there a statutory appeal available to one of the bodies listed in s.18.5? (If body is
        listed in s. 18.5 you are statute barred from the FCA, if not must exhaust statutory right
        of appeal)
   3. If there is no statutory appeal or the appeal has been exhausted, is the delegate listed in
        s.28 or does the delegating statute provide for JR to the Court of Appeal? (If in s. 28 go
        to immediately to the FCA (FCA would have originating jurisdiction), if don’t fall in s. 28,
        default is to go to Federal Court Trial Division)
   4. Do you have standing to bring an application, either because you are directly affected or
        via the public interest standing test?
   5. Are you within the 30 day window?
   6. What are the grounds for review?
   7. What remedies are you seeking?


4.2 Grounds for Review
   1. What does this mean?
a. Exceeding limits imposed by the Constitution
b. Limits imposed at common law (i.e.)
      o Procedural fairness
      o Abuse of discretion
c. Limits imposed by procedural statutes like the SPPA and the Bill of Rights
d. Exceeding the limits of the statute delegating power (e.g.)
- Statute gives delegate jurisdiction in Ontario; operates in Quebec
- Statute gives delegate powers over lobster fishing; regulates deer hunting
 Possible Grounds
      o Violation of Procedural Fairness (the pragmatic/functional test does not apply here)
      o Abuse of Discretion
      o Errors of Law
      o Errors of Fact
 Standards of Review – considers how much weight is to be given to the delegate’s decision
      o Reasonability
      o Correctness


                                                22
     2. Private Clauses
a.   Privative clauses are statutory provisions whose intended effect is to make the delegate's
     decision final and binding, and prevent any review of the delegate's decision by the courts
b.   Example of strong privative clause:
             a. Ontario Labour Relations Act: - 114. (1) The Board has exclusive jurisdiction to
                 exercise the powers conferred upon it by or under this Act and to determine all
                 questions of fact or law that arise in any matter before it, and the action or
                 decision of the Board thereon is final and conclusive for all purposes
c.   Example of weak one:
             a. HRC, s.37 (reconsideration): (3) Every decision of the Commission on
                 reconsideration together with the reasons therefore shall be recorded in writing
                 and promptly communicated to the complainant and the person complained
                 against and the decision shall be final.
             b. EAA 23.1 Subject to 11.2, a decision of the Tribunal is final and not subject to
                 appeal, and a decision of the Tribunal shall not be altered or set aside in an
                 application for judicial review or in any other proceeding unless the decision is
                 patently unreasonable
-    Courts don’t accept that privative clauses can remove review for jurisdiction (Crevier and
     CIBC v. Rifou)
-    Jacmain (SCC) (1978): Essentially - Privative clauses protect valid decisions but do not
     protect invalid decisions from judicial review
         o Court still feels empowered to intervene because of rule of law (government is not
             above the law); parliamentary supremacy (executive cannot ignore the dictates of
             Parliament)
     3. Curial Deference
a.   "Curial deference" means deference by the courts to the decisions of delegates
b.   Why "curial deference”? Corn Growers - majority of the SCC held that where there is a
     privative clause they will only interfere where the decision is patently unreasonable;
     sometimes the tribunals know their business better than courts do.
c.   The courts rationale for reviewing decisions even where there is a privative clause is to
     protect Parliamentary Supremacy and the Rule of Law


4.3 Distinction between jurisdictional and non-jurisdictional errors of law
    Distinction is made between errors that occur where a tribunal is acting within its
     jurisdiction (intra jurisdictional) vs errors the delegate makes in determining whether it had
     jurisdiction at all to consider the issue before it (jurisdictional) – L’Acadie
    The approach now to make the distinction is the pragmatic and functional approach:
         o The wording of the enactment conferring jurisdiction on the administrative tribunal
         o The purpose of the statute creating the tribunal and the reason for its existence
         o The area of expertise of its members
         o The nature of the problem before the tribunal
                   Developed in Dunsmuir I think?
    So if jurisdictional error of law: correctness standard

                                                 23
   If intra-jurisdictional error of law: reasonable standard (patently unreasonable)


4.4 Errors of Discretion
Baker
Jamaican woman with sick child seeking refugee status, discretionary decision is at issue. Court
says that the concept of discretion refers to decisions where the law does not dictate a specific
outcome, or where the decision-maker is given a choice of options within a statutorily imposed
set of boundaries. A public officer has discretion whenever the effective limits on his/her power
leave him/her free to make a choice among possible courses of action or inaction. In deciding
whether curial deference is owed to the product of a discretionary decision, use the
pragmatic & functional test (now standard of review analysis)
- Application of pragmatic & functional test:
        o Weighing the four factors, the appropriate standard is reasonableness simpliciter
                Purpose of the provision and the Act: polycentric, so deference
                Nature of the problem in question: not a legal question, a factual one
        o Court concludes that considerable deference should be paid (expertise, Act confers
            considerable discretion in the first place)
        o Was the decision unreasonable?
                Yes, didn’t take into consideration the best interests of the child (improper
                   consideration), so the decision is unreasonable.
Implications:
- 1. Spectrum of standards on judicial review now being applied to abuse of discretion
- 2. Seems to extend judicial review to the substance of a discretionary decision
               b. Standard of Correctness
                       What is an incorrect discretionary decision? A decision that does not
                          have objective criteria (a decision of choice). This doesn’t really work.
                          Courts do not rely on the correctness standard on review of
                          discretionary decisions – will only review on reasonable simpliciter or
                          patently unreasonable standard.
               c. Suresh.
                       SCC found that the presence of a Ministerial decision-maker leads to
                          extreme deference (because of expertise and polycentric
                          considerations, discretion) and standard is patently unreasonable
                               Patently reasonable defined as: a decision made arbitrarily, or
                                  in bad faith that cannot be supported by the evidence or
                                  where the Minister did not consider the appropriate facts
                       Side-note:
                               Suresh won because of the lack of info he was given
Court found that the fact that the information was sensitive (he was an accused terrorist) is a
consideration but does not mean Suresh is not entitled to know the case before him




                                                24
4.5 Error of Fact
   Is there still room to see error of fact as a separate ground for review with its own rules?
         o It would seem not
         o There needs to be sufficient evidence upon which the delegate could come
            reasonably to its conclusion
         o But note paragraph 18.1(4)(d) of the FCA
                  Creates a ground for review where the decision is based on erroneous finding
                     of fact made in a perverse or capricious manner or without regard for the
                     material before it
                          Some FCC jurisprudence equates perverse or capricious with “clearly
                             wrong” (i.e. reasonableness simplicitor)
                          Other jurisprudence seems to conflate the 18.1(4)(d) standard with
                             “patently unreasonable”
                          Post-Dunsmuir, doesn’t matter!


4.6 Dunsmuir
Dunsmuir
Dunsmuir was a court official and was dismissed and was given 4.5 months’ salary in lieu of
notice. S 20 of the civil service act stated that termination shall be governed by ordinary rules of
contract. The contract in question here said that he could be provided with salary in lieu of
notice. But, s 100.1 of the PSLRA said that “where an adjudicator determines that the employee
has been discharged for cause... the adjudicator may substitute such other penalty as he
wants”. Dunsmuir argued that he was in fact argued for cause (not for lack of suitability) thus
challenged this. He appealed to the SCC. The court established several things:
- There should only be 2 standards of review: correctness and reasonableness
- Reasonableness standard means looking at the administrative decision (i.e. deferring to it)
   in order to determine if it was reasonable (so in essence the court would show deference to
   the reasoning process of the administrative tribunal who made the decision)
        o It is also concerned with whether the decision within a range of possible acceptable
            outcomes which are defensible with respect of the facts and the law
- Correctness standard means that the court will undertake its own analysis of the question
   to determine if it was correct (such that it won’t care about the reasoning process of the
   administrative tribunal)
        o The analysis will bring the court to decide whether it agrees with the determination
            of the decision maker; if not, the court will substitute its own view and provide the
            correct answer. From the outset, the court must ask whether the tribunal's decision
            was correct
Some other key points from the case:
 Questions of fact, discretion and policy as well as questions where the legal issues cannot
   be easily separated from the factual issues generally attract a standard of reasonableness
 Legal issues attract a standard of correctness
 Presence of privative or preclusive clause gives rise to a strong indication of review pursuant
   to the reasonableness standard

                                                25
   Deference will usually result where a tribunal is interpreting its own statute closely
    connected to its function, with which it will have a particular familiarity
   Deference may also be warranted where an admin tribunal has developed particular
    expertise in the application of general common law or civil law in relation to a specific
    statutory context

Smith v. Alliance
Under Dunsmuir, the identified categories are subject to review for either correctness or
reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question
of “general law ‘that is both of central importance to the legal system as a whole and outside
the adjudicator’s specialized area of expertise’” ...; (3) the drawing of jurisdictional lines
between two or more competing specialized tribunals; and (4) a “true question of jurisdiction
or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard
where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”)
statute or “statutes closely connected to its function, with which it will have particular
familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably
intertwined legal and factual issues (paras. 51 and 53-54).



5 Remedies
Two broad types:
1. Statutory appeal – remedies are listed in the statute
2. Judicial review – narrow list of remedies available
       a. i.e. quash decision and send back to the delegate for re-consideration


5.1 Prerogative Writs (FCA discusses these)
5.1.1 Certiorari
 Quashes decision, issue of remitting for re-determination
 Where it is quashed on bias grounds, it will not be sent back to the same decision maker
 Except in clear errors of jurisdiction where it would not be sent back for redetermination
   because the delegate didn’t have the power to make those decisions in the first place
 In cases of procedural fairness there’s no guarantee that the decision will be any different
   (i.e. if the violation was that no notice was given, then the delegate could turn around, give
   notice and make the same decision again)
 In cases of bias or decision was patently unreasonable, court likely to ask for the panel to be
   re-constituted before re-determination is done


5.1.2 Prohibition
 Available where decision not yet made
 Prevents decision not yet made, available to prevent wrongful assumption of jurisdiction
 Uncommon remedy
                                                  26
        o Courts like a decision made before they respond
   While pleading prohibition, usually also pleading an injunction and certiorari in case you
    don’t get the prohibition or the decision is made while the judicial review is pending
   Not available to curb or stop anticipated errors of law (can’t go into the future)
   Courts tend to dislike this remedy – they like to see the delegate make a decision first –
    curial deference


5.1.3 Mandamus
 Four basic requirements:
      o 1. The function to be performed by the delegate must be obligatory (shall)
      o 2. The applicant for the relief is owed the duty individually (not as a member of a
          general class)
      o 3. The performance of the duty is due (duty is owed immediately)
      o 4. The delegate has refused a demand that it perform the duty (exhaust remedies –
          must ask delegate and they must refuse)
 Compels delegate to perform public duties (affirmative action)
 Available for both substance and procedure
 Would plead Mandamus and certiorari
 Mandamus not available for discretionary powers because it’s not obligatory
 Most you could get is court obliging someone to use their discretion (but cannot dictate
   which way)
 It used to be that Mandamus did not apply to the Crown
      o Today it is accepted that it can be used against ministers as they operate according
          to a statute


5.1.4 Habeas Corpus
 Brought on behalf of detained person
 In Ontario, Habeas Corpus Act (for civil matters)
 Provides for a prayer for certiorari in aid of habeas corpus
      o Allows the court to go beyond the detention and look at all factors
 Compels release of improperly detained persons
 Would also plead certiorari
 Court obligated to issue writ on reasonable and probable grounds
      o Gov is then compelled to come to court and show cause for detention
 Less used after Charter
 Federal courts has very little jurisdiction in Habeas Corpus
      o Exception: Canadian military overseas


5.1.5 Quo Warranto
 Allows applicant to challenge person’s entitlement to public office
 Must be purported exercise of allegedly usurped office

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   Person challenged successfully does not have powers of the public office
   For MPs and Senators, it is not used because of parliamentary privilege
   Occasionally used for Indian Band councils


5.2 Ordinary Remedies
5.2.1 Declaration
 Court interprets provisions and declares true meaning
 Only on questions of law
      o There has to be a contested matter
 Available by way of action (lawsuit) or judicial review
 Under the JRPA, declarations only available where there is an exercise of statutory power
 Courts like to have a decision before them, not anticipatory
 Not binding, but generally observed


5.2.2 Injunction
 1. Classified by effect:
      o Preventive injunctions – stop something
      o Mandatory injunctions – compels something to be done
 2. Classified by duration
      o Interlocutory injunctions – temporary
               3 prong test in RJR:
               Serious question/issue
               Irreparable harm (in the absence of the injunction)
               Harm that cannot be compensated by money
               Balance of Convenience (balance of harm between parties looking at a
                  scenario whether there was an injunction or not)
      o Permanent injunctions


5.3 Discretion to Decline Remedies
1. Application is premature – must wait for a decision (certiorari)
       a. Obviously not in cases of prohibition, etc
2. Available alternate remedy – exhaust remedies (i.e. statutory right of appeal)
       a. Could appeal based on the appeal mechanism
       b. can’t give the remedy you’re seeking, takes too long (time), or too expensive etc.
3. Minor error – the error is so minor that it doesn’t affect the ultimate decision
       a. Courts rarely view procedural fairness violations as minor errors
4. Remedy would have no practical effect – the remedy is moot now (circumstances have
   changed) or even though the delegate got to the decision the wrong way this is the only
   possible outcome.
5. Failure to object promptly – when there is a reasonable apprehension of bias, you must act
   as soon as you are made aware.
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      a. Failure to object may be viewed as waiver. At Federal level – 30 days. No time limit
          under the JRPA though (though court can still say you’ve been too slow).
6. Applicant is bad – the violation was due in part to the applicant (contributing)



5.4 Remedies under FCA
   S. 18.1(3):
        o (3) On an application for judicial review, the Federal Court may
                 (a) order a federal board, commission or other tribunal to do any act or thing
                    it has unlawfully failed or refused to do or has unreasonably delayed in
                    doing; or
                         Sounds like mandamus,
                 (b) Declare invalid or unlawful, or quash, set aside or set aside and refer back
                    for determination in accordance with such directions as it considers to be
                    appropriate, prohibit or restrain, a decision, order, act or proceeding of a
                    federal board, commission or other tribunal.
                         **Would cite this passage in pleadings. Habeas Corpus writ is not
                            available.
                         **Monetary compensation is not available under judicial review.
- Action for Abuse of Power (Civil litigation)
        o Tort of abuse of power in Black v. Canada: is there a tort for abuse of power? Yes
        o Deliberate misconduct is established by proving
                 1. An intentional illegal act, which is either
                 (i) an intentional use of statutory authority for an improper purpose; or
                 (ii) actual knowledge that act (or omission) is beyond statutory authority; or
                 (iii) reckless indifference, or wilful blindness to the lack of statutory authority
                    for the act; and,
                 2. Intent to harm an individual or a class of individuals, which is satisfied by
                    either:
                 (i) an actual intention to harm; or
                 (ii) actual knowledge that harm will result; or
                 (iii) reckless indifference or wilful blindness to the harm that can be foreseen
                    to result."
        o Tort of abuse of power (misfeasance of public office) in Odhavji Estate v.
            Woodhouse:
                 Misfeasance in public office (this abuse of power), is an intentional tort
                    distinguished by
                 (1) deliberate, unlawful conduct in the exercise of public functions; and
                 (2) awareness that the conduct is unlawful and likely to injure the plaintiff
Odhavji Estate v. Woodhouse
Odhavji was fatally shot by police. Police did not cooperate with the investigation. Police were
statutorily obligated to cooperate with the SIU. Officers are cleared of any wrongdoing.
Odhavji’s family sues for misfeasance (for not cooperating). Police argued that there is no

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reasonable cause of action (alleging a wrong not known to wrong). SCC found that there is a
tort of abuse of power or misfeasance in public office. Not cooperating with a statutory
requirement constitutes this type of misfeasance. Plaintiff must show that the illegal conduct
was the cause of the injuries and that those injuries are compensable by monetary
compensation.


5.5 Public Inquiries
5.5.1 Ontario Public Inquiries Act
 LG in council may order an inquiry into any subject matter “connected with or affecting the
   good government of Ontario or the conduct of any part of the business thereof or the
   administration of justice therein or that the LG in council declares to be a matter of public
   concern”
 Discretionary delegated power
 The terms of reference of the inquiry coupled with the act determines the scope and
   jurisdiction of the inquiry
 Inquiries themselves can be supervised by the courts
       o They must comply with procedural fairness and the Charter
       o Ex. if inquiry findings will impugn an individual, they must be given an opportunity to
           comment, etc


5.5.2 Federal Inquiries Act
    “The Governor in Council may, whenever the GIC deems it expedient, cause inquiry to
      be made into and concerning any matter connected with the good gov of Canada or the
      conduct of any part of the public business thereof”
    Effectiveness
         o Wide powers of investigation and the power to compel witness
         o Often no real alternative to public inquiries
         o Generally competently staffed
                  Usually from the judiciary, giving them judicial independence
    Problems
         o Potential for reputational harm/liability exposure and abuse of inquiries
         o E.g. the inquiry process in the wake of the Gouzenko affair
    Solutions
         o A. Constraints on power to assign blame
                  Canada (A-G) v. Canada (Commission of Inquiry on the Blood System)
                  An inquiry is not a court or tribunal and therefore cannot measure legal
                    culpability
                  Should avoid language that assign blame in a criminal / civil sense
                  Must also ensure procedural fairness
         o B. Constraints in relation to subsequent legal proceedings
                  Charter ss. 7 and 11 issues

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                          Phillips v. Nova Scotia: at issue was self-incrimination and right to fair
                           trial, there was a mine disaster and the managers were questioned.
                           They asked to have the inquiry stopped pending their criminal
                           proceedings. Majority’s view was that in this instance, there was no
                           problem since there was an election for judge alone and the
                           manager’s had not yet been compelled to testify. Concurring
                           decision: A public inquiry is so important that it should continue, but
                           evidence from that can’t be used against them and measures should
                           be taken in order to minimize jury pools, etc, rather than halting the
                           inquiry
   Note: If you’re challenging the outcome of an inquiry you have to be concerned with the
    standard of review
        o Would have to apply a Dunsmuir analysis




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