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					                                        Administrative Law
                             Melanie Aitken ~ Fall 2003
Text: Mullan, Administrative Law: Cases, Text and Materials. (2003)

PART I: General Introduction ........................................................................................ 5
  Course Part I: Procedural Fairness .............................................................................. 5
  Course Part II: Remedies for Unfairness ...................................................................... 7
  Key Terms ....................................................................................................................... 8

PART II – PROCEDURAL FAIRNESS ........................................................................ 9
Sources of the Duty of Fairness ....................................................................................... 9
  Common Law on Existence of Procedural Fairness Rights ........................................... 9
    Outline......................................................................................................................... 9
    Cooper v. Board of Works [p 104] ........................................................................... 10
    Church Assembly ...................................................................................................... 10
    Calgary Power [p 102] .............................................................................................. 10
    Ridge v. Baldwin (1963, House of Lords) [p 102] ................................................... 11
    Nicholson (1974, SCC) ............................................................................................ 11
    Cardinal (1985, SCC)................................................................................................ 13
    Knight v. Indian Head School (1990, SCC) .......................................................... 13
  Common Law on Limitation of Procedural Fairness Rights ........................................ 15
    Inuit Tapirisat [1980] 2 S.C.R. 735......................................................................... 15
    FAI Insurance (Australia) ......................................................................................... 16
    Homex (1983, SCC).................................................................................................. 16
    Bezaire v. Windsor Roman Catholic School Board (p 145) ..................................... 16
    Regulated Importers (Fed Ct App) ........................................................................... 17
  Common Law on the Interests Protected By the Duty of Fairness ............................... 17
    Cardinal (1985, SCC)................................................................................................ 17
    Re Webb (1978, On Ct App) .................................................................................... 17
    Hutville (1986, Sask) ................................................................................................ 17
    Lazarah (1973) .......................................................................................................... 18
  Doctrine of Legitimate Expectations ............................................................................ 18
    Schmidt (1969, Lord Denning) ................................................................................. 18
    Liverpool (1962) ....................................................................................................... 18
    Old St Boniface Residents Association (1990, SCC) ............................................... 19
    Ref Re Canada Assistance Plan (SCC) ..................................................................... 19
    CUPE (p 189)............................................................................................................ 19
    Council of Civil Service Unions (House of Lords) .................................................. 20
    Puri v School Board .................................................................................................. 20
    Mt Sinai Hospital (SCC) ........................................................................................... 20
  Common Law on Fairness with Non-Final Administrative Decisions ......................... 21
    Abel ........................................................................................................................... 21




                                                                  1
Constitutional Thresholds .............................................................................................. 23
  Bill of Rights ................................................................................................................. 23
  Charter .......................................................................................................................... 23
  Compared ...................................................................................................................... 23
    The National Anti-Poverty Organization v. A-G Canada ......................................... 24
  Charter Case Law ......................................................................................................... 25
    Singh v. Canada (Minister of Employment and Immigration) ................................. 25
    Tirelli (1992, SCC) ................................................................................................... 27
    Wilson v. B.C. Medical Services Association .......................................................... 28
    Godboat 1997 ............................................................................................................ 28
    Gosling 1994 ............................................................................................................. 28
    New Brunswick v. G.J. ............................................................................................. 29
    Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 ... 29
  Conclusion .................................................................................................................... 30

Procedural Propriety: The Standard of Review .......................................................... 31
  Introduction................................................................................................................... 31
     Bibeault (1984, SCC) ............................................................................................... 31
     Baker v. Canada (Minister of Citizenship and Immigration) ................................... 31

The Content of Procedural Fairness ............................................................................. 35
  Introduction................................................................................................................... 35
     Baker v. Canada (Minister of Citizenship and Immigration) ................................... 35
  Framework .................................................................................................................... 35
  Statutory Powers Procedure Act and Other Procedural Codes ................................... 36
     Re: Dowing (On Ct App) .......................................................................................... 37
  Oral Hearings ............................................................................................................... 37
     Masters v. Ontario ..................................................................................................... 37
     Kalm v. University of Ottawa (On Ct App, 1997) .................................................... 37
  The Right to Counsel..................................................................................................... 39
     Men’s Clothing Manufacturers Assocation (Div Ct, 1989) ...................................... 40
     Irvine (SCC, early 80s) ............................................................................................. 41
     Re: Parrish ................................................................................................................. 41
     Delgani (SCC, 1990) ................................................................................................. 42
     Parrant (UK, 1990).................................................................................................... 42
     Howard v. Stoney Mountain Institution.................................................................... 42
     New Brunswick vs. G.J ............................................................................................. 43
  Disclosure ..................................................................................................................... 45
     Kane (SCC, 1980) ..................................................................................................... 45
     Natalie, 1981 ............................................................................................................. 46
     Abel ........................................................................................................................... 46
     Ecclestone (Mental Health Review Board)............................................................... 46
     Galant ........................................................................................................................ 47
     Gough ........................................................................................................................ 48




                                                                   2
   Evidence and Cross-examination ................................................................................. 49
     Innisville (SCC) ........................................................................................................ 49
     See also… ................................................................................................................. 50
     County Strathcona No. 20 v. Mclab Enterprises [1971] Alta ................................... 50
     B v. Catholic CAS [1987] ON Div. Ct. .................................................................... 50
     Saresh ........................................................................................................................ 50
   Admissibility.................................................................................................................. 51
   Duty to Give Reasons .................................................................................................... 51
     Baker (1999, SCC) .................................................................................................... 51
     Via Rail (Fed Ct App) .............................................................................................. 52
   Bias ............................................................................................................................... 53
     Energy Probe ............................................................................................................. 54
     Burnbrae Farms v. Canadian Egg Marketing Agency (Fed Ct, 1976)...................... 54
     Moskalyk-Walter v. Ontario (College of Pharmacy) (On Div Ct, 1975) ................ 55
     Pearlman v. Manitoba Law Socieity Discipline Committee (SCC, 1991) ............... 55
     CP v. Matsqui (SCC, 1995) ...................................................................................... 55
     EA Manning v. Ontario Securities Commission....................................................... 57
     Number Co v. Regie de Quebec ............................................................................... 58
     McBain ...................................................................................................................... 58
     Re Pain ...................................................................................................................... 59
     Great Atlantic ............................................................................................................ 59
     Save Richmond Farmland ......................................................................................... 59
     Newfoundland Telephone ......................................................................................... 59
   Tribunal Independence ................................................................................................. 60
     Sethi v. Canada (Minister of Immigration) ............................................................... 60
     CP v. Matsqui (1995, SCC) ...................................................................................... 60
     Bell Canada (SCC, 2003) .......................................................................................... 60

Institutional Decisions .................................................................................................... 62
  Delegation: The Legal Doctrine ................................................................................... 62
     Vine vs. National Dock Board .................................................................................. 62
     Morgan v. Acadia (p 491) ......................................................................................... 62
     King v. Chartered Accountants ................................................................................. 62
     Just (New Zealand) ................................................................................................... 62
  Consulting with other Agency Member......................................................................... 63
     Consolidated Bathurst (1990, SCC).......................................................................... 63
     Tremblay ................................................................................................................... 64
     Ellis Don ................................................................................................................... 65
     Re: Pain ..................................................................................................................... 65
  Writing and Reviewing Reasons for Decision .............................................................. 66




                                                                   3
PART III – SUBSTANTIVE REVIEW ........................................................................ 67

Standard of Review ......................................................................................................... 68
  Development of the Law of Deference .......................................................................... 68
    Crevier....................................................................................................................... 68
    CUPE v. NB Liquor Corporation (SCC, 1979) ........................................................ 69
    CBC (SCC, 1984) ..................................................................................................... 70
    Bibeault (SCC, late 1980s) ....................................................................................... 70
    Mossop (SCC, 1993)................................................................................................. 72
    Bradco Construction Ltd. (On Ct App, 1997)........................................................... 73
    CUPE v. Montreal (SCC, 1997) ............................................................................... 74
  Extending the Reach of Deference: Statutory Appeals ................................................. 75
    Pezim v. BC (SCC) ................................................................................................... 75
    Southam ................................................................................................................... 76
  Factors in the Standard of Reviews: ............................................................................. 77
    Law Society NB v. Ryan (On Ct App, 1997) ........................................................... 77
  The Modern Standard Articulated: Pushpanatham ...................................................... 78
    Pushpanatham v. Canada (Minister of Immigration) (SCC, 1998) .......................... 78
  The New Battleground: Nature of the Question ........................................................... 79
    Trinity Western (SCC, 2001) .................................................................................... 79
    Mattel (SCC, 2001) ................................................................................................... 79

Applying the Standard of Review .................................................................................. 81
 Questions of Law........................................................................................................... 81
    Mossop ...................................................................................................................... 81
 Questions of Fact .......................................................................................................... 81
    Zurich Insurance (SCC) ............................................................................................ 81
    Judicial Review ......................................................................................................... 83
 Content of Patent Unreasonableness ............................................................................ 83
    National Corngrowers (SCC, 1990) .......................................................................... 83
 Discretionary decisions and judicial review................................................................. 84
    Roncarelli v. Duplessis ............................................................................................. 85
    Baker v. Canada (Immigration) ................................................................................ 85
    Saresh ........................................................................................................................ 86
    Re: Sheean ................................................................................................................ 87
    Dalton (early 80s) ..................................................................................................... 87
    Improper Purpose cases ............................................................................................ 88
    Shell v. Vancouver .................................................................................................... 88
    Calgary v Taxis ......................................................................................................... 88
    Baker ......................................................................................................................... 88

Framework ...................................................................................................................... 89
  a) Standard of Review .................................................................................................. 89
  b) Spectrum of Standards ............................................................................................. 89

Constitutional Questions ................................................................................................ 90



                                                                  4
Sept 3
                     PART I: General Introduction
Subject: Admin deals with issues that are tied together by common procedural matters,
covering a wide range of substantive material. The overriding common factor is fairness
in the exercise of delegated governmental authority. It is a fundamental expression of
democracy and of the rule of law that such authority be exercised only within the
boundaries of the evolving definition of fairness.

Scope: regulating the exercise of governmental power over the individual. Also,
regulating the allocation of power between institutions.

What do we mean by Government? The executive, and administration (bureaucracy).
Admin is about how the government implements programs for the public interest that
impact on all our lives.

The power is delegated almost entirely through STATUTE. There are remnants of
Crown Prerogative around, but focus entirely on the legislative decision to regulate an
area in the public interest. Which legislature? Fed, prov or municipal as designated by
Constitutional division of powers (s. 91 and 92). Admin law is about doing what the
legislature asks.

Course Part I: Procedural Fairness

With reference to democracy and rule of law, the proposition is that if decisions
impacting citizens will be made by delegates (rather than directly accountable elected
officials), they must be reviewable to a common, democratic standard. That standard is
fairness. While the content has and will vary over time, the concept of fairness is used to
review all administrative decisions.

The content of fairness has involved developing minimum standards for: factual review,
staying within statutory jurisdiction, and reviewing and remaining within precedents.
(Administrative bodies have no inherent jurisdiction.)

Historically, the rise of the administrative state has been a post WWII phenomenon, as a
response to increasing private power in areas considered vital to the public interest, like
transportation and energy. Market forces were deemed insufficient (in Canada) to
provide citizens with adequate services. But, conversely, courts were too inefficient and
did not have expertise with these specialized, technical areas. The proliferation of
administrative bodies (and public regulation generally) aimed at ensuring that market
forces did not diminish the standard of living that was coming to be expected by the
public.

In the last twenty years, there has been less admin law (corresponding to an increased
faith in markets). However, in some key areas, the last twenty years have seen a
burgeoning in such regulation – areas like human rights and consumer protection. This


                                             5
has been a response to evolving value judgments about what counts as the public interest.
As this increasingly means protecting the vulnerable, admin law is a good forum as it
ensures access in a way that courts can’t manage.

Generally, statutes setting up administrative areas follow a four stage pattern:
   1. purpose
   2. establish agency structure
   3. decision-making
   4. remedy for poor decisions

Note that Crown Corporations occupy a strange middle ground in this scheme of public
regulation vs. private market forces. They have a foot in both worlds, and are losing in
the push for privatization.

Despite all the different words we’ll use (board, agency, commission, tribunal etc.), the
only notable difference is in adjudicative vs. policy-making functions, though even that
line is blurry. This is a list of all the SIMILAR characteristics of administrative bodies:
    1. There is some independence between bureaucratic departments and
         administrative bodies. This arms length arrangement exists, but is hindered by
         budget allocation and political (rather than expert) appointments.
    2. If individual rights are impacted, the individual will get some opportunity to
         participate. Participation varies with the interest at stake. This deals with the
         level of procedural guarantees.
    3. The matter usually revolves around an individual.
    4. Some expertise is found in admin body members. This balances public interest
         against market forces.
    5. There is a limited substantive jurisdiction, strictly curtailed by statute.
    6. Rules for appeal or review are limited (see part II).

Their DIFFERENCES include:
   1. Adjudication vs. policy-making
   2. Level of caseloads.
   3. Kinds of decisions (recommendations vs. enforceable decisions)
   4. Types of procedures.

Procedures can be drawn from various legal sources:
   1. Statute (permitting administrative body to make its own procedures etc.)
   2. Common law on procedural fairness
   3. Constitutional and quasi-constitutional documents (see Charter s. 7, Bill of Rights
      s. 2(e))




                                              6
Course Part II: Remedies for Unfairness

Decisions of admin bodies can be fixed either through statutory APPEAL routes, or
through a more general JUDICIAL REVIEW procedure.

Appeals can follow two processes:
   1. Appeals within the admin body (to a supervisor informally, or to a second
      tribunal). This can be mandatory or discretionary.
   2. Engaging with the courts. This can be done two ways:
          a. Sue the gov’t (when they are acting in a commercial capacity, as per
              Crown Immunity rules)
          b. Pursue statutory appeal rights. The statute may give no right of appeal,
              and if so, there is no common law inherent right of appeal (ever). End of
              story. The statute may additionally set boundaries on what may be
              appealed (question of law only, fact only, or mixed law and fact). At the
              high end, even decisions that are entirely discretionary may be subjected
              to appeal by statute (which is a legislative decision to limit the purview of
              an administrator when there is a perception that there is low expertise.)

If there is an appeal, the common law has developed standards of DEFERENCE which
courts must pay to administrative decisions. This is different from an appeal from a
lower court, where the issue is whether the decision was correct. That’s not how
administrative appeals are run. Factors in this deference calculus include the level of
expertise in the agency (esp. labour), the interest at stake, the overall scheme of the
statute and so forth. This is an area of high academic interest, and there have been many
SCC cases on it recently.

In the absence of an applicable appeal procedure, the injured party may seek judicial
review. There are two basic grounds to do so: JURISDICTION and FAIRNESS. When
seeking judicial review, parties ask the court to order a writ, often one of the following
three, based on these grounds:
    1. Certiori: the court must quash the government’s decision
    2. Prohibition: the court must stop the tribunal from proceeding
    3. Mandamus: the court must require the government to perform its statutory duty
Note that all writs are entirely discretionary, and up to the judge regardless of whether all
the legal prereqs are in place. The guiding principle is that if a court perceives
unfairness, they will find a way to remedy it.

Some sample arguments for judicial review include:
   1. Body did not act in a way that was procedurally fair.
   2. The Body acted unconstitutionally
   3. The Body acted ultra vires (outside jurisdiction)
   4. The Body exercised authority in a patently unreasonable way.
   5. The Body violated the rule of law.




                                              7
Sept 8
Key Terms

   1. Natural Justice
       Starts with early common law procedural guarantees (1700s), a minimum
         baseline to safeguard invidviduals from state interference. (BP – pretty sure
         equity kicked in much earlier than this, but ….should’ve taken legal history!)
       Contents of natural justice evolved from the 18th to 20th centuries, and
         continue to today. They often include two aspects:
          The right to unbiased decision maker
          The right to a “hearing” (written or oral)

   2. Duty to Act Fairly (of Fairness)
       Nearly synonymous with natural justice.
       DF is just a shorthand version – a “natural justice lite” – that is used in less
         formal administrative settings, while the full set of natural justice rights are
         reserved for the courtroom.

Administrative law study

So this is a study of procedures. It relates to the extent the individual can participate in a
decision that affects their life, both to communicate their case and test the opposing case.
[BP – recall Pirie: with a fair process, people will accept outcomes even if they are less
favourable than ones resulting from a dictatorial process which are prima facie “better”]

This section will examine three subjects:

           -   Sources of the administrative procedures (a statute / regs, the common law
               on procedural fairness (PF) or the Constitution
           -   Types of decisions which attract PF
           -   Content of those rights as varying for context




                                              8
               PART II – PROCEDURAL FAIRNESS

                              DUTY OF FAIRNESS
Audi Alterem Partem                                       Nemo Judex
                                              No one should be a judge in her own cause
             SPPA                                             BIAS
          Oral Hearings                  What would an informed person, viewing the
  Right to Counsel (& Charter)          matter realistically and practically, and having
           Disclosure                 thought through the matter conclude? (Grandpare J.
 Evidence & Cross-Examination                     Committee for Justice & Liberty)
     Duty to Give Reasons              Impartiality (reasonable             Independence
                                         apprehension of bias)
                                     Antagonism                          Security of tenure
                                     Association
                                     Prior Involvement                   Financial Security
                                     Closed Mind / Attitude
                                                                         Admin Control
                                                                         (Valente)



Sources of the Duty of Fairness
If there has been an administrative decision that impacts adversely on (your/your client’s)
rights, the following is where to start looking for redress:

           -   Look at the statute authorizing the decision to ensure the decision was
               made within the scope of delegated jurisdiction. It is rare that PF is
               addressed directly here, but check.
           -   Look for the same under the regulations
           -   Look to see if the common law has created any PF rights for this situation
               (this is the greatest source of PF rights)
           -   If all else fails, check out the Bill of Rights s. 2e (right to a fair FEDERAL
               hearing) or Charter s. 7 (“principles of fundamental justice”)
                    i. Singh (1985) was the first major BoR case – struck down an
                        immigration procedure as inconsistent with s. 2e
                   ii. Charter is strange for analyzing s. 1 – when is the duty to act fairly
                        “breachable” in a fair and democratic society?

Common Law on Existence of Procedural Fairness Rights

Outline
The common law has shown the evolution of the appropriate degree of PF. There have
been three major trends:




                                             9
   1. Contextualism: there has been a recognition that guarantees of PF will vary with
      context; there is no hard and fast rule.
   2. Liberalization: the threshold for attracting PF rights has dropped; less confidence
      in government (less conservative) and more respectful of citizens.
   3. Deference: while the baseline has dropped on the threshold for attracting PF,
      courts are simultaneously granting more deference to the government decisions
      not just on merits, but also on PROCEDURES.

NB – the court’s interest in injustice is piqued at the confluence of two particular
circumstances
    1. an individual impacted by the government
    2. property rights at stake
PF will be calibrated against this standard.

Cooper v. Board of Works [p 104]
Facts: Cooper had to send a notice to the Board of Works before building a house. He
may not have. Regardless, the Board demolished his partly built house without notice.
Result: Even without a statutory requirement, the exercise of any delegated authority is
subject to an individual’s right to be heard before hand. NOTICE and REPLY are
freestanding rights. Therefore, the Board exceeded its statutory authority and got charged
with damages (rare).
Comment: the Court was pragmatic. It’s common sense to tell people before you tear
down their houses. Public interest: we don’t want governments doing with without
learning all the relevant facts. This is the first real application of PF outside the courts
and it was almost prescient in focusing on context, and looking at fairness more than
black letter law.

Church Assembly
Result: Set the conditions for extra-judicial procedural fairness:
     1. The administrative power must be about determining rights
     2. The legislation must include a “super-added duty to act judicially”
Comment: Cooper created chaos. This case drew back from Cooper a long way (still in
the English courts). Much of the follow-up case law dealt with interpreting these two
conditions (i.e. does “right” include privilege?) On the second point, the court went to
the legislation to see if Parliament intended the individual to get a hearing. This was
wickedly circular: if the earlier CL gave PF rights where they were missing from statute,
it’s bizarre to modify that by limiting it to those cases where it is approved by statute.)

Calgary Power [p 102]
Facts: Provincial Crown Corp expropriated land to build power lines.
Result: There was no stutory implication for an individual hearing before their land was
expropriated. The key here was to distinguish judicial (PF rights exist) from
admin/legislative (PF rights do not exist) decisions.
Comment: These categories were tortured and now largely swept aside. Gut instincts on
fairness are now the way forward.




                                             10
Ridge v. Baldwin (1963, House of Lords) [p 102]
Facts: dismissed Constable.
Result: Ridge should’ve had a hearing. Context was the type of employment rltnsp
(private, stat appts and at the pleasure of the Crown) Stat appts require just cause for
dismissal. R v. B asked: (a) what interest is at stake? And (b) What penalties / impact
may result? Both created a scale of context.
Comment: returns to the contextual approach to PF, focusing on Cooper instincts >
Church Assembly pigeonholes. Affirmed that there is an evolving duty to act fairly in the
administrative context, despite legislation.

Nicholson (1974, SCC)
Semincal case on circumstances triggering PF, and the content of fairness
Facts: a cop is fired after 15 mos services. The statute says that there are to be no
penalties against a cop without a hearing, but nothing to prevent firing a cop within their
first 18 mos. Nicholson sought judicial review on fairness, and it went to the SCC.
Result: The Judicial Review Procedure Act of Ontario states that if you are the subject of
administrative or statutory decision in Ontario you have the right to appeal the procedure
or merits to divisional court.

Divisional Ct result: sure can’t get as much as the full 18 mos scheme, but shoulc have
had some lesser rights (a sliding scale?) Some notice/reply would have been appropriate.
Focus: characterizing employment – as a statutory office holder he was dismissable only
with cause and therefore some minimal PF attaches.

Ontario Court of Appeal: reversed Div Ct, decided he was an at pleasure appointment.
At pleasure appointments got no rights to PF until after the probation period in the statute
(18 mos). NB – this ignores the trend of finding an independent common law duty of
fairness.

SCC Majority: (Laskin) Critiques the Ct of Appeal for reading the statute so strictly (ok
to fire before 18 mos…therefore, OK!)

        [That interpretation was based on the doctrine of expressio unius (the expression
        of one thing is the exclusion of the other. In this case, granting hearings for cops
        with 18+ mos of service expressly excludes giving hearings to cops with less than
        18 mos service – minds turned and all that).]

Laskin says it’s right to start with the statute, but must focus on results. In this case, it
meant there were no half measures. He found that for <18mos there ARE SOME
procedural fairness entitlements, but they amount to less than statutory protections
granted to those with more than 18 mos service.

That “some” depends on context. Laskin dispenses with Calgary Power categories.
Context is like Ridge v. Baldwin – interest and penalty. The content of the right, in this
case, was the right to be heard and to respond. He clearly COULD be dismissed, but the
PROCEDURE had to be fair.



                                               11
There is reference made to Ridge v. Baldwin categories, and more details:
   1. Master/servant – private, no resort to procedural fairness outside of contract
   2. Holding office “at pleasure” – dismissable utterly without cause
   3. Statutory positions – must have cause to dismiss, and therefore some PF

Must first characterize the appointment (by looking at the statute and seeking legislative
intent). Laskin found that the police board had to have cause to dismiss him and
therefore some procedural guarantees attached. Nicholson should have been given notice
and a right to respond to that cause.

Goes on to say that employment categories are of limited relevance. The notion of at
pleasure appointments not attracting PF isn’t strictly true anymore. We must still
(minimally) protect against arbitrary use of government power. But Nicholson wasn’t at
pleasure, so a preferred way out was to conceptualize a sliding scale of PF rights.
Contextualist result: FAIRNESS IS CALIBRATED TO THE IMPACT. Notice & Reply
required.

Important: there is a public interest in knowing that government power can only be
exercised in a context that is procedurally fair. (Fun dissent – yay dumb categories!)

SCC Dissent: basic traditional pigeon-hole approach. What kind of employment
relationship? At pleasure! No need for cause! Distinguished Ridge, and held firm to the
“at pleasure = no PF” formula, leaving the gov’t total discretion to fire and claiming that
there is no point in PF if there is no requirement to justify / give cause on the merits.

Interlude
There were a series of open questions after Nicholson: do all administrative decisions
attract PF? What’s the trigger? How do you know how much protection is owed? What
factors affect the sliding scale? What types of rights are we talking about: notice,
disclosure, presentation, publicity, cross-examination, written reasons…?

All of these questions raise the classic trade-off between flexibility and efficiency (or
contextualism against predictability). Looks like evidence, civ pro, and basically every
other procedural category around in the last twenty years or so.

Nicholson made a brave effort to eliminate stupid categories, but some stuck around for
another reason. The distinction between legislation and judicial decisions (by admin
bodies) that made Calgary Power such fun became the basis for the Federal Court Act’s
right to judicial review. The nature of the decision under review determined which level
of court would take the case at first instance. After 1992 this was amended to keep up
with the “kill pigeonholes” trend.

Note that all these decisions relate to government power. What do we mean by that?
Mostly it is exercised under statute (as Crown Prerogative has shrunk over the years).
How can you tell if something is a government authority? Check they are working under



                                            12
statute, performing a public duty. The problem is in HYBRIDS (Canada Post – mail is
public, Purolator is private) and MARGINAL BODIES (Universities – public in granting
degrees, private in hiring for maintenance; Unions – private but if they are intransigent,
workers can appeal to the Labour Review Board [Union = private; bad union = admin
law]).

Cardinal (1985, SCC)
Facts: Deals with inmates rights (a great measure of the evolution of public sentiment).
Result: PF is important even if there is no impact on the merits of the case. Sort of
reawakened the Calgary Power categories, but mostly this restated Nicholson.

Knight v. Indian Head School (1990, SCC)
Facts: This problem, like Nicholson, revolves around the three types of employment
relationship. Knight was the director of education, a statutory appointee, and he refused
to renew his contract for less time than was originally offered. So he was terminated with
notice. The contract was made under the Education Act, which contemplated writing
contracts where the director could be dismissed without cause if there is notice. (Statute
expressly gave competence to contract on notice). As a backstop, the statute provided for
30 days notice (the contract provided for 3 months) The Board offered a one year
extension rather than the mentioned 2 year one, and no real cause. The Director could
either renegotiate or take the 3 months notice. Knight sued for wrongful dismissal.

Result:
Ct of Q’s Bench: as a statutory appointment, he can’t be dismissed without PF, but he got
that through a series of meetings where he had his lawyer present.

Sask Ct of Appeal: appeal allowed. Notwithstanding the contract (allowing termination
without cause) and the statutory jurisdiction to do so, he was the kind of employee who
could ONLY be dismissed for cause. He was entitled to PF: renegotiation meetings did
not count as notice and reply.

SCC (L’Heureux-Dube): This was fine as long as he got all the PF he deserved. The
Board had statutory jurisdiction to contract on dismissal and notice. There was no
protection in either the contract or statute from dismissal without cause. BUT
L’Heureux-Dube found a general right to PF absolutely independent of the statute. The
Board was within its rights on the merits, but they way they exercise those powers must
sill conform to the common law duty of fairness. Balanced the public interest (to
prevent the arbitrary exercise of power) against the stutory scheme (fire! No PF
necessary!)




                                            13
Ratio: there are three factors to examine to know whether a right to PF has been
triggered.
           (1) the nature of the decision;
                Not whether it was judicial or legislative (not Calgary Power). This is
                   unhelpful as both are exercises of government power, and both must
                   be fair.
                This is noting that not all admin bodies have to act fairly. It depends
                   on the context.
           (2) the relationship between the administrative body and the individual;
                employment, e.g. The closer, the more likely the body must act fairly
                   (BP - ah sweet feminist L’H-D)
                NB – L’H-D explicitly states that PF considerations now attach to at
                   pleasure dismissals (as independent procedural protections)
                This is meant to be a check on arbitrary action against any individual,
                   and is thus in the wide public interest.
           (3) the effect of the decision on the rights of the individual.
                The interest must have significant, there must be an important impact.
                   These are the only times that you get a right to PF.
                Recognizes that employment counts here and so PF is triggered

These questions may raise a presumption of a duty of fairness. If they do, you have to go
to the Statute to see whether it is explicitly rebutted.

This is the first analytical framework that gets at the trigger for PF. The decision states
that the statute cannot abrogate this freestanding procedural protection unless it is done
very clearly. Overriding question is what the circumstances demand in terms of PF.

Sopinka’s dissent: The process is to start with the statute, and search thoroughly for PF.
Does not agree that those three questions raise a presumption of a duty to act fairly that
must be directly rebutted by the statute. Instead, if it isn’t in the statute directly, look
then to “circumstances”. This is a critique of L’H-D’s contextualism – turns the
exception (PF duty) into the rule.

Comment: This not implying procedural rights into the statute; those are independent
rights (based on the principle that government power exercised in a way that impacts
individual rights must be in conformity with administrative law principles, including the
duty to act fairly). Lots of flexibility, no certainty (thus lots of judicial review). The
majority’s decision increased the focus on the contextual approach (esp. nature of
decision MAKER – search for the public interest and protect it with PF duty). This
decision extends the list of forums where PF arises; we’re a long way from the strict
relation to property rights (Cooper); on to employment etc. Depends on decision maker
> right at stake.




                                              14
Sept 15
Common Law on Limitation of Procedural Fairness Rights

Where courts decide that PF attaches, administrative efficiency slows down, contrary to
the original plan to expedite decision making. This balance means that courts are
unwilling to broaden PF too widely after Nicholson and Knight. The latter points out that
it is worth distinguishing general (legislative) decisions from specific (judicial) decisions
- the former being less likely to attract PF than the latter.

Inuit Tapirisat
[1980] 2 S.C.R. 735
Facts: National Telecommunications Act gives Cabinet the power to vary any CRTC
decision. CRTC tribunal makes a decision (after many interventions) on Bell rates in
1976. I.T. applied to condition this new rate schedule against extending service to the
North. I.T. went to Cabinet. Cabinet received Bell and CRTC submissions (while IT
only saw Bell’s). The Minister recommended no change, and the CRTC decision stood
(w/ no extension of service to the North). IT commenced judicial review in the federal
court on procedural fairness. Government moved to strike.
Result: At first instance, the gov’t won, but that was reversed on appeal. At the SCC,
Estey made two main observations:

   1. A statutory power vested in cabinet does not eliminate every chance for judicial
      review. There is no Cabinet immunity here.
   2. Since Nicholson, we don’t say leg/quasi-judicial – just whether the statute meant
      the decision maker to be subject to some level of procedural fairness.

So Estey goes on to review the statutory scheme. The power is given to cabinet to review
CRTC decisions because it’s highly political. Are there circumstances where CABINET
decisions, on any basis, attract procedural fairness? In principle, YES. But not in this
case because there is huge discretion in the statute and there are high efficiency concerns.
(For instance, if we require cabinet to give notice about a Bell decision, does it have to go
out to everyone with a phone?) So no PF here.

Estey distinguished Nicholson on the fact of there being a lis that was absent here. This
decision was much broader, as even “the Inuit” (as a group) weren’t the sole object of
this decision. In balancing the public interest, no PF attached.

Comment: Important for reviewing / explaining early jurisprudence on general vs.
specific administrative decision making. LIMITS: the duty of PF is always a function of
the statutory scheme. Does the nature of the decision maker and the type of decision give
rise to PF? What level of PF does the scheme demand?




                                             15
FAI Insurance (Australia)
Facts: Insurer’s license wasn’t going to be renewed. They wanted to “reply” but Cabinet
didn’t let them see the case against them or reply at all.
Result: Reviews Cdn case law limiting the duty of PF as re: Cabinet; and Australia found
it wanting. The highest court found for FAI (on the doctrine of legitimate expectations).
Cabinet is NOT immune from JR to show a duty of PF attaches. Despite Canada.
Cabinet decisions are political. They won’t always be reviewable but their decision may
attract some PF.
Comment: Australia dealt with the impractibility problem by reducing the content on PF
rather than blocking it altogether.

NB – Inuit Tapirisat vs FAI Insurance: note the general vs. specific decisions theme;
latter more specific and therefore attracts more PF.

Homex (1983, SCC)
Facts: On going dispute re: who (builder or municipality) has to install the infrastructure
in a new subdivision. The municipality passes as bylaw giving itself the right to control
H’s sales until they build the infrastructure.
Result: Strangely, it’s the dissent that is more picked up in future cases. Dickson
(dissent) reasons that because the municipality’s bylaw resolved a dispute, it was a quasi-
judicial decision. Classic one too, for involving property rights. As such, there is a duty
of fairness.

New: PF attackes to rulemaking in certain specific cases. This expands the forums –
rulemaking on policy decisions is still immune, but PF attaches when they are specific
decisions. A prima facie legislative decision does not create immunity against the duty o
ffairness. Here, Homex was entitled to PF that they had not received.

Comment: Still true that high policy content = low chance of judicial review on PF.

Bezaire v. Windsor Roman Catholic School Board (p 145)
Facts: The school board closed schools without consulting parents. They had passed
guidelines stating that they would get community input / dialogue before doing so, but
they didn’t. Not that guidelines are not binding, just policy statements on how delegated
authority will be exercised (this can always change – flexibility is in the public interest).
Parents complained – wanted PF as per guidelines.
Result: On Dist Ct used the guidelines to help interpret the need for PF and decided the
duty arose and was unmet and therefore quashed the decision.
Comment: Freestanding procedural right cannot be answered with the argument that the
decision wouldn’t change with a different process.




                                             16
Regulated Importers (Fed Ct App)
Facts: Import quota set by the gov’t – was there a duty of fairness in changing the quota
system when it has a high impact on a small group of long term players? Does this count
as a legislative or specific decision?
Result: Fed Trial Ct: small number of importers affected with interest so they should get
a right to participate. Fairly practical to do. Right to notice and reply (submissions)
granted. Calling it a policy decision isn’t the end of the story (like Homex).
Fed Ct App: there were a LOT of importers! Counts as a broad policy decision of
general application, like Inuit Tapirisat so no duty o ffairness arises.
Comment: Breathes life back into immunizing policy decisions against PF.


Common Law on the Interests Protected By the Duty of Fairness
Cardinal (1985, SCC)
Result: recall – “rights privileges or interests” at stake gives rise to duty of fairness
(LeDain)

Did this mean a right to property only? More? Or a personalization of the interest (is it,
in this context, really important to this person)?

Re Webb (1978, On Ct App)
Facts: Webb was a welfare recipient, entitled to apply for low-income housing. She had
a son who disturbed the neighbours / landlord. Webb may have been able to afford
regular rent, and in any case she had no statutory entitlement to the low income housing
per se. Did she have a right to PF before eviction?
Result: Before she got in to the low income housing, there were no PF rights. As a
tenant, however, the duty of PF was engaged. Similar to Nicholson – look at decision,
decision maker and impact – though this was before that. The impact was particularly
high on vulnerable ppl like Webb. Still have to show damage more than just characterize
here as vulnerable. But, despite all these lovely words, Webb did get notice and could
have replied so nothing was done wrong.
Comment: The trigger to PF depends on whether a vested right is in danger as opposed to
applying for a new right/license. Eventually, this became just a factor affecting the
content of PF rather than the trigger it was at this point. Note that this is going well
beyond property rights.

Hutville (1986, Sask)
Facts: Dr. Hutville was applying for a hospital staff position. It was governed by the
Hospital Act, which set out substantive criteria for the Hospital Board to review. Hutville
was turned down and refused a hearing.
Result: Going back to the application / pre-existing right distinction, generally there are
no PF rights this early (he’s just applying for a job). BUT looking at the whole statutory
scheme, the Hospital Board was required to look at a lot of things about Hutville, and
everyone in the medical community knew this process. Being turned down was a slur on
Hutville’s reputation. In this case, there should be a right for Hutville to complain about




                                               17
the process. [“Where a body’s decision will modify, extinguish or AFFECT a right or
interest (in a final way), there may be a duty of fairness.”]
Comment: Opens the door to new circumstances (i.e. applying for new interest)
triggering PF – but likely with less content. NB – public interest here in getting doctors
working.

See also the note below this on p 163, McKinnis – a boxing managers license was not
renewed. Not valued like the doctor, so no PF. But the key should be the impact on the
individual.

Lazarah (1973)
Facts: application for citizenship, subject to full discretion
Result: huge fundamental impact on applicant. So some PF had to attach
Comment: Distinction between denying the particular application and broader policy
decisions – PF attaches despite no pre-existing rights.


Doctrine of Legitimate Expectations

Beyond the traditional three questions (per Knight), there are other circumstances where a
duty of fairness will arise turning on past government behaviour (such as representations
on procedural rights and/or practice of granting procedural rights.)

This is more a British doctrine than a Canadian one. Here, we never really adopted the
idea that a certain power will always or never attract procedural fairness. We’re fully
contextual. The UK had been that categorical though, so they needed a doctrine
introducing some flexibility.


Schmidt (1969, Lord Denning)
Result: Can’t deprive the public of their legitimate expectations of government.
Comment: expressing “interest at stake” notion that was otherwise absent from the UK.

Liverpool (1962)
Facts: Municipality made representations to local taxi association that they wouldn’t
issue any more taxi plates without the associations input. Then they did it anyway.
Result: (Denning) Promise to the taxi drivers created a legitimate expectation and so the
right to be heard exists.


In Canada, it means that if gov’t has telegraphed its intention to include the public in
decisionmaking, then the right to PF arises. No real acceptance here. It’s accepted as a
question of policy only, there hasn’t been any practical application of the doctrine. The
following are a selection of legitimate expectations (LE) cases from Canada:




                                            18
Old St Boniface Residents Association (1990, SCC)
Facts: R.A. lead to believe that there would be no more development until a city plan
was adopted following public consultation.
Result: (Sopinka) LE gives hearing rights where otherwise there’s none (fills the gaps).
Arises if public official leads the public to believe their rights won’t be affected without
their consultation.
Comment: So, if you don’t pass the 3 step process (Knight) you may STILL get PF. For
instance, most policy decisions will be immune from PF on that analysis, but if they were
made after the government raised expectations that the public would be consulted first,
they may be reviewable.

Ref Re Canada Assistance Plan (SCC)
Facts: There was a federal statute permitting federal money to go to the provinces for
welfare programs. The Feds did agree to fund them. The agreement with B.C. included a
clause allowing termination of funding with notice. As part of deficit cutting, the Feds
cut back on B.C. funding. B.C. got no notice before they introduced this bill, which they
claimed infringed the legitimate expectations they had based on a prior contract.
Result: (Sopinka) First, the doctrine of LE does not give substantive rights. By asking
for the right to consent, or even veto, the Feds decisions via the doctrine of LE, B.C. was
pushing the doctrine far beyond the right to procedural fairness. Secondly, rules of PF do
not apply to a body exercising a purely legislative function (per Inuit Tapirisat).
Comment: When dealing with legislative decisions, no PF rights arise; only “abuse of
power”. There is NO WAY procedural fairness rights will ever affect the legislative
process in parliament.

CUPE (p 189)
Facts: Ontario’s PC government in the mid-90s took on a new power to appoint labour
arbitrators in the health sector under the Hospital Arbitrations Act. This area – and
labour arbitrations generally – is governed by a mass of statutes (incl. the Labour
Relations Act) and a longstanding practice that grants a huge participatory role to unions
in drawing up a roster of potential arbitrators. The Health Minister said something like
“We’re going back to the Old system” which to the unions meant they’d get their input
back. Then, the PCs changed the process anyway and appointed four former judges with
no labour expertise (without union input). CUPE challenged it: LE of involvement,
abuse of statutes, wrong appointments (merits – expertise is critical, therefore the gov’t
appointments were patently unreasonable).
Result: Ct of Appeal ON: CUPE was entitled to PF, to participate in deciding the
appointments because of the doctrine of legitimate expectations.
SCC: largely focused on merits, but on LE, reversed the Ct of App. LE does not create
the right for unions to participate in the process. It’s NOT that LE doesn’t exist, just that
it wasn’t here. The unions wanted a specific outcome, not just participation, which
looked too substantive. The PC process as a whole was overturned for patent
unreasonableness – on the merits, not the procedure.
Comment: Breathes substantive life into LE. LE looks at the conduct and representation
of public actors to see if they’ve clearly said an individual will retain a benefit or be
consulted before those are affected.



                                             19
Council of Civil Service Unions (House of Lords)
Facts: Did unions have to be involved in decisions re the continuing employment of
their members? Deals with deference to executive vs. upholding legitimate expectations
Result: normally, unions do have this role, and so had LE of PF. BUT it is OK that PF
didn’t happen here because the decision maker invoked national security.
Comment: Didn’t have to distinguish pure legislative decisions like Sopinka in Re: CAP


See also Red Hill Creek: can’t invoke LE to hold gov’t to funding commitments made by
previous gov’ts (or even PF in the process of making funding decisions). The only real
use of Les: if you’re on the margins after 3Qs in a general policy decision, this is one
more argument to make.

Puri v School Board
Facts: School Board decided to close the school without input despite promising to hear
the community.
Result: this decision was administrative, dealt with a specific group and had sufficient
impact that PF was triggered. LE was not addressed directly but they did say that the
guidelines raised reasonable expectations in parents that they would be consulted.
Nfld Ct App: no evidence that the people actually expected they would participate in the
process. Not just that gov’t had promised and we should hold them to it, but that the
public had to have heard and at least believed if not relied on that word. But they also
found that you didn’t need to resort to LE to find PF in this case; very much like Bezair.
Comment: M.A.> this is bad! PF is about the public interest in checking government
power. Why does it matter, if the message is out there, if a certain individual heard and
believed it? Public law legitimate expectations have a different content; we’re not talking
about detrimental reliance (promissory estoppel).

NB – if (per Puri) an individual has to have the expectation and show reliance and
damage, are we getting to promissory estoppel? No. See Re: CAP where Sopinka says
that LE does not create substantive rights, and focus on the fact that LE is about public
law.

Sept 17 (plus additions to CUPE)
Mt Sinai Hospital (SCC)
Facts: Quebec hospital, whose license lapsed, made an informal agreement with the
Ministry of Health to fix up some bits and reapply for a license shortly, which would be
granted. Then the government changed and the new Minister didn’t come through. The
Hospital sought mandamus.
Result: Que Sup Ct: asking for substantive right based on LE, NO. Que Ct of App:
agreed with lower court. BUT on public law estoppel granted mandamus. SCC: not LE
or PLE. The decision was already made by the previous Minister and there was no basis
for the new Minister to overturn it so mandamus was granted.
SCC Dissent: new minister is patently unreasonable, no supporting evidence, failed to
give proper PF (just assumes that PF was required, no comment on trigger or content)



                                            20
The case turned on bad evidence that the license would cost more than anticipated.
Comment: The majority’s comment on LE revealed the following:
           - LE ≠ substantive rights
           - LE is more British than Canadian
           - Here, admin JR is about looking at the nature of the decision and decision
              maker; there LE looks at the behaviour of the decision maker.
           - LE is NOT estoppel as there is no reliance requirement. This is about
              checking gov’t, always go back to those policy underpinnings, which
              include the public interest in a gov’t that acts with predictability.
           - Don’t worry about LE – if there’s high policy content, we’re unlikely to
              interfere.
           - Cf. Binnie on public vs private estoppel (the former exists, but must be
              found in statute and relies on a great deal of evidence)


Common Law on Fairness with Non-Final Administrative Decisions

Recall: in Knight, L’H-D said that non-final decisions do not traditionally attract
procedural fairness. If there are further appeals within the administrative structure, the
first set doesn’t have to have PF. The question is if you get it at the first stage, is it absent
at the second? At the second, but not the first? Neither? Traditionally, it only attaches at
the second or final level. But, this can vary if the lower level decisions are just rubber
stamped at the higer level.

Abel
Facts: Guilty by reason of insanity, held at pleasure subject to annual reviews. The
Board developed recommendation on whether to release or remand the patient for the
Lieutenant Governon, based on input from the caregivers. Here, the lawyers for Abel
sought disclosure of caregiver reports. Review board decided they didn’t have the
jurisdiction to order disclosure. That decision was reviewed by the courts.
Result: Review board’s decision has a huge effect on the final impact on the individual.
The argument that the board only issues recommendations (not decisions) and thus is not
subject to PF requirements doesn’t hold water for the court. The interest is huge.
Additionally, the proximity of the board’s process to the final decision is very small. Ask
whether it is likely to be changed by the higher ups, and act accordingly.
Comment: Per Nicholson, look for hallmarks of judicial decision but look especially at
impacts of the result to see if PF is necessary. Surely triggered here. Natural justice:
need to know the case you have to meet, so there was a breach of the duty to act fairly
here.

See notes on follow-up cases in the text:
           - Monroe (Sask) followed Abel – does teacher get a copy of a disciplinary
               report along with the Minister? Could’ve had a huge impact – its lack of
               technical finality doesn’t block PF.




                                               21
           -   Conway (ON) – PF at final stage (lieutenant governor) exists even if you
               got it at a previous stage – got disclosure and a hearing (thru written
               submissions). High water mark.
           -   Boshay (Aust) – see process as a whole – some PF en route, not
               necessarily all PF at all levels – see the statute for guidelines.

Point: remains some reluctance in the courts to grant PF in decisions that aren’t final. If
there is a real chance to get meaningful PF at a higher level, it is unlikely they’ll be
granted earlier.




                                             22
Constitutional Thresholds
There are two non-common law instruments that trigger the right to procedural fairness –
the Bill of Rights and the Charter. So far, we’ve seen readiness to read PF into the statute
(or see the presumption of fairness not denied by statute). Likewise, these constitutional
documents go for PF in administrative decisions. The process is this:

           -   3 Knight questions = right to PF
           -   Statute = PF rights explicitly denied
           -   Constitution = statute struck down for unfairness, PF granted

This is how the constitution is used to discover if PF is required. It is unclear as yet how
far this goes (i.e. the full extent of the application of Charter s. 7 and BoRs 2e).

Bill of Rights
This is a regular statute but also quasi constitutional by applying to all present and future
federal statutes. It applies to the “Laws of Canda” and “any order, rule or regulation
thereunder” - catches decisions made by delegated authorities.

The Bill of Rights has two key sections: 1 (on p. 208) which protects the right of the
“individual” (read: corp) to life, liberty, security of person, and “enjoyment of property”
subject to due process of law. Section 2e protects the right to a fair hearing in the
DETERMINATION of rights and obligations.

2e was supposed to codify CL, but it has been interpreted much more widely.

Charter
Applies throughout Canada by virtue of s. 32 (to governments and legislatures of Canada
and the provinces). The reference to “government” shrinks the scope of charter
application from the broader sphere that the CL on administrative law principles applies
to.

This raises the question “What is sufficiently ‘government’ to attract Charter rights?”
The leading case is McKinney v. U Guelph where a university was deemed not to be a
government actor for the purposes of charter application. Finding government action for
the Charter is a narrower exercise than finding government power in administrative law
more broadly. Note that the same institutions can attract Charter scrutiny for some
activities and not for others. The Charter does not reach fed/prov incorporated companies
– articles of incorporation are not sufficient without a public purpose.

Compared
  1. Charter scrutiny turns on whether the nature of the power is on the high end of
     gov’t power. Arm’s length operations are better caught by the Bill of Rights.
  2. The Charter does not protect corporations; the BoR does. (Corporations may
     have standing to challenge a statute they are hurt by on the grounds that it
     infringes individual rights, and if successful they can benefit from the remedy).


                                             23
   3. The BoR’s protects property rights, while the Charter does not protect any pure
      economic rights.
              Authorson: trusts established by the government to the benefit of disabled
              vets were never invested, thus no interest / returns. Vets sued after
              Parliament passed a statute saying there was never an obligation to so
              invest. SCC: the procedural fairness rights w/r/t the passage of that bill do
              not extend to the substantive property rights claimed by the vets.
   4. There is no s. 1 (notwithstanding) analysis in the Bill of Rights (but a similar
      analysis arguably takes place under the process of defining the content of the
      right).
   5. By using the word “determination”, the Bill of Rights does not limit protection to
      those who are protecting an existing right. It permits the protection of those
      seeking or pursuing a right. Pretty broad.

In the result, the Charter is much narrower than the Bill of Rights. Note that the remedy
under the Bill of Rights is to render the statute “inoperative” to the extent of the
inconsistency.

The National Anti-Poverty Organization v. A-G Canada
[1989] S.C.C.A. No. 300
Facts: An appeal from a CRTC decision to Cabinet. Very same facts as Inuit Tapirisat
but they relied on the Charter, while NAPO raised the Bill of Rights. I.T. was decided at
the SCC just beforehand.
Result: Fed Ct. held that cabinet was determining rights and obligations within the
meaning of 2e and therefore had to do so fairly (per due process) according to standards
of fundamental justice. That meant a fair hearing at Cabinet level. Why is this different
from Inuit Tapirisat? The Fed Ct decided that the SCC had decided per incuriam (by
having overlooked s. 2e) so trial judge was free to apply it here.

Fed Ct of Appeal: rejected the per incuriam line. The real question was whether cabinet
was determining rights and obligations per s. 2e. App Ct said NO, NAPO’s rights and
obligations weren’t being determined. The statutory scheme allowing intervenor rights at
the CRTC did not trigger a right to be determined at cabinet. On these facts, s. 2e had no
application in terms of finding PF at cabinet.

Comment: did this block ALL PF from cabinet per s. 2e? No, the Fed Ct App just did not
want to overrule Inuit Tapirisat on a basis that hadn’t been argued.




                                            24
Charter Case Law

Which section is most appropriate in the administrative setting?
 Section 7 is broader, but says nothing about a hearing per say. It says that everything
  must be done according to the principles of fundamental justice, and thus has more
  substantive content.
 Earlier, s. 15 (equality) rights were argued as gounds to find PF, but Andrews (no
  guarantee of equality between participants in administrative settings) stopped that
  short.
 The fair trial rights set out in s. 11 apply to the criminal context only, a full court.

For these reasons, all admin challenges are slotted under the s. 7 framework, informed by
a general (contextual) “Charter Values” approach. The argument is that the fundamental
principles of justice protected in s. 7 find their expression in other sections of the Charter,
i.e. it includes the protection of s. 11 for hearings etc.

Singh v. Canada (Minister of Employment and Immigration)
[1985] 1 S.C.R. 177
Major case on s.7 in the admin setting
Facts: Addresses the statutory scheme for determining if an indivudal is a Convention
Refugee. Individuals first land and Canada and follow a set of procedures to seek
residency. If it fails, a last refuge (before deportation) is to claim U.N. refugee status.
Once that claim has been made, the deportation hearing is put on hold to follow
Convention procedures:
           - a senior immigration official interviews the claimant
           - a transcript of that interview goes to the Minister
           - the Minister sends the transcript to her status advisory committee
           - the SAC is composed of “experts” on global political problems, and can
                evaluate the merits of the claim set out in the transcript and make a
                recommendation to the Minister
           - the Minister makes a decision based heavily on the recommendation
           - claimant can go to the immigration appeal board and make written
                submissions BUT you do not get the benefit of seeing the material that the
                Minister relied on in making the decision.
           - The appeal will only be allowed if they are convince that “it is more likely
                than not that the claim would succeed in a full hearing”.

Result: SCC split 3-3 with Ritchie abstaining. They were agreed in the result, but not the
reasoning, so there are two decisions: Wilson (Charter s. 7 is engaged, violated and
unjustified) and Beetz (Bill of Rights provides sufficient remedy without going to the
Charter). Later, more reliance placed on Wilson than Beetz.

       Wilson’s Judgement: did this refugee claimant procedure deny the claimant
       appropriate procedural fairness? The claimants weren’t asking for the right to
       stay in Canada, just for a fair hearing to determine that right. Wilson starts with




                                              25
the statutory scheme, including the UN definition of a refugee implicating a well-
founded fear of persecution.

At the SAC. Wilson found it was wrong to characterize the interview stage as
adversarial. But that is the only stage where the claimant has any input. They are
isolated from the SAC. That is acceptable because there is a later stage (the
appeal board or JR if the Minister acts arbitrarily) where the claimant can make
their case. So she finds the first stage is acceptable and goes on to look at the
appeal scheme.

At the appeal board. If the board decides to proceed with a full refugee hearing,
the full set of natural justice rights kicks in. This is clearly set out in the statute.
The only question is whether parliament’s scheme – to limit PF until that full
hearing – passes charter scrutiny.

Charter analysis: engaged? Section 7 requires a person (yes) and an implication
of either life, liberty or security rights. By definition, a determination of the right
of refuge engages these. The security of the person includes the freedom from the
THREAT of torture – no need for certainty to get within the shelter of s. 7. Must
focus on the impact on the individual. Wilson calls it “unthinkable” that the
Carter wouldn’t entitle a refugee claimant to s. 7 procedural fairness protection
during the determination of status.

Charter analysis: violated? PF content will vary with each statutory scheme and
context, and does not necessarily mean an oral hearing. Here, the problem with
the procedure was that the claimant had no way of knowing the case against him
from the SAC. That cannot be reconciled with s. 7 and so the right was violated.

Charter analysis: justified? The gov’t submitted very little evidence on the
justification beyond saying that other countries do this and suggesting further PF
would create a substantial administrative burden. Wilson hates the second line of
argument, and denies it here, but leaves the door open for this argument in the
future. In this case, the violation is not justified by s.1.

Beetz’s judgement: (with Estey, McIntyre): the appeal was allowed (as with
Wilson) because the scheme is rendered inoperative under the Bill of Rights.
There is no need to use the Charter here. Why? B wants to give life to the Bill of
Rights and has some reluctance in 1985 to spread the application of the Charter to
the administrative setting. The Charter has not rendered the Bill of Rights
obsolete – shold not lose the cumulative effect of other statements of HR.
Core question: did the procedure of determining status conflict with s. 2e? Must
compared the broad s. 1 (due process) right to the s. 2e (fair hearing to determine
rights and obligations). 2e is definitely engaged. Rejects the argument that status
is a privilege that falls outside the scope of the Bill of Rights. There is no
question then that this procedure is unfair.




                                       26
       Remedy: doesn’t necessarily require an oral hearing. But under this scheme,
       Singh didn’t get to make his case out to any decision maker. Beetz then lists a
       series of factors (applicable under the Bill of Righs AND the Charter) useful to
       determine the procedural content of the principles of fundamental justice:
           - nature of the legal rights at issue
           - severity of consequences to the individual
       In the result, Singh should’ve had at least one oral hearing (esp. as credibility is
       an issue. Otherwise, the scheme falls short of the required principles of
       fundamental justice.

Comment: In the aftermath of Singh, we knew two things about the content of PF –
   1. an oral hearing may or may not be required based on Beetz’s two factors and
       credibility issues
   2. there is still room for a s. 1 justification to block full PF rights.
The aftermath included a massive backlog and high costs.

The key here was that the claimant had no access to any of the decisionmakers. The
court basically rules that in this process somewhere an oral hearing is required to uphold
s.7. The remedy remanded the claimants to the immigration appeal board for a hearing
on the merits. The part of the statute requiring the board to decide if the claimant was
more likely than not to succeedd before getting a hearing was struck out.

Tirelli (1992, SCC)
Facts: Same facts as Singh, but a massively different approach (clean hands issues?)
Tirelli, a permanent resident, was ordered deported after conviction for a major felony
(per ministerial discretion, subject to appeal). T appeals to the immigration appeal board.
While that’s pending, the solicitor general and the minister file a joint report with the
Canadian Intelligence Review Committee (CIRC). The report claims that if T is allowed
to stay, he would be likely to be involved in organized crime. Therefore, the CIRC holds
a hearing under their procedures, which allows the individual to be excluded (to protect
government informants > respect right to confront accusers). CIRC ruled that T should
be deported on Cabinet Order (which would stay the deportation hearing). T raises
constitutional questions to the federal court (Charter s. 7, 12, 15) re: the Immigration Act
and the legislation enabling the CIRC procedures which excluded him from a hearing on
his own rights.

Result: The Fed Ct of App ruled that none of these statutes violated the Charter, but the
issuance of a Cabinet Order on CIRC’s recommendation did violate s. 7 and wasn’t saved
by s. 1. At the SCC (Sopinka, 9-0), it was held that while T was excluded he got PF in
the form of a summary of evidence against him and the right to cross-examine the
RCMP. Here, the right to stay is balanced against national security and protecting the
informant. CIRC procedures do try to balance these and give PF where possible, so no
problem, and no violation in the Cabinet deportation order.

Comment: PF is always a blance of the public interest against the individual interest.




                                             27
Sopinka, following the backlog created by Singh, allowed automatic deporation for
serious criminal convicts that have permanent resident status. Reluctance to apply s. 7 =
says that even if s. 7 was engaged, the national security procedure was in accordance with
the principles of fundamental justice.

While these cases demonstrate that there is no distinction between a right or a privilege in
seeking constitutional review, you still have to find a s. 7 right (life, liberty or security).
What is less clear is whether social or economic rights are engaged by s.7 (so as to review
for PF)

Wilson v. B.C. Medical Services Association
Facts: The MSA distributed licenses to doctors in the province based on geographic
needs. This was a law that was found to violate doctors Charter rights to mobility and
liberty (6,7). New legislation was created but it still limited the number of doctors that
could practice in a certain region. This is a new challenged brought by doctors licensed
in other provinces and some BC doctors forced to work way up north rather than at home
in Vancouver. Q: does s. 7 liberty entail the right to practice medicine in the province
without geographic restriction?
Result: At first instance, the right to work was held to be a purely economic right and
thus outside the scope of s.7.

At the appeal court, the right to pursue a livelihood in a chosen profession included
notions of dignity and self-worth in deciding where to work and so s. 7 liberty was
engaged. With the following caveats:
           - pure economic rights aren’t protected by the Charter – this is not a barrier
               as more is implicated here than a pure economic right.
           - It’s OK to regulate the professions – fine and good, just can’t be done in
               such a way to interfere with liberty beyond the safety of s. 1
           - There is no common law “right to work” – fine, but there is a right to
               pursue a livelihood ()

Comment: Lamer later suggested that this decision was wrong (see p 243). S. 7 interests
are limited to restrictions by the state on physical liberty, physical or mental security or
restrictions on liberty by using the threat of punishment. ON Ct – no right to pursue a
profession in s. 7

Godboat 1997
– SCC held that a bylaw requiring municipal employees to live within the boundaries
violates s. 7

Gosling 1994
- Does s. 7 includes subsistence welfare right? Failed on the facts but the court left it
open for social rights on better facts in the future.




                                              28
It is unclear what facts you need to get out of pure economic rights and into the
protection of s. 7 for the purposes of securing procedural fairness. The question for the
future is how far does s. 7 apply to administrative law processes (not criminal / civil)?
What do you need to show for the Charter to require PF?

New Brunswick v. G.J.
Facts: a custody order in favour of the state was extended. The mother sued.
Result: the separation of mother and child engaged the mother’s security interest.
Protection of her physical and mental integrity fits within the scope of s.7.
Comment: This is part of an on-going search for social interests protected by s. 7. The
court stressed that it must be more than mere anxiety to fit here; we’re talking serious,
objective interference with psychological integrity (which was actually found here!)

Blencoe v. British Columbia (Human Rights Commission)
[2000] 2 S.C.R. 307
Facts: A B.C. Minister was accused of sexual harassment and harried into resignation. 2
more ppl laid complaints against him at the Human Rights Commission. There was then
a 3 year delay between the complaints and the hearing. B sought a stay based on the
delay.
Result: Trial – no stay, but findings on the high impacts of the process. App Ct: s. 7
security rights are engaged. SCC (Bastarache):

   1. Did the Charter apply to the HR Commission?
      - Yes. It’s quasi-independent, but still a statutory creature (more Eldridge than
      McKinney) Powers of investigation / prosecution in pursuit of governmental goal
      of equality.
   2. Is s. 7 engaged?
      - now broader than criminal only; it CAN be applied in the administrative setting
           a. Liberty?
           - Godboat – protects rights to make inherently personal choices, like where
                to establish one’s home.
           - This is not about those inherently personal choices, Bastarache kills the
                “personal autonomy” category
           b. Security?
           - NB v GJ – psychological integrity interference triggers s. 7. That was
           subject to (i) serious interference (high threshold) and (ii) state-imposed
           psychological interence. Here it may have been the media. NOT
           ENGAGED. Protection of reputation does not fit in protection of the security
           or liberty interests.

   3. Do other admin law principles offer relief?
         - Delay? When further delay adds up to abuse of process, the remedy is a
             stay.
         - Usually not sufficient on its own. Delay has to be long enough to engage
             the public interest in such a way that they would demand a stay. The




                                            29
               threshold is still high (as the process includes a lot of steps, would have to
               show it was way way too long…).
            - This is a contextual question. Ask:
                     i. What is the nature of the case?
                    ii. Who caused the delay?
                   iii. What is the complexity?
                   iv. What is the impact of the delay?
            - The SCC was critical of the delay. But it was not out of step with other
               cases, so they could not find it was an abuse of process. Essentially, the
               harm did not come from the delay.
So, the stay was lifted and the hearing went forward.

Dissent: (LeBel) on reasons, agreed in the result. Shouldn’t be a Charter analysis.
Delay is a core issue in general judicial review and the principles of administrative law.
Look for abuse of process and decry unfairness, not life/liberty/security! Very critical of
this delay – should be some administrative remedy, but not abuse so not staying the
process. The stay ignores the complainants. The remedy instead should be to expedite
the hearing. Emphatic: don’t resort so quickly to the Charter in the administrative
context – start with the common law.

Comment: QL HEADNOTE: “Section 7 of the Charter can extend beyond the sphere of
criminal law, at least where there is state action which directly engages the justice system
and its administration. If a case arises in the human rights context which, on its facts,
meets the usual s. 7 threshold requirements, there is no specific bar against such a claim
and s. 7 may be engaged.” So while s. 7 was not engaged on these facts, admin setting
facts COULD engage s. 7

Conclusion

This section was about how to engage a higher set of PF rights after you exhaust the CL.
So, argue the common law first, then the Bill of Rights and Charter where possible when
saying that the process was not fundamentally fair.




                                             30
Procedural Propriety: The Standard of Review

Introduction
Judicial review: did the agency give sufficient procedural fairness rights (like a de nova
review) implies no deference on procedural rules at all. But there is an argument that
courts shouldn’t be starting from square one, but rather reviewing to see if the procedures
are reasonable. Why? Same reasons as for deference on the merits – admin has the
expertise, the experience, the understanding of resource constraints and competing
demands, and know best what PF is sensible. Therefore, JR de nova is not always the
best approach.

Bibeault (1984, SCC)
[Signal court would defer on procedure]
Facts: Laobur context. The Statute gave the labour board express powers to create
procedures on standing, and had a strong privative clause (limiting the appeal rights,
expecting courts not to interfere with the Board’s decision)
Result: SCC decided to defer to the Board on its PF procedures. Lamer: court will only
intervene if board interprets its discretion under the statute in a way that is patently
unreasonable.
Comment: There have been attempts to limit that dicta. Later decisions: if the statute
expressly gives discretionary procedural powers, then we will defer. But much later,
Baker suggests that deference be renewed. In Baker, on e factor to consider in reviewin
for PF is the agency’s choice of procedure, either rwhere the statute expressly leaves
procedure to the Board or where the statute suggests that the Board has an expertise in its
procedure.

Note that we have already seen procedural deference in the following cases:
           - Abel: mental patient seeking report disclosure – ct ruled that Board had the
              jurisdiction to decide on disclosure, but remanded the decision to the
              Board to decide if they would or not.
           - D&B Companies: (What documents had to be shared at the competition
              tribunal) – Fed Ct App = tribunal charged with protecting competition
              therefore decisions based on close balancing of interests; they’re better
              suidted to deciding procedure than we are.

Baker v. Canada (Minister of Citizenship and Immigration)
[1999] 2 S.C.R. 817
See text ch 3 – hallmark decision on judicial review on the standard of review on
procedure and merits. JR is available to challenge both the actual decision and how the
decision was made. The later is the category of procedural fairness we’ve been dealing
with so far.
Facts: The Immigration Act governs applications for admission to the country.
Generally, the applicant must be out of the Canada, unless they get Ministerial
permission on humanitarian and compassionate grounds to apply from within.




                                            31
Mrs. Baker was Jamaican, entered in 1981 as a visitor and worked illegally. She had four
kids here, two were still in her care. She was a paranoid schizophrenic, but well
medicated and under control now, in 1994. Applies for permanent resident status on
H&C grounds.

Rejected in a letter with no reasons. When her lawyer sought reasons, all they got was
the notes made by the immigration officer interview (see Singh). The notes were pretty
discriminatory: “single mom! Welfare! Mental illness!” – just mean. So she was ordered
deported. Pending this appeal, the order was stayed. The challenge was on two
grounds: there was no procedural fairness (no reasons or chance to appeal to decision
maker) and there was a reasonable apprehension of bias.

Result:
Trial: According to the Immigration Act, you get JR only with leave from the Fed Ct trial
division (not automatic). Baker got leave and had a trial. The Fed Ct trial division found
no evidence of bias and no PF problems. To appeal, the Immigration Act requires that the
ct then certify “a question of importance.” The trial judge certified: “Is this process
consistent with Canada’s obligations under the Convention of the Rights of the Child
(CRC)?”

Appeal: The CRC makes the best interests of the child the primary consideration, but
Canada had only signed (NOT RATIFIED) the Convention. So the Appeal Ct focused on
that question, and emphasized that it was not a part of Cdn law and they could not (would
not) override the will of Parliament.

SCC: Not a Charter case, just administrative law and statutory interpretation.
  1. The question of importance (whether the Minister’s decision had to be based on
     the CRC): did not limit the purview of the SCC’s review here. Can be broader.
  2. Start with procedural fairness
         a. What’s the scheme?
                    Nature of the scheme: H&C exception
                    Nature of decision: adjudicative? See guidelines on two grounds
                      for permitting this exception - public policy grounds (the person
                      is contributing) and H&C grounds (unusual hardship, splitting up
                      families)
                    Impact on the individual – high.
         b. So was there enough procedural fairness?
                    Enough participation? The kids weren’t involved at all, there
                      was no oral hearing, no reasons given.
                    Legitimate expectations: did the CRC raise expectations? NO,
                      that doesn’t count as an official representation.
                    Some PF is required, but what content? Still a contextual
                      question with a variable answer. Factors include: type of
                      decision (not adjudicative here), finality, importance,
                      administrative discretion. Here, you balance these factors to see
                      that something more than minimal PF is required here.


                                           32
                  Result: must have a chance to make your case, which includes
                   knowing the case against you. Not necessarily an oral hearing,
                   but at least a chance to make written submissions.
      c. Was there a reasonable apprehension of bias?
                 A reasonable person needs to believe the decision maker is
                   unbiased.
                 Tough to reconcile lack of bias with “experience”. But in this
                   case, there must be high standards of unbiased decision makers.
                 The immigration officer was clearly biased.
                 REMEDY: remand decision.
3. Go on to the merits (NOT considered obiter, though remedy is already granted)
      a. How much deference does the tribunal get?
                 Ask not “Was the decision discretionary?” but be “pragmatic and
                   functional” (per Bibeault and Pushpanathan).
                 Pragmatic and functional approach decides the standard of
                   review and decides a wider range of types of decisions that we
                   leave alone (not just discretionary ones). The P&F approach is a
                   balancing of the following factors:
                   o Privative clause?
                            Here: no, but Immigration Act does limit access to JR
                   o Expertise?
                            Here, there is some expertise in the Min’s delegates
                                (mid-spectrum)
                   o Purpose of the Act consistent with discretion?
                            It is, which implies we pay more deference
                   o Nature of the problem: question of law or fact for the Min?
                            Question of fact, again with the deference.
                 These factors help figure out where you are on deference. You
                   sort of have three choices:
                   o Near total deference
                            The standard of review is that only decisions that are
                                patently unreasonable are overturned.
                   o Probing analysis
                            The standard of review is called reasonableness
                                simpiliciter; the question is “Can the decision stand
                                up to a somewhat probing analysis?” Only
                                overturned if it can’t.
                   o No deference at all
                            The reviewing judge must AGREE with the decision;
                                the standard of review is correctness.
                 There is debate about whether reasonableness simpliciter is
                   closer to PU or correctness, or whether it is a broad middle
                   ground, or whether you can be highly reasonable, less reasonable
                   and oh dear god I wish I was a travel agent.
                 What does this spectrum do? It provides the answer to the first
                   question a judge has to answer when asked to review an


                                       33
                        administrative decision. How should I do it? How intently does
                        Parliament want me to review this decision? Almost all patently
                        unreasonable decisions will be overturned, no matter how much
                        deference is demanded. At the other end, if NO deference is
                        required at all, the judge can fully review the decision and can
                        overturn it if they think for any reason that it isn’t correct.
                        Everything else gets the “reasonableness” standard. There, the
                        judge does not have to agree, but must find that a right-thinking
                        person could come to that decision.

           b. Reasonableness Simpliciter analysis in Baker
                      Iacobucci, in Southam, said a decision is unreasonable if it does
                          not stand up to a probing examination.
                      Here, the approach was totally dismissive of the interests of the
                          children. The Best Interests test is integral to the H&C
                          examination. The immigration officers’s recommendations
                          cannot stand up to a reasonably probing examination.
                      While the best interests of the child, per CRC, are not Canadian
                          law, they can be used as a factor in contextual decision making at
                          the Ministerial level.
                      Finally, the Ministry’s guidelines on H&C grounds discuss
                          family attachments as a reason not to deport an individual. Noen
                          of this sympathy shows up in the officer’s notes, especially
                          regarding the impact on the kids. This supports the decision to
                          remand.
Comment: The Dissent took issue with using unratified international law as part of the
contextual analysis. It is a massive issue and usurps the role of Parliament,
overempowers the executive, and otherwise messes with the Constitution.




                                            34
The Content of Procedural Fairness

Introduction
This section deals with the “menu items” involved in PF. We’re talking about notice,
disclosure, hearing, cross-examination rights, reasons, appeals etc. Much of this is
governed by statute – the S.P.P.A. in Ontario.

Baker v. Canada (Minister of Citizenship and Immigration)
[1999] 2 S.C.R. 817
Facts: (see above)
Comment: This case also commented on the content of procedural fairness: as in
Knight, it is a contextual question based on –
         The nature of the decision (judicial / administrative)
         Nature of the statutory scheme (further appeal / final decision)
         Importance of decision to the individual
         Legitimate expectations (here – no, the kind of gov’t representation here did
            not give rise to LE)
         Was there discretion on procedure granted to the tribunal?
In Baker, the procedural fairness was acceptable, but a rehearing was required for bias.
Court goes on to decision the merits, including how much they were supposed to defer on
the originally decision (based on legislative intent). Good case on applying Bibeault.

Framework
This section asks, How do you calibrate procedural fairness? What menu items of
procedural fairness are available? How do you decide which are appropriate when?
There are two main principles, based in natural justice, underpinning procedural fairness:

   1. The Right to be heard (audi alteram partem)
       Can be either oral or written here
          Recall Nicholson: procedural fairness must include the right to be heard,
             but not necessarily an oral hearing.
       Can be a full hearing or a simple interview (Baker)
       Traditionally, this meant an oral, face-to-face; usually only triggered in a
         judicial setting
       The right to be heard was modified in the shift from natural justice (judicial)
         to procedural fairness in administrative (any extra-judicial) settings.
       As a part of procedural fairness, it includes incidental rights like notice,
         disclosure, cross-examination etc.
       The notes on the SPPA below are suggestive of what incidental rights may be
         available, in Ontario and elsewhere.
       The right to be heard is not “efficient”, but there is this sense of the sacred
         about it.
       Recall Singh (Beetz): offended by no oral hearing in front of the decision
         maker; (Wilson): where credibility is an issue, an oral hearing should be
         available.



                                            35
          Any given type of statutory decision will not always or never get an oral
           hearing. The spectrum of decisions ranges from refugee hearings to drivers
           licence revocations. We always approach it contextually, examining the
           statute and the facts at hand. This is different from the UK’s categorical
           approach (this decision = this fairness). This is why we don’t need legitimate
           expectations as a safety valve.

    2. The right to an unbiased decision maker (nemo judex)
        Contrast with value of experience (familiarity = bias)
        A decision maker who a reasonable person, having thought about it, would
          believe will decide the question in a fair way.
        [Notes on bias are picked up below after exploring the right to be heard]

Statutory Powers Procedure Act and Other Procedural Codes

This is an Ontario Act, from 1971 that codifies common law rules on procedural fairness
in administrative settings. It is premised on court rules (civil procedure) but with less
formality. It does a number of things:

   Defines the scope of application – s. 3
     There must be a proceeding
     There must be the exercise of a statutory power of decision
     There must be a conferred or delegated power
     The tribunal must be required by statute or otherwise to hold a hearing
     Exception: this Act does not apply to arbitrations or investigations – while not
        mandatory in these instances, they may follow the SPPA.
   Waiver of application: parties can agree not to use the SPPA
   Allows written hearings
   Gives a checklist of certain rights:
     Right to counsel
     Right to call witnesses
     Right to cross examine witnesses
     Right to written reasons
   Provides general rules of evidence – all relevant evidence is admissible, less privilege
    (that’s the only exclusionary rule in admin settings)
   Requires a written hearing record (NOT a transcript)
   Appeal provisions: an appeal will operate as a stay of the decision, but judicial review
    is not considered an appeal for this purpose.
   Right to control procedure: tribunals have this as a delegated, not inherent jurisdiction

SPPA is a hallmark, and a first tep to show what the content of the procedural fairness
checklist might be. (Note: the Harris government created fifty Acts excluding the SPPA).
This checklist is useful at the margins of application / non-application.




                                             36
Re: Dowing (On Ct App)
Result: Parliament excluding the application of the SPPA does not mean that they are
denying common law rights to procedural fairness. They would have to be extremely
clear to do that.

Oral Hearings

Masters v. Ontario
Facts: Provincial crown prerogative to appoint the Ontario agent to New York. The
agent was accused of sexual harassment. He was investigated, and the conclusion was
that 7 women were harassed. The Premier decided, based on the report and Masters’
reply, to recall him from New York and reassign him elsewhere. Masters sought judicial
review of the recall decision and the investigation process.

After the complaints were lodged, the Premier appointed an investigator. The
Investigator wrote to Masters detailing the complaints. Masters was interviewed and
given the right to correct the transcript. The Investigatory met with 45 witnesses.
Masters was not invited to the meetings, but his counsel could meet with any witnesses
who volunteere. Masters was not give the questions, answers or name of the
interviewers.

Result: The question before the reviewing court was whether Masters got a hearing
before an unbiased decisionmaker. His lack of access to the witnesses looked like bias.
Much of this issue turned on credibility. As per Baker, credibility issues will normally
require that the right to be heard is an oral hearing.

The court noted that he did get a fair bit of procedural fairness: notice, right to written
submissions, an interview with the investigator and the right to correct the record.

What did the context demand? Unlike Nicholson or Knight, this was a classic at pleasure
appointment, subject to high discretion. The recall was nearly a legislative decision, and
so per Inuit Tavarasand no PF was necessary. A good deal of PF was granted anyway,
and the process was not arbitrary or meanspirited. However, the impact was very
personalized and it had a high impact on the individual’s life and reputation.

In the result, Masters was given all that he deserved and possibly more. Nothing here
demands withness access. The SPPA does not apply, which is a signal for lower PF
anyway. (Why not? Characterized as an investigation > hearing.)

Comment: This is about L’Heureux-Dube (Singh) linking credibility to an oral hearing.

Kalm v. University of Ottawa (On Ct App, 1997)
Facts: student challenged a grade on an evidence exam on the grounds that there had
been an error or injustice. Regulations said the grade could be overturned on these
grounds. Her written submission to faculty council was denied. She appealed and was
denied at Senate. She sought judicial review at divisional court, and failed, so this is a



                                              37
court of appeal decision. Issue: because she though it was two hours, she spent the extra
½ hour writing an “insert” that got lost. Impact: failure in this course meant repeating a
semester.

Result: Faculty committee evaluated a series of factors in denying the request: how
strictly exams are administered, how this had never happened before, how the other
books did not indicate the existence of an ‘insert’, that her third book was nearly empty
so there was no need for an insert (the Dean suggesting it did not exist).
1. Was PF required? Undoubtedly (at a professional faculty)
2. What was its content?
            - an oral hearing because credibility was at issue and the consequences
               were high. (Issue: was there a 4th booklet? K: there was. Therefore,
               credibility).
            - addressing the specific situation > those general factors
            - Kalm should’ve been given a right of reply to faculty

Finlayson: ‘powerful dissent’– basically a gut reaction to the facts (a failing law student).
The question was not credibility but whether there was an error or injustice under the
regulations. Demands of fairness at admin tribunals don’t always require a hearing. Cts
will give tribunals deference on procedure to strike a balance between PF and efficiency.
A written hearing will often be enough if the reviewing court gets a sense that the
individual got a right to be heard. Exception in Singh – oral hearing not necessary unless
credibility is in issue – does not apply here; Singh can be distinguished all sorts of way
(consequences, Charter s. 7 engaged, refugee vs. discipline committee, non-adversarial,
no allegations of dishonesty? Just no comparison.) Issue and result were not sufficiently
serious to warrant an oral hearing.

Comment: (Basically, F didn’t think it would have made any difference with an oral
hearing, or even if they had found that fourth booklet. Probably not a great guiding
principle – seeing justice done, getting your day in court, there are reasons for giving
procedural fairness even if it doesn’t change the result.)

OCT 15 [online lecture]

Openness of Hearings?
 It was up to tribunals whether or not their proceedings would be open to the public.
   Now, the presumption is that they will be open (codified in SPPA). Many statutes
   and regs mandate this presumption.
 Typically, an exception is available to the tribunal to accommodate competing
   interests. There is a limited discretion in the SPPA to afford confidentiality.
    CSIS etc. – security interests will trigger the exception to hearings being open
    CITT, Competition – commercial considerations, sensitive info will be grounds
       for introducing confidentiality
 Form of confidentiality to spectrum:
    Closed hearing, no transcript
    Doors open but no notice. Or just not televised


                                             38
   Justice must be seen to be done.
   Refugee case study
     An attempt to strike a balance between questions that will presumptively be heard
        in camera vs in open court.
     Lots of hearings on immigration matters that are not refugee things. Now, all but
        refugee hearings are presumptively open.
     Refugee determinations are presumptively held in camera (though applicant can
        ask for them to be open, but narrowly granted.) Why would they want it open?
         Media attention – possibly good, possibly subversive or dangerous to others
   Professional Discipline context
     Used to be the case that these were all in camera (else the penalty would come
        before the verdict in terms of reputational slur)
     Regulated Health Professions Act has been changed to make the presumption go
        the other way: mostly open, but can be closed if interests of say, the victim are
        compelling enough to close them.
   Hearings can be closed if it protects witnesses who might not otherwise testify. If
    justice is more likely to be done by hearing a wide array of interests than in having
    the hearing open to the public, then the hearing will be closed. (i.e. competitors
    testifying at merger hearings).
   Can be a matter of striking a fine balance: closing the doors for one witness, opening
    for the rest etc.
   Tough application. Easier to argue that something should not be sealed than that it
    should be. Public access is a good and shouldn’t be interfered with.


The Right to Counsel

Do you have the right to have someone there looking out for your interests, ensuring all
PF is being given to you?

Pros: Lawyers have a valuable role in admin hearings, especially when there are complex
hearings. The kinds of issues at play are set out in statutes. Lay person may have
difficulty navigating their way through the provisions and putting the right kinds of
evidence to the tribunal to let them make an informed decision.

Cons: adds to cost of the whole enterprise, introduces a level of adversarialness that
might be destructive, results in different protections being available to different parties
before a tribunal depending on who can afford it.

SPPA s. 10 does provide a general right to counsel, but no articulation of when that right
arises. (Eg., Are witnesses are entitled to counsel?)

Bottomline: there is no universal right to counsel, it’ll depend on the circumstances and
even if you have a right to counsel, the content of that right (ie the participatory rights of
that counsel) will vary with the circumstances.



                                              39
Men’s Clothing Manufacturers Assocation (Div Ct, 1989)
Facts: Arbitrator listened to a dispute between a union and an employer (member of an
industry association). Collective agreement between union and employers providing that
employee grievances would be addressed by this board / arbitrator. Member firm wanted
counsel. Were they permitted in arbitration? (If not mandated, should use discretion to).
Arbitrator really didn’t want to. Why? The process was 50 years old, worked really
well, if it ain’t broke don’t fix it! Arbitrator’s decision goes like this:

   Look at statute and common law. Nothing in the statute (collective agreement)
    suggesting a right to counsel. At common law: there is clearly no universal right to
    counsel. But it is desirable if the circumstances can accommodate it. That
    desirability has to be weighed against the effective, efficient functioning of a
    particular tribunal or process.
   In this case, with regard to SPPA (which doesn’t apply to labour relations matters) the
    lack of application speaks volumes. The SPPA was supposed to codify common law,
    and they said these procedural rights don’t apply to labour, then at common law, there
    is no right to counsel here.
   With reference to this particular forum, recognizes the efficiency of the particular
    process: works well, work it out amongst the parties informally – lawyers would
    screw it up. There might be kinds of issues that come before them that would benefit
    from the involvement of lawyers (pure questions of law). Could use submissions on
    scope of authority, but otherwise, the lay representatives were doing a great job.

Result: Judicial review to Rejects the criticisms against having a right to counsel in this
context. Arbitrator’s decision limits the pool of people who can be the “lay
representative” – arbitrator didn’t have that discretion. There is no absolute right to
counsel. But, have to worried about the demands of PF.

Do you either look at all the circumstances and decide whether you do or don’t get
counsel; or do you do that and then use discretion? Or is it purely discretionary? In this
case, the board had before it uncontroverted evidence that the issues were really complex
and there was real jeopardy to the company. Also, the company’s rep testified that the
issues here were beyond his competence.

So, in all the circumstances, there was a right to counsel. Even though it was not
provided in the instrument.

Comment: general discussion on the competing demands for and against having a right to
counsel and what the content of the right should be. Analysis:
        Even if there is no right in the statute, the tribunal will have to consider firstly,
           the nature of the issue? Is it complex beyond a lay person’s grasp? Secondly,
           what are the consequences? Fine vs bankruptcy? Thirdly, what is the ability
           of the particular parties before them to make out the case?




                                             40
A) Right to counsel comes up in investigative forums

Irvine (SCC, early 80s)
Facts: Deals with right of parties (and their counsel) to cross-examine witnesses who
were being examined in the context of an inquiry (here, re: competition). Here, could
counsel (without clients, due to commercial sensitivity) to the investigated person sit in
on the examination of witnesses being called by Director of Competition? (Involved
illegal activities)
Result: They did not have that right.
Comment: Notion of dividing counsel and clients can be tricky when asking for counsel.
Comes up in commercial contexts: there are certain things that your client as a competitor
cannot hear information from their competitors. But there are counsel-only rights to read
submissions or be somewhere. Weird for getting instructions as you can’t share very
widely with counsel. Avoid this if at all possible; know the parameters well if necessary.

Re: Parrish
Facts: Investigation after ships collided. Captain of one ship was summoned to
investigative team to give evidence about what happened. He turned up with two
lawyers. The investigator resisted counsel being present, tried to get him to send lawyers
away, so investigator went to federal court to compel him to testify without counsel.
Result: Notwithstanding what investigator says, the Irvine decision is not determinative.
There, the SCC said only that there was no right to counsel to question witnesses
involved in an inquiry. That’s all – it didn’t go so far as to say a party has no right to
counsel in an investigation.

The decision on right to counsel will depend on the enabling legislation, the
circumstances and the particular proceedings at the tribunal.
 Was the summoned person under threat of penalty? (Here he’s been dragged here in
    close proximity to the actual collision. (Personal, emotional, slur on professional
    qualification) – mitigates towards
 Was absolute privacy assured?
 Was the report to be made public? (For instance, the Restrictive Trade Practices
    tribunal does all their investigation in camera. Transcripts are never published. That
    contrasts with this proceeding, because this result will be made public.)
 Was the individual to be deprived of his rights or livelihood?
 Would there be some other irreparable harm?

Not an exhaustive list, just some factors to consider. There is still lip service to tribunal’s
discretion to control their procedure. (That might control content of the right more than
its presence: i.e. right to counsel means one lawyer, not full participation etc.)

Found that the threat to counsel was so serious he required counsel. That outweighed
competing interests of the investigation (efficiency, expediency etc).




                                              41
B) Denial of the Right to Counsel

Delgani (SCC, 1990)
Facts: Applied at port of entry for refugee status. Sent for second interview with
immigration officer, whose notes got sent to adjudicator at his hearing. D complained he
was denied right to counsel at that second interview, which was important because the
notes impacted on the decision.
Result: No right to counsel because it duplicated the right to counsel at the actual hearing.
The first was just an information gathering stage, which information could be challenged
at the hearing.
Comment: Significant interest, but the broad scheme of the legislation overruled it.


C) Penal Context

Parrant (UK, 1990)
Facts: Disciplinary proceeding in prison (for mutiny). Tribunal had failed to consider
whether they should exercise their discretion to grant counsel (despite complexity and
high penalties).
Result: It will be a question of discretion (not in or out). There are factors informing that
discretion:
     Seriousness of charge and potential penalty
     Whether prisoner understands the charge
     Capacity of prisoner to present his own defense (their education, language
        barriers)
     Will there be procedural hurdles a prisoner would have trouble with (i.e.
        witnesses, other stories being heard, rights of cross-examination or pre-interview)
     What’s the demand for expediency (safety of others?)
     Decision maker should be attuned to fairness as between prisoners; and fairness as
        between prisoners and prison officials

Always bear in mind whether the individual is being given fair opportunity to know the
case against them and to respond to it.

Howard v. Stoney Mountain Institution
Facts: Charges against a prisoner under a disciplinary statute. In defending himself, did
the prisoner have an undeniable right to counsel or in the alternative, should the decision
maker exercise their discretion to grant that right? Prisoner serving short sentence. NY
altercation, plead guilty to some not all charges. Asked for counsel, denied. DM said
Charter s. 7 did not give any rights on top of common law so right to counsel, in
discretion, denied. Brought an application to quash penalty ordered by the DM
(remission time he had accumulated were denied, so he would have to serve the full
sentence, but he’d already had to serve them by the time JR came around).

Result: Heard even though it was moot to see if Charter s. 7 would give you a right to
counsel in this circumstances.


                                             42
There is no right to counsel at common law, at most there is a discretion to do so. In this
case, all the circumstances may demand it. If they don’t demand it, there is still
discretion to grant it. If the circumstances do demand it, there is no discretion to deny it.

The issue at stake being liberty, did s. 7 give the right to counsel? Broad interpretation
because dealing with v. important interest. But, s. 7 did not trigger a right to counsel in
these circumstances. It doesn’t change CL right to know the case against them and be
able to respond to it, but there are lots of ways to get there without counsel.

Common law: Inquire into the gravity, complexity and capacity of accused (to
understand and respond). If you meet the test then the common law says you do
have the right to counsel. There is no discretion to deny it.

Here, he should have had a right to counsel.

D) Final consideration on the right to counsel
 In some cases, the importance of the charges may clearly inspire a right to counsel
   and some won’t. Statutes try to distinguish: Police Act tried to distinguish between
   disciplinary charges that would and would not give rise to a right to counsel. Really
   tough to distinguish: any kind of disciplinary action would affect a cop’s career. All
   should give rise to a right to counsel. (Joplin v. Chief Constable of the City of
   Vancouver (BC Court of App) – parliament could not have meant to undermine right
   to counsel in circumstances such as these. Note that parliament IS competent to do
   that if they do so clearly.)
 Never have the right to a particular counsel (problem with delay). Right must be
   exercised reasonably.
 Is there a right to funded counsel? In the criminal context, yes (if severe charges). IN
   the non-criminal context, say custody (New Brunswick vs. G.J. – if there is no right
   under the Charter to counsel, then you have to pay yourself, or have your child taken!
   That case addresses whether a general right to funded counsel is mandated by
   Charter.)
       New Brunswick vs. G.J
       Facts: Mother was trying to resist renewal of custody order in favour of state.
       Denied legal aid certificate. (Above – did this create a right of procedural
       fairness)
       Result: Should have a right to counsel; if not funded, her s. 7 Charter rights were
       breached. Why? Hearing was sufficiently complex and serious. There was no
       evidence that the mother could adequately handle the issues arising in the case
       (capacity problem). Raised the security interest of both mother and child.
       Tried not to say more than they had to about the state funding of counsel, took
       pains to put hallmarks on this case – renewal of custody order hearing suggested
       it was less likely she would ever get her kids back; poor people are often targeted
       in this forum, must protect their liberty and security. Signal to legal aid office not
       to exclude funding for custody orders.
       S. 1 analysis: tough to trump a s.7 right, and it didn’t here.


                                             43
        How should this work on the ground? Custody renewal hearings: if DM sees
        party is not represented, they should ask if the party had applied for legal aid. If
        they were denied, must decide whether that denial amounts to a denial of
        procedural fairness. If so, they must hold (under Charter s. 24) that the
        government must fund counsel. Not sure how exceptional this will be.
        Comment: Always come back to the notion about whether the party has the ability
        to understand and respond properly to the matter before her.
   Funding solutions: Admin tribunals deal differently when a party before them needs
    but cannot afford counsel. Mostly this is done by loaning out tribunal legal staff, at
    least as a general resource. Energy board works on the principle that generally
    intervenors get their costs paid (Energy Probe etc.)




                                            44
Disclosure

Stinchcombe disclosure in criminal (all Crown, none from defence) – in criminal context,
accused must know the case against them and marshall their own defence (by knowing
bad-crown-facts).

In admin, you’re talking more about regulation of commercial activity etc. The admin
burden of having to disclose everything that a tribunal may have before it may be so
overwhelming it doesn’t seem justified.

General principles:
1. Parties have a right to attend a hearing and hear all the evidence taken into account by
the decision maker.
2. Tribunals aren’t allowed to hear evidence in the absence of a party. (Kane)
3. Participants are entitled to sufficient information to know the case they have to meet
(Singh – Wilson mad that S didn’t know why he was to be deported).

Kane (SCC, 1980)
Facts: Suspension of UBC prof by UBC President. Allegations from prez that prof had
improperly used computer facilities. Appeal to Board of Governors, of which prez was a
permanent member. Bd had a hearing to make his case and hear prez’s side. After
hearing, bd + prez retire to dinner where they discussed the case. Conflicting evidence
on what prez said, but suggestion that the prez said something on the case. When Kane
finds out, he seeks JR of decision that confirmed his suspension.
Result: Appeal to SCC which ultimately allows his appeal. Dickson says that at the very
least, prof Kane had a right to know any facts that were discussed at the dinner and
knowing those facts, being given an opportunity to respond to them. What if prez
brought up other beefs he had with Kane? So unfair. Fundamental error: mere danger of
this is so great as to undermine the decision.
Comment: ex of notion that you can’t have evidence lead before a decision maker where
one party isn’t there to know it and therefore be able to rebut it.

A) Official Notice
An opportunity for an individual to know other things that are taken into account by DM
beyond what is actually raised at the hearing. (Like judicial notice). A lot of agencies
involved in admin decisions are big functioning institutions that have generated a body of
writing that may very well inform a particular decision but may not be raised in any
particular hearing. It’s like disclosure from the tribunal.

B) Legislative sources of disclosure
 Freedom of Information Act: as a practical matter, absolutely critical to judical
   review of governmental decisions. Huge resources devoted to answering these
   requests. Exceptions on which the gov’t can rely to keep info private are national
   security, and certain commercial information.
 Canada Evidence Act: Crown privileges against disclosure: s. 37 – Minister can claim
   privilege for a) general public interest and b) protection of individual source (also c)


                                            45
   national security and d) contractual privacy). This can be challenged by in camera
   judicial review. The CEA also permits cabinet confidences (to allow free
   communication there). There is debate whether the broad ‘cabinet confidences’
   category is unfair to the point of engaging s. 7. It certainly isn’t transparent. This is
   unclear, and it didn’t come up in Babcock, the last case to address this issue.

      There are many other categories of privilege. When looking at rules on disclosure
       in the administrative setting, remember that privilege is the only exclusionary
       rule. This is an issue when trying to access agency-generated information that
       may not be strictly available to the public, including a) info about individual; b)
       source of that information; c) info about a corporation; d) agency information.

       Example: Worker’s Compensation Scheme. You might want to get info to a)
       answer charges, b) correct it, c) check what big brother knows, d) ensure better
       decisions. Cons of such information seeking include a) inefficiency, b) protecting
       people from information against them (esp. re: mental health). The chief
       argument against releasing worker’s comp medical reports is the chill effect on
       doctors’ forthrightness. But, since the ‘70s, a summary report has been issued as
       a matter of routine.

1. DISCLOSURE OF INFORMATION ABOUT SELF

Natalie, 1981
Facts: Worker’s Compensation case. Was procedural fairness breached by a failure to
share the entire file? N was appeal low compensation. On review he was given only a
summary of the file and the same low compensation.
Result: The Worker’s Compensation Board ruled that the rules of natural justice required
disclosure. Summary included serious allegations and needed a full report to answer.
This was far more important than a theoretical chill effect.
Comment: This is now codified standard practice wherever there is a disputable issue.

Abel
Facts: (See above – mental health patient /detainee)
Result: The court ruled that the board indeed had jurisdiction to disclose information
about the patient and remanded the issue to them to decide.


Ecclestone (Mental Health Review Board)
Facts: High participation rights were granted but low disclosure. The Board ruled that
counsel could review the file, but it wasn’t to be shown to his client.
Result: Judicial review failed. The board had to balance the right to disclosure with
confidentiality requirements.

Ecclestone also challenged the in camera psychological testimony. He sought the right to
their notes and the right to be present during testimony. On judicial review, he was not
permitted notes, but he was allowed to be present.



                                             46
The Dissent held that this was more investigative than adversarial so this PF was not
necessary. The statutory scheme had the same people investigating and sitting on the
board.

2. DISCLOSURE OF INFORMATION ABOUT SOURCE

Disclosure of sources will always depend on the circumstances. Nurse accused of abuse?
Professor accussed of poor academic record?

Galant
Facts: Max security prisoner advised by the Warden that a) they knew he was ‘dealing’
and b) he may be transferred as a result. He was given no details, including the Warden’s
source. Any more information, the Warden claimed, would disclose a source he was
trying to protect.
Result: Judicial review quashed the transfer based on insufficient notice of the charges.
Procedural fairness required the right to heard, but flexible to jail setting. Need flexibility
because of the high risk to informants.

The warden’s evidence was accepted so the transfer was later permitted. Did this violate
s. 7? Ct of Appeal: liberty interet is engaged. Was it done consistent with fundamental
justice? Gives a discussion of how procedural fairness relates to natural justice. The
differenc is that there are no clear, non-contingent rules on procedural justice, the content
shifts a lot. Natural justice is flexible only in the sense of producing different content on
different fact, not in changing or abridging s. 7 principles.

Different reasons from Marceau J: all the facts can change is the content of PF, not the
rules themselves (like, the right to know the case against you.) The rules exist here as
with fundamental justice, it’s only the content that changes. The Common Law has
created a huge set of law on how this works, most rules not engaging either liberty or
security. The legislature can abridge any of these rules. But, if the legislature alters a
procedural safeguard that affects s. 7 interests, they must justify it by s.1.

Marceau contrasts Gallant with de Mari – in de Mari, the prisoner incident was one off,
here it is a pattern. The de Mari informant was a cop, not a vulnerable co-prisoner.
Finally, Gallant got far more information than de Mari. Also, Marceau cautions against
lumping all Penal cases together – there can be any number of issues involved – focus
instead on the interest at stake to calibrate PF.

Dissent (Desjardins) reaffirms it was a loss of liberty and so s. 7 was engaged. With
informants, cts must err cautiously, BUT the accused must get enough information to
defend themselves with. Desjardins was troubled by the total acceptance of the Warden’s
affidavit. There was noting in the record that this judgment had any reasonable
justification. The ct needs that assurance, the “why” because of liberty.




                                              47
Comment: Read for s. 1 – proceduralrights and the important of Charther. Here the Ct of
App agreed the application of PF will be flexible given (Howard) the gravity and nature
of the case. But, the rules of fundamental justice are not flexible without a s. 1
justification by Parliament.

Gough
Facts: Gough was on parole for five years. Complaints were submitted about sex assault
and drug offences, so he was reincarcerated on the original charges with no disclosure of
the new complainants. He sought JR on the decision to revoke parole.
Result:
Trial: pro-Gough – could either parole Gough or review the complaints in camera; the
National Parole Board must disclose the complainants
Appeal: NPB was right that trial court can’t do that per s. 24

Re-trial (Reed) J: Gough was entitled to know the case against him especially as his
liberty was on the line. Gough’s liberty was conditional but he had been out for five
years – high liberty interest. There is also a public interest in restraining arbitrariness at
the NPB, not just in preventing crime. Their evidence was hyperbolic.

Procedural fairness includes sufficient information to defend yourself.
S. 1 analysis: affidavits from NFB way overstated the case. (Any! Disclosure! Means!
Total! Collapse!) The Admin burden was rejected here (as in Singh) The NFB was given
the opportunity to support their decision (in camera). Action permitted in regs (allowing
broad confidentiality). Not saved by s. 1 so ordered a new NFB panel.

Comment: (Dumbest decision ever: The NPB didn’t have to disclose the complainants
because Gough, having committed the crimes, already knew their identity…Apparently,
nothing in evidence on this point.)

3. DISCLOSURE OF INFORMATION ABOUT CORPORATION /
COMMERCIALLY SENSITIVE INFORMATION

   The Anti-Dumping Act: an individual can make a claim for confidentiality upon
    disclosure (same at CITT).
   Must balance interests in transparency and confidentiality
   Most tribunals are happy to protect confidentiality.

4. DISCLOSURE OF INFORMATION ABOUT AGENCY

   Many studies and reports are prepared for decision makers
   Ahrd to get this disclosed; mostly confidential
   Participants believe they inform the decisionmake a lot
   But, Discolsore would interfere with free internal agency debate (but its threat may
    improve the quality of the work).




                                              48
   Toshiba Anti-Dumping Case: two reports were prepared by the authorities (pre- and
    post-hearing), neither disclosed. The Pre-report non-disclosure was judicially
    reviewed in camera and the panel ruled that it contained nothing that wasn’t
    otherwise disclosed. The post-report was treated with the same deference as
    solicitor’s briefs

   Trans-Quebec Pipeline: TQ sought staff reports to which they were not entitled. If a
    party seeking disclosure can show that the report contains facts informing the
    decision maker, then they will be able to see it (subject to the court’s discretion).



Evidence and Cross-examination
Oct 20

   Test: witness credibility, consistency, assumptions – all best in oral.
   Why refused? Time/delay, unequal parties, expense, policy issues (unfruitful to X)
   Re: Toronto Newspaper Guild v. Globe Printing: the Guild wanted to qualify as a
    bargaining agent for the Globe’s employees by demonstrating membership support.
    The Globe thought that many of the ‘members’ no longer worked for them. The
    Board refused to let Globe ask these questions. Globe sought and won certiori, based
    on the “cardinal privilege of cross examination.” JR ct thought basic justice was
    denied.
   SPPA gives right to cross if it is reasonably required for a full and fair disclosure of
    all matters relevant to the proceedings.

Innisville (SCC)
Facts: A municipality applied to annex part of the next municipality. Issue: whether the
board should accept a letter in evidence written by the provincial authority purposrting to
set out their position. It was relevant, but did the objecting municipality have the right to
challenge the official?

Result: The SPPA applies. There is no exemption for government officials. The balance
is heavily in favour of the sanctity of cross examination, rather than the administrative
burden of full cross rights. If individual rights are in issue or there is a FULL ORAL
HEARING, there must be cross-examination unless there is clear statutory language to
the contrary. Such language would create a rebuttable presumption.

They try to distinguish adjudicative facts from legislative facts. The idea is that the latter
are ‘objective’ such that cross will not be useful. Aitken includes opinion evidence in
legislative facts, so argues that cross is useful for examining and undermining expert
assumptions.

Comment: (use this for how to think about cross examination)




                                              49
See also…
County Strathcona No. 20 v. Mclab Enterprises [1971] Alta
Facts: Re-zoning issue where author of report used was not available for cross-
examination. Opposing parties submitted written replies to the contents of the report –
had an opportunity to comment upon or contradict statements but the problem was that
they didn’t get the chance to cross-examine the author.
Result: Report allowed, parties able to submit written replies. While cross-examination
is one way of undermining the opponent, it’s not the only way. In this case, the absence
of the author of the report would simply go to weight, it wouldn’t bar the admission of
the report.

B v. Catholic CAS [1987] ON Div. Ct.
Facts: B placed on sex abuser registry (but never charged). Hearing required to have his
name removed. B testified at hearing. Social worker gave hearsay evidence re: victim.
Result: Given the stigma of being on the registry B should have had chance to cross-
examine. Can only rely on hearsay evidence when there is good reason to believe it.
Board didn’t give reasons.

Saresh
Facts: refugee hearing, like Baker. The Minister of Immigration made a deportation
order based on a finding of fact that Saresh was a threat to national security.
Result: Court applied Baker and concluded he was entitled to more procedural fairness
than what he got (which at the final stage was nothing). Even if he wasn’t entitled to a
full trial, he needed more PF. Such as:
 He should have been informed of the case he had to meet in terms of disclosure.
 The corollary of disclosure is the right to challenge information gained during
    disclosure – the right to present evidence of your own that will contradict it – and this
    includes cross-examination.
 A refugee must be given the chance to challenge the Minister’s information where
    there was an issue as to its validity because Suresh was challenging the information
    the Minister was relying on under section 15 (that he was involved with a terrorist
    organization).
So the implication is that he should have had the opportunity to present information that
he wasn’t so involved.




                                             50
Admissibility
 Two aspects:

       Refusal to admit evidence
         LaRoque: an abirbration against a university for wrongful dismissal refused to
           let the university admit evidence that the reviewing court found was relevant
           and material and therefore breached the duty of fairness to the university.
         Key: does the individual; have an opportunity to know the case against them
           and respond in a way consonant with the duty of fairness in these
           circumstances?

       Improperly admitted evidence
         More often, the challenge is about evidence that is admitted that shouldn’t
           have been. Cases are usually on evidenct that would not be admitted in court.
           The decision on fairness is contextual on both the individual and public
           interest.
         Hearsay: usually OK, and often admitted. Only a problem if decision is
           based mostly on uncorroborated hearsay (Khan: allegations of sex abuse of a
           child allowed on testimony of mother; Bond v. New Brunswick: sex abuse of
           an adult, serious allegation on hearsay alone – not fair.) The method is to
           admit it, but give it low weight.
         Clark: real estate broker accused of fraud sought a license re-issue when he
           was cleared. Wanted his criminal transcript admitted at the administrative
           hearing. Ct of App: OK to admit, but give it low weight.
         OEX Electromagnetic v. BC Securities: BC wanted American court transcripts
           admitted. OK, despite unavailable witnesses, because of caution (low weight
           + corroboration.)

Duty to Give Reasons
 This is not a common law right
 It is in the SPPA, if requested

Baker (1999, SCC)
Facts: see above
Result: huge on content of procedural fairness. Includes duty to give reasons in certain
circumstances, based on the importance of the decision and the right of appeal (because
the reviewer needs them).

   DUTY Mixed case law on the right to reasons. General factors suggesting a duty to
    give reasons include:
     Public interest
     Right of appeal
     Impact on the individual




                                           51
   CONTENT Once you know whether reasons are required, you have to know how
    exhaustive they have to be. What satisfies this duty? Factors involved in evaluating
    the substance of reasons include:
     Purpose of the reasons (i.e. if for appeal, then must address the issue for appeal)
     Administrative burden / delay
   The reasons must come from the decision maker themselves (Saresh)

Via Rail (Fed Ct App)
Facts: national transportation agency decision o appeal at the Fed Ct App. There were
disabled athletes traveling, with their assistances traveling for free in exchange for
helping them board and alight. The assistants couldn’t, and they got zero staff help.
Hearing at the NTA held that Via practices were undue obstacles to passenger mobility
and so required Via to change the requirement that attendants assist with boarding.

Result: Fed Ct of Ap was asked to evaluate whether the NTA’s reasons were sufficient.
So first they give out the reasons for reasons: to foster better decision making, assurance
that representations have been considered, easier to effectuate appeal, guidance to others
in the industry (p 476). The duty to give reasons is only fulfilled if the reasons are
sufficient, which means compliance includes: setting out the facts, setting out the findings
underlying the decision, and addressing each point in issue.

Did the NTAs reasons give Via helpwith revision of th emeasure? Did Via know the
problem and how to fix it? What did “obstacle” mean? “undue”? By what standards
was this analyzed? These were all open questions.

Comment: If you fail to give reasons where required, it can give rise to the discretion to
set the decision aside. This is the same as the breach of any other aspect of procedural
fairness, on a writ for certiori, prohibition or mandamus.




                                            52
Bias
 In context of familiarity and expertise
 Duty of procedural fairness has two elements:
    The right to be heard (which includes all the incidental rights discussed above –
       making out the case, knowing and responding to the case against you, disclosure,
       notice, cross etc)
    The right to an unbiased decision maker
 In one sense, everyone has certain values and biases. This ‘colloquial’ bias isn’t what
   we’re talking about, and it isn’t necessarily wrong.
 Benefits of an unbiased decision maker? Impartial decision;Appearance of justice
 Benefits of bias: Familiarity; Expedition; Predictability; Consistency; Expertise
 The subject of bias has a huge life in admin because the whole plan exploits the use
   of expertise
 So, only impermissible bias will overturn a decision. This has evolved three related
   meanings IMPARTIALITY, INDEPENDENCE & PREJUDGEMENT (or prior
   involvement in the case).
 Each is based on the idea that no man should decide something that will affect
   their interests.
 This began with the idea of direct benefit. The objective fact of such a potential
   benefit is more relevant than the actual decision being biased.
 Bias case law doesn’t usually impugn a decision maker. It’s more focused on seeing
   justice done.
 The tolerable level of bias is contextual to the kind of decision. It is more apprpriate
   to policy articulation than adjudication.
 Bias arguments based on familiarity don’t generally fly in admin.
 Bias can be PECUNIARY or NON-PECUNIARY

Oct 22
Pecuniary Bias
 Since 1852 (Dimes, accusing the Lord Chancellor) the common law has held that any
   money interest will disqualify a decision maker. Again, this is due to perception
   more than reality.
 Convent of the Sacred Heart – a decisionmaker in a zoning matter had a home in the
   region and was thus disqualified.
 In Canada, a de minimus exception came in later. Remote interests won’t disqualify
   (efficiency – we’re too interconnected, i.e. mutual funds).
 Energy Probe: what kind of interest will disqualify? Is direction the question? What
   is sufficiently direct?




                                           53
Energy Probe
Facts: Energy Board to renew nuclear power plant licence. Board member Olson was
president of a company that supplied cables to nuclear power plants and member of pro-
nuclear advocacy groups. The Board approved the license. This anti-nuclear advocacy
group sought JR because Olson had a material interest in the outcome.

Result: Fed Ct asked two questions:
1. Whether procedural fairness demanded in Nicholson applied to the energy board such
that it required a bias free decision maker.
 Of course PF attaches, and of COURSE it includes an unbiased decision maker.

2. Whether Olson had any pecuniary bias (or it so appeared)
 There was no allegation of bias other than pecuniary. Only that investigated.
 At common law, any pecuniary interest disqualifies. But here, there was no direct
   pecuniary interst. There was no contract between Olson and the plant. The most you
   could say was that Olson could entertain a reasonable expectation of pecuniary gain
   (subject to competition etc.) if the license was approved. Not enough, therefore, no
   bias found at trial.

The Fed Ct App approves the trial court on the ‘too remote’ grounds.
BUT, Dissent – Marceau – challenges the whole line of direct / indirect interest inquiry.
The Tribunal is resovling disputes and therefore must be impartial. Pecuniary interst is
an easy case of bias. There are all sorts of other (non-pecuniary) interests that will
disqualify (kin, etc.) That line is consistent with the principle of seeing justice done. So
if you’re going to say ‘direct’, say it broadly, from 1st principles – interest not too remote.
Onlookers must feel that justice was done. But on the facts here, Marceau agreed that it
was unlikely that there was bias.

As an aside he noted that pecuniary bias isn’t to be contrasted with a reasonable
apprehension of bias, but with non-pecuniary bias. HOW biased is tolerable is a context
question. Less than in court, but still an issue. Why? Admin=expertise=familiarity /
predetermined mind.

Comment: Since Energy Probe, the SCC has confirmed that the type of decision
(judicial v. administrative) won’t affect whether you have a right to an unbiased decision
maker, rather it will just affect how unbiased. Sometimes, the statute will explicitly
permit more bias.

Burnbrae Farms v. Canadian Egg Marketing Agency (Fed Ct, 1976)
Facts: An egg farmer looking for an expanded quota faced an adverse decision from a
tribunal that included some of his extra-provincial competitors.
Result: Because the statute called for 7 of the 12 members to be extraprovincial industry
representatives, no bias was found outside the statutory shceme.




                                              54
Moskalyk-Walter v. Ontario (College of Pharmacy) (On Div Ct, 1975)
Facts: A pharmacist from Fort Erie was disciplined by a panel that included a man who
owned several competing shops in the tiny town.
Result: Bias was found – too direct an interest.

Pearlman v. Manitoba Law Socieity Discipline Committee (SCC, 1991)
Facts: Pearlman complained about structural bias. Any decision to disbar a lawyer gave
more business to the rest of them.
Result: Iacobucci – potential gain is too remote, and spread among too big a group, to
constitute bias.

CP v. Matsqui (SCC, 1995)
Facts: a band tax tribunal was to hear an appeal against an initial tax assessment of CP
land in reserve territory. CP challenged the inclusion of an Indian on the tribunal, as he
stood to benefit from the increased tax base.
Result: Too diffuse a result – de minimus. Counter balanced by the public interest in
seeing self-government.

General Test for Bias
 Per Committee for Justice and Liberty v. National Energy Board (SCC, 1978): de
   Grandpre held that the reasonable apprehension of bias must be held by a reasonable
   person, applying themselves to the question, will all the information to hand.
 What would an informed person, viewing the matter realistically and practically
   and having thought the matter through, conclude?
 Denning MR: it is not whether this decision maker likely acted on their interst, but the
   impression of reasonable onlookers that there is a real likelihood that she do so.
   Must be concerned with the public perception, but balance public confidence with
   administrative efficiency.
 How informed is the onlooker to be?
    Decisions range from fully informed to allowing them to ignore ‘hidden facts’
       (unavailable to the man on the street)
    Gough (House of Lords) held that the reviewing court must collect all the
       evidence of the circumstances and step into the shoes of the reasonable person to
       decide.

Non-Pecuniary Bias Interests
 Kinship, business relationship, animosity, predetermined mind – these are examples
   of having an emotional interest in the outcome. There are degrees of each.
 There are four key characteristics, or types, of non-pecuniary bias interests:
   1. ANTAGONISM BETWEEN DM AND PARTY / COUNSEL
        Demonstrable antagonism likely to involve a concomitant denial of procedural
          fairness (i.e. can’t finish cross, can’t be fully heard.
        Yusef: panel members aggressively questioned the refugee claimant. Asking
          questions isn’t improper, but bulling and sexist remarks are. There was
          sufficient antagonism to raise a reasonable apprehension of bias in the context
          of an important question with high impact.


                                            55
      Role of counsel to the tribunal (Karen): they may end up ‘helping’ one side
       that doesn’t have representation. Any of their interference in a case like that
       counts not exactly as enmity but an unfairness that is analyzed in this
       category.

2. ASSOCIATION BETWEEN DM AND PARTY / COUNSEL
    We’re human. We help our friends. It’s best that no one is related to the
      decision maker.
    Indirect: DM as counsel in a former life acted for a party
       Marques v. Dylex: employer at labour relations board resisting union
         certification. Board member had been counsel to one of the unions in the
         bigger union seeking certification. Divisional ct rejected associational
         bias challenged. It was the member’s firm, more than a year ago, that had
         acted for the union. No problem.
    Note that the standard on association is lower in admin because we seek
      expertise, inevitably a smaller community to draw on.
    See also Ontario Hydro where OH tried to disqualify the tribunal’s counsel
      because she had represented OH on an unrelated matter years before

3. PRIOR INVOLVEMENT BY DM IN THE CASE
    See Committee for Justice and Liberty (prior involvement and association)
       National Energy Board got an application to build a pipeline from an
          Arctic consortium. One member, Crow, had been involved in a
          stakeholder consensus group that had dealt with building the feasibility
          study. Crow was definitely involved on whether the pipeline would be
          feasible. The SCC agreed that Crow was biased.
       They said the vice of reasonable apprehension of bias does not lie in
          finding an equivalent decision made ahead of time; the vice is in his
          working out details and preparing the submission to the Board. (Co-
          opted! Cares!)
    Other types that fall in this category include institutional structures that have
      the same person investigating and then on a decisionmaking panel. (See
      Vespa, Innisville rerun: the Bd rushed to a decision on annexing the
      municipality after their earlier statements about the absurdity of Vespa’s
      position) SCC: the intention was clearly expedition, but the effect was bias.
    The investigator / decision maker dynamic
       Law Society v. French: a sub-group of Benchers make up the discipline
          committee, which holds hearings there with reprimand power and the
          possibility o freferring the case to Convocation for disbarment. The
          Individual can appeal the reprimand / suspension to Convocation. 2 of the
          3 panel members sat in on appeal. SCC: Law Society won, as the
          investigation and decision was just one procedure, not a prior decision.
       Emerson v. Law Society: inadequate reasons in discipline committee
          recommendation for suspension. Ontario Div Ct held that the discipline
          committee and the Convocation process that followed was all one process,
          so it didn’t matter. The Law Society Act has since been changed,


                                        56
            removing adjudication from Convocation. There is no participation
            allowed at later stages ever.
         Administrative concern– removed expertise from later stage; chill effect
            on help from tribunal in terms of advice to applicants
     Statutory authorization for prior involvement?
         Brosseau v. Alberta Securities Commission: chair had staff review files
            and talk to RCMP. He issued a notice of hearing after receiving that
            investigative report. Result: at COMMON LAW, you can’t be the
            investigator and the adjudicator. That can be altered by statute.
            Overlapping statutory functions do not constitute bias.
         Reasonable apprehension of bias must point to some act beyond the
            statutory requirements to succeed. This is based on parliamentary
            deference, and the idea that some agencies will need that kind of
            flexibility.
             Often, that’s a matter of specialization where you must allow for ppl
                meeting repeatedly
             The Securities Commission had a dual role: protect the public / police
                the industry. Look at the scheme as a whole.
     Note that Charter 11d (presumption of innocence) rights do not cover
        securities. Need true penal consequences, not a fine.
   Think: is the individual biased through prior involvement or pecuniary bias or is
    the structure of the decision supporting a reasonable apprehension of bias?

    EA Manning v. Ontario Securities Commission
    Facts: OSC gave a policy statement expressing concern about a certain activity
    and identifying xyz dealers who were involved in it. The dealers challengd the
    policy statement as ultra vires (see Ainsley decision) Separately, the OSC then
    issued notices of heaing against the named dealers. Dealers sought certiori on the
    notice of hearing on the grounds that the policy statement had already decided the
    point. Also: OSC activities in defending Ainsley indicated bias in pursuit of
    dealers. Finally, the chair had made public comments against the practice.
    Result: Div Ct: OSC had concluded things in the policy statement (confirmed in
    Ainsley). Even if OSC put new people on the case, it wouldn’t cure the
    reasonable apprehension of bias. Here there was activity outside the scope of
    their statutory duty. Conclusion: everyone at the OSC when the policy statement
    was issued is disqualified. Correllary: newcomers are NOT biased! If this is
    impossible, then hold the hearing anyway based on the necessity.

    Appeal: The policy statement was ultra vires; but the new commissioners aren’t
    biased (presumption that they will act fairly). Defence of Ainsley is fine: common
    law permits you that right! The chair’s public statements were within his
    statutory duty. It is in the public interest to know how the statute will be
    interpreted. Not decided on necessity, just that the new commissioners are not
    biased. Don’t need necessity because in Ontario, the Public Officers Act allows
    that if everyone is biased, you can appoint ad hoc adjudicators.



                                        57
     Comment: Note that this bias problem only ariseswhen individuals or institutions
     performing overlapping functions authorized by statute (OK per Brosseau,
     Latimer) go beyond their authoritzation in a way that raises a reasonable
     apprehension of bias (Manning, Ainsley) Remedy must still protect the public. It
     is unclear whether activity exceeding statutory authoritzation automatically results
     in a bias finding or whether that activity then gets dropped into the general test for
     bias.

4.INSTITUTIONAL BIAS
  Did not exist in Brosseau or Manning, very recent
  Can find bias in either the statutory scheme, or the agency practice.
  Statutory Scheme: If the scheme is clear – even if clearly calling for bias – it can
   only be challenged per the constitution
 Agency Practice: challenge biased practices on the common law doctrine of
   fairness.

     Number Co v. Regie de Quebec
     Facts: The same tribunal lawyers were involved in six different parts of the
     process.
     Result: SCC confirmed the operation al structure did give rise to a reasonable
     apprehension of bias. The statute could hae been interpreted to keep the roles
     separate; it was just the practices that were impugned.
     Comment: It depends on all the circumstances – it is less strict in administrative
     law, but we must guard against institutional bias.

     McBain
     Facts: A human rights complaint. The scheme held there was discretion to
     appoint an investigator; Commission could apodt their report if they believed it
     was substantiated and so put it to a hearing in front of a panel drawn from a
     standing roster.
     Result: Fed Ct App held that the legislation created a reasonable apprehension
     institutional bias. The Commission and the Tribunal make the same decision
     (whether the complaint is substantiated) and the connection between the
     prosection (the Commission) and the adjudicator (the tribunal) is too close.
     Comment: The Case is mostly known for reviving Bill of Rights s. 2(e)

        Function overlap is generally more tolerable in policy decisions than
         adjudicative ones.


5. ATTITUDINAL BIAS TOWARDS ANY GIVEN OUTCOME
 Can be either mean or having a predetermined mind (linked closely to prior
   involvement)
 The question is whether the decision makers mind is so closed that they are not
   amendable to persuasion.
 Tension: informed and aware people vs. people with a demonstrated attitude


                                          58
   Test: whether a reasonable person looking at all the circumstances and reasonably
    informed would believe the decisionmaker could not be persuaded.

Re Pain
Facts: professor was denied tenure. Regulations made him eligible after a certain
number of years, at which point a tenure committee was struck to recommend tenure
or not. One person, on peer review, refused to recommend him. That person was
then put on the tenure committee. Pain was denied tenure 5-0. Pain challenges the
decision because of that guy. Internal university appeals all fail.
Result: Div. Ct found that the unfairness resulting from having that individual on the
committee was too great; decision quashed for attitudinal bias.
Appeal Ct: reversed, peer review committee isn’t a tribunal. The scheme doesn’t
anticipate a de novo review; the reason you’re there is to be reviewed by ppl with
prior knowledge. The only way it could be unfair is if the procedures gave rise to
manifest unfairness. There was no such evidence here.
Comment: There was a heavy interest in distinguishing these committees from
tribunals; deferral to the university was the order of the day. Fairness overtakes
effectiveness if tenure committee is composed of strangers (weird to see deferral on
procedure – all depends).

Great Atlantic
Facts: Prof. Backhouse (Osgoode) was 1 of 120 complainant in an employment sex
discrimination case (Gail). She was an advocate against sex discrimination. She’s on
the list of members at the Human Rights tribunal. She withdraws from the Gail
complaint, and is later appointed to a panel at the HR Tribunal.
Result: Div Ct: calls it prior involvement and sidesteps attitudinal bias altogether.
Comment: Contrast with Large v Stratford: prior political advocacy on a point is
consistent with the ability to adjudicate fairly.

Save Richmond Farmland
Facts: Politician on zoning decision stated “I won’t change my mind”
Result: LaForest held there was a very low bar. He was entitled to a closed mind, as
an elected official, so long as it is not a corrupt mind.
Comment: The majority held that it was not demonstrated that his mind was closed.
Same reasoning in Old St. Boniface Residents Association.

Newfoundland Telephone
Result: in policy / legislative decision making, there is a low standard of openness.
Legislative elected officials clearly express opinions, got elected for them, and then
implement those decisions. This is not bias. Ignore it. Slips below the bar. But this
is still a concern
Comment: articulates the ‘closed mind’ standard. There has since been criticism of
Cory’s decision here – it looks like decision makers just have to refrain from saying
they’re biased.




                                        59
Tribunal Independence
 Institutional independence is a structural question: does the decision maker have full
   adjudicative freedom? Is there any reason DM was drawn to a certain result? Was
   their tenure, or pay, tied to a particular outcome?
    This often translates into suspicion about dismissing any adjudicator without
       cause; decision makers need a measure of security of tenure
 Would a reasonable person be concerned that the DM would try to please someone?
 McBain: per hour pay interferes impermissibly with independence

Sethi v. Canada (Minister of Immigration)
Facts: a refugee applicant was denied. On appeal, he claimed that there was a
reasonable apprehension of bias at the Board; that they were not independent because of
pending legislation that meant DMs may or may not get reappointed (and thus they would
try to please the government).
Result: Trial: the outstanding legislation did not raise a reasonable apprehension of bias.
Appeal: No, we trust the decision makers – besides, wouldn’t the government be most
pleased with a fair decision, even if it went against them? Plus, we like public debate in
the legislative process.
Comment: (Holy holier-than-thou!)

CP v. Matsqui (1995, SCC)
Facts: the Indian Act grants powers to create tax structure within reserves. The Matsqui
did, complete with an appeal board. Board members could be Natives, with no tenure or
pay. CP argues a) that board members have a pecuniary interest in the outcome (fails –
too diffuse) and b) that board members are not independent (succeeds – there is no
institutional independence).
Result: Why? DMs have no security doing what they do, and thus it looks like they’ll
try to make decisions that please the band, biasing decisions against all petitioners.
[Sopinka: premature to decide lack of independence without factual example of practice.
The bylaw is insufficient given the policy context of assisting self-government.]
Comment: NB – now we do look at practice, like in the Regie case.

Bell Canada (SCC, 2003)
Facts: Bell’s been challenging a human rights complaint on pay equity for years, against
really angry women employees (operators). Bell brought a motion ot the human rights
tribunal challenging their ability to hear operator complaints for impartiality and
independence. Two Commission powers offended both (per Bell): the power to issue
guidelines (binding on the Tribunal) regarding to how to adjudicate certain disputes (such
as pay equity); and the power of the Tribunal Chair to extend co-members terms to
conclude the hearing. The tribunal itself rejected the motion. Bell went to Fed Ct.
Result: At trial, judicial review was allowed based on the guidelines problem.
Reasoning: if the commission could guide adjudication so closely, it fettered the decision
makers’ discretion too much. No problem with security of tenure / extensions. The
Appeal court reverses this.

SCC: upholds app ct.


                                            60
       BELL ARG: Guidelines? Bell says they dictate how to decide, thus interfereing
       with independent decisions AND impartiality (as the author of the guidelines is
       arguing the side across from Bell) (Extending Tenure also messes with both
       principles!)
       SCC on Impartiality / Independence: the two are related, and key to an unbiased
       decision maker. They are driven by the same motive (maintaining confidence in
       the integrity of the administration of justice) and tested with the same general bias
       test. BUT Impartiality addresses the state of mind of the decision maker while
       independence is traditionally a concern with the institutional structure (the
       relation between the decision maker and their paymaster)
       SO: SCC says Bell was wrong to say guidelines interfere with independence.
       They look instead at:
       -Type of decision: more adjudicative than policy oriented
       -Context: the mandate of the HRC has a high policy content (“deter
       discriminatory behaviour”) The Legislative intent is to implement the policy
       objective, so you lower the bar.
       -So, the guidelines are not about fettering the discretion of the tribunal. They
       were made pursuant to the statute and had the force of law (yuck, should’ve called
       them regulations – guidelines always mean non-binding). OK to give guidance
       like this.

Comment: addresses both the independence and impartiality aspects of bias. This case is
good for returning to first principles




                                            61
Institutional Decisions
   What happends with overload? When an agency deals with hundreds of thousands of
    decisions each year?
   Very different from court decisions – each application may have multiple decision
    makers / stages
   Pro: broad expertise, efficiency
   Con: anonymity, zero transparency, inconsistency
   Courts reviewing these decisions must take into account the massive institutional
    structure when calibrating procedural fairness at huge volume agencies.


Delegation: The Legal Doctrine

   A delegated power may not be delegated.
   If delagatee makes a decision, someone else can issue it
   How do you find if re-delegation is permitted?
     First, see if the statute permits it
     Second, see if the statute necessarily implies it
     Third, see Fed Interpretation Act s. 24 – “Minister” = “ADM”
     Fourth, is there an implied authority to delegate, reasonable given the object and
        purpose of the legislation?
   There is a tiny scope of decisions that must be done personally by the minister (like, a
    decision to deport a person who may face torture on arrival).

Vine vs. National Dock Board
Facts: NDB delegated power to various local boards who then appointed certain
stevedores (including Vine). Vine didn’t show up and got fired by a committee of the
local board. Was the local board competent to delegate their discipline power to a
committee?
Result: This was a quasi-judicial function. There is no general rule of delegation, just
focus on the importance of power in these facts. This was a bad delegation.

Morgan v. Acadia (p 491)
Facts: Student discipline process delegated by the Dean.
Result: Ok by the court.
Comment: Anything else would be unrealistic.

King v. Chartered Accountants
Result: discipline committee rejected. Quasi-judicial functions can only be expressly
delegated (very categorical).

Just (New Zealand)
Facts: Zoning statue required board to make a decision. Board appointes a committee to
investigate and report. Committee holds hearing and writes report without summarizing
the received evidence. The Board implements the committees decision anyway.



                                             62
Result: Struck down on judicial review. Would have been OK if the committee had set
out the evidence and submissions for the decision makers.
Comment: (He who hears, decides = he who decides, hears).


Consulting with other Agency Member
 Does the duty of fairness preclude Board member consulting with each other after
  hearing the evidence but before rendering a decision?
 Wrinkle: these consultations sometimes happen without public being alerted. How do
  you seek review against “illegitimate compulsion” if you can’t know?
 Tension: policy morass. Easy questions of fact or law; the problem is with policy
  questions in the middle ground.

Consolidated Bathurst (1990, SCC)
Facts: Employers have a duty to share information during collective bargaining.
Tripartite labour panel. [The Labour Board has 94 employees and hears 2400 cases a
year. It has 12 full time chairs, 2 full and part time members – big.] After a hearing,
panel members asked for a full board meeting to discuss a policy issue. The Panel then
rewrites their decision. The Employer asks the labour board to reconsider. The board is
happy with policy meeting good for dialogue and consistency) and maintains it didn’t
interfere with individual autonomy of decision makers, as there was no attendance or
votes taken.
Result: On judicial review, the employer (Consolidated Bathurst) wins at divisional
court, and the Board wins on appeal. At the SCC,

Sopinka’s dissent is as follows:

       The questions are whether the principle “he who hears decides” was violated, and
       whether CB had the right to be heard? Keep these two issues separate.

       To determine a breach of natural justice, must characterize the full board meeting
       here. There was a real possibility it would influence decision making (in fact, this
       was as much as admitted when the board argued they did it to ensure consistent
       decisions!) Is there an appearance of justice under these circumstances?

       To find a violation of either (he who hears decides or right to be heard):
        Characterize the nature of decision: was it policy decision?
           Innisville: it was a denial of procedural fairness for parties to be denied the
              right to speak to what happens at the meeting.
           This has to be a question of fact
           If it had been a question of law, there is no real need to get any rights on
              outside discussions.




                                            63
Gonthier’s Majority decision:

      Concurred on the issues: DM autonomy and the right to respond (concern about
       information forming the basis of a decision being gleaned outside hearings)
    Autonomy:
        Meeting was on policy only, no impact on independence
        Positive aspects of consultation: access to collective expertise (important with
           labour questions), coherent/consistent judgements (which is consistent with
           the fact of a strong privative clause), promotes equal treatment
        Negative aspects of consultation: risk that evidence/ideas will be introduced
           without parties present, decreases individual responsibility of decision maker.
        Not convinced that consulting will affect independence. Was there any moral
           suasion? General test for bias not ment (focus on meeting procedures)
    Right to be heard
        Question of fact vs. law? (See Sopinka’s decision)
        Here the policy issue raised at the meeting were also raised at the hearing
   OK for guidance, not constraining the decision maker. This was a deferral to the
   tribunal on policy grounds.

Comment: There was talk about whether it was a full board meeting or hearing. If it was
the latter, it would be even better (get the parties in).

Tremblay
Facts: Province (Quebec) denied an application from a welfare recipient to cover her
medical expenses. Application was heard by a 2 person panel. A question of law arose:
did bandages fall within the definition of medical equipment? Written submissions were
received, after which the panel favoured Tremblay. But they showed their draft report to
counsel (who was the agency Chair). He disagreed and wrote a memo and requested a
consensus table meeting. There, one of the panelists changed their mind (and argued
Tremblay should not be reimbursed for the bandages after all). The Statues said that in
the case of a divided panel, the Chair got to decide. The chair followed his anti-Tremblay
position as laid out in the earlier memo. Tremblay appealed, arguing this was a violation
of natural justice.
Result: SCC.
        First had to deal with an objection to Tremblay’s counsel seeking evidence
        probing the decision making process. The agency claimed ‘deliberative secrecy’,
        SCC rejects this (as it undermines the right to judicial review challenging unfair
        procedures).

       Secondly, address the violation of natural justice. Consolidated Bathurst is
       distinguished because that was just a general policy meeting. Here, natural justice
       was violated as consensus tables were compulsory, and there were minutes,
       attendance and a vote at them. Way worse (more compulsive) than CB. There
       was also a problem with the overlapping functions of the Chair. Making the
       decision was within his statutory authority. But, his earlier memo (which was



                                           64
       outside his statutory authority) was an unjustified overlap leading to a reasonable
       apprehension of bias.

       Conclusion: this was all about characterizing the question – here, the defintion
       was a matter of law, so the right to respond isn’t really relevant.

Comment: Prof Mullen critiques this decision, for the weird “illegitimate compulson”
(Tremblay) vs “permissible influence” (Consolidated Bathurst). Rules alone wont’
describe this – you need real evidence. This gauges public interest in appearance of
justice, not actual experience. Mullen argues that consistency > autonomy, or rather, that
autonomy should be analysed at the agency level, not the panel level. Heavy executive
hand at the agency level is OK.

Ellis Don
Facts: Did the union abandon its right to hold Ellis Don to a collective bargaining
agareement by leaving their name off the list repeatedly? Labour panel heard this
challenged and drafter reasons. Then there was a full board meeting to discuss the draft.
The panel then changed its mind and upheld the union argument. Ellis Don sought
judicial review because this was a question of fact.
Result: Could Ellis Don compel board members to testify re: decision making
procedure? It was considered a question of fact but there was some policy content. (That
is, it was a matter of weighing deliberative secrecy against procedural fairness. Secrecy
is important to promote independence, but at the price of less transparency and more
obstacles to review the basis of decisions in court.)

Court held that there was a presumption of regularity of process that required that the
court doesn’t inquire too closely into the process. On this basis, a high level of deferral
was given to high volume agencies.

Dissent: the board can’t resist transparent process requirements AND say there is no right
to challenge due to a lack of evidence. Here, there was a change in decision on a
question of fact after a meeting, therefore Ellis Don should have had a right of reply.
There were competing public interest matters: seeing that procedures are both fair and
followed; and ensuring deliberative secrecy.

Re: Pain
Facts: Tenure complaint, see above for facts. P’s complaint to the HR Commission was
not pursued by them. Pain got an affidavit from a commissioner at the meeting making
that decision regarding the factors that counted against going forward (basically cost &
strategy).
Result: On Judicial Review: court can interfere with deliberative secrecy sometimes.
Consistency must be balanced with procedural fairness rights. There is a limited right to
examine commissioners / agency staff. That examination must be relevant to issues
under judicial review (unless the statute says otherwise). Little window into the process.
Won’t get this examination if it is characterized as a fishing expedition.




                                             65
Abella dissent: offended that a commission member swore an affidavit for the
complainant – must uphold deliberative secrecy.

Comment: Pain, notwithstanding Ellis Don, give you some room to question agency
staff. Tough to know when you’ll need to though.

Writing and Reviewing Reasons for Decision

   He who hears decides. And then writes it down. Do not delegate this to counsel.
   Spring
   Two Principles:
     Reasons for the decision must be sufficiently those of the person who had the
       statutory power to make the decision and who held the hearing
     To avoid a reasonable apprehension of bias, miust keep third part at sufficient
       distance from decision maker. (Third party is not allowed in on deliberation –
       Khan).




                                           66
              PART III – SUBSTANTIVE REVIEW
Nov 10

Key concept: curial deference (the deference of courts to tribunals.)
This tends to be the rule on questions of fact (as with all appeals), but not normally
granted on questions of law. It’s inefficient, but there are reasons.

From the 1960s on, the SCC has moved from interefereing with every question of law on
grounds of jurisdictional error to more narrowly defining cases where they’ll interfere in
the name of expertise, to be explored through pragmatic and functional approach to
legislative intent regarding the quthority of tribunals. (See Aitken’s paper on curial
deference).

The development of jurisprudence on ‘jurisdictional error’ dominated substantive
review questions. To be proper, decisions MUST fall within the scope of delegated,
statutory power, subject to judicial supervision. The main principle is that it is ALWAYS
competent to the provincial superior court to supervise tribunals to ensure they stay
within their jurisdiction (Crevier).

Privative clauses (where Parliament limited appeals from tribunal decisions) shaped the
law on deference:
 originally, they were interpreted very narrowly – allowing appeals most of the time in
   spite of these clauses because they fundamentally contradict the purpose of a court as
   a check on governmental authority.
 The reasons for these privative clauses parallel the reasons for having administrative
   agencies in the first place: appeals cause the delay, expense, and inexpert decisions
   that parliament was trying to avoid in the first place.
 The tension is for courts to be true to legislative intent (on who should decide a
   matter) while still protecting individuals from improper exercise of statutory
   authority.
 Courts don’t trust administrative expertise on to be sufficient to take care of
   individuals’ legal rights.




                                             67
Standard of Review
Development of the Law of Deference

IF the question really is jurisdiction, what was the trend on deference?

Crevier
Facts: Tribunals cannot oust s. 96. Here, there was a privative clause that tried to keep
courts from reviewing decisions of the Professions Tribunal: “cannot appeal to the courts
on any or all grounds.”
Result: In principle, s. 96 of the BNA authorizes supervision. SCC struck down this
provision. The judicial review of tribunal jurisdication is constitutionally guaranteed. No
tribunal can be the final arbiter of its own jurisdiction. This decision also guarantees the
right of constitutional review.

“Mere errors of law within the tribunals jurisdiction.” May be excluded from judidical
review by privative clause.

Comment: How do you tell the difference beweeen jurisdiction and ‘mere’ errors?


So, through the 1960s and 170s there was a struggle to find an analytical framework for
the standard of review. Efforts included:

1. Preliminary or Collateral Questions Approach
 If there is a privative clause, questions of law within the area of the tribunal’s
   expertise will not be interfered with. Questions of law preliminary to the tribunal’s
   exercise of expertise or collateral to it will be reviewed for CORRECTNESS.
 Sound principle, but wildly unhelpful.
 Core legal questions interpreting the statute should get deference; peripheral general
   legal questions (burden, etc.) must e reviewed for correctness
 Highly manipulatable – Parkhill Bedding set up this test.
 Artificial framework, low certainty, now dead. But the principle of finding who
   would make a better decision (court or tribunal) still drives the law of deference.
    Now, we examine the legislation to see if and how jurisdiction is limited through
       a pragmatic and functional approach to the statute

2. Wrong Questions Doctrine
 Mostly in the UK, this was used to drive a huge expansion of review. Jurisdictional
   errors were found if the tribunal had asked itself the wrong question.
 In Canada, this showed up in Metropolitan Life (1970): the interpretation of an
   agency’s enabling legilation is up to the courts. Notwithstanding strong privative
   clauses, the SC went in and said the tribunal was not permitted to interpret its
   enabling law, just apply the courts’ interpretation to the facts at bar.
    Would give deference on finding of fact only. Legal interpretations will be
       reviewed on a standard of correctness.
 This was heavily ciritcized as it permitted massive review


                                            68
   Essentially wipes out private clause and shows no deference to expertise.
   As if there can be only one meaning to a law, rather than a contextual meaning!

3. High deference within expertise: CUPE v. NB Liquor Corporation
 Decisive turning point in the law on standard of review

CUPE v. NB Liquor Corporation (SCC, 1979)
Facts: NBLC was replacing striking employees with management personnel illegally.
Came dow to a question about language in an ambiguous provision, that is, a question of
law (statutory interpretation).
Result: SCC – abandons the preliminary questions doctrine (doesn’t help us to know
what standard of review we should be using). We do have to ask whether the question
was within the jurisdiction of the administrative tribunal, but we shouldn’t be too quick to
characterize something as a jurisdictional question. We must rigourously respect
legislative intent.

Here, there is a privative clause that makes board decisions “final and binding.” The
decision should not be reviewed. (The rationale for tribunals is expressed and approved,
primarily focusing on expertise). Given that expertise, tribunals are well placed to make
decisions that balance competing interests.

So what is the standard of review? Will only interfere with EXPERT evaluations of
THEIR ENABLING STATUTE if they are PATENTLY UNREASONABLE.

In this case, the labour review board understood that the statutory scheme traded off “no
striker replacement” for “no picketing”, a bargain that intimately affected the
interpretation of the phrase at hand. SCC will not review decisions on questions of law
like this unless they are patently unreasonable.

Comment: two key features of this decision.

       1. Where a statute is ambiguous, it will be for the board to interpret it, short of
       them being patently unreasonable about it.

       2. High deference is due to expertise. In labour, the agency has a definite edge
       that is absent in the courts. [If courts aren’t convince of this expertise, to this day
       they won’t show deference.]

NB – just as procedural fairness review was contextual, decision on the standard of
substantive review also look at the type of decision, the broader statutory scheme, the
impact and so forth.

Ontario courts fully bought into CUPE, and gave high deference really quickly.




                                             69
4. CUPE expertise deference limited by Jurisdiction (CBC)

In 1984 (five years later), the SCC read CUPE to mean that courts are not meant to be
deferential on all law questions where there is a private clause.

CBC (SCC, 1984)
Facts: labour board found CBC employees refusal to work overtime constituted an
unlawful strike. The matter was referred to arbitration. Question for JR: did the labour
board have the power to make such a remedial order?
Result: SCC: remedial powers raised a question of jurisdiction. This is not an
ambiguous statutory interpretation question. Therefore, the scope of powers will
continue to be reviewed on a standard of correctness.

As the question was about a jurisdictional limiting provision, the court can still wade in
on this even with privative clauses. Ask: is this a provision limiting jurisdiction? If so,
Correctness is the statndard. If not (i.e. it is a question about an ambiguous statute), then
Patent Unreasonableness is the standard.

Comment: There is no mention of either the ambiguous statute factor or the tribunal’s
expertise, factors that were central to CUPE.

Commentators did not buy it. This goes back to the preliminary questions idea.

5. Introduction the Pragmatic and Functional Approach

Note that in general, Bibeault reaffirmed the CUPE approach in terms of increased
deference to tribunals.

Bibeault (SCC, late 1980s)
Facts: There was an employer (with collective agreement) who provided janitorial
services to a school board. They were fired. Another service was later hired. The
Quebec Labour Code had a provision defining “successor employer” for the purposes of
binding a new employer to a previous contract.
Result: SCC – Did the Quebec labour commission go outside its jurisdiction in
interpreting its enabling statute? Guiding principle: tribunals only have delegated
jurisdiction, they must act within that.
1. Preliminary Questions doctrine is totally debunked. But, the principle of limited
jurisdiction supervised by the courts stands.

2. Now: ask whether ran error was made by the tribunal that is patently unreasonable;
where the construction of the statute cannot be rationally supported by the legislation.

3. Tribunal can “lose jurisdiction” (jurisdiction gets deference from the courts, losing
jurisdiction means losing deference) in two ways: by either deciding a question of law
within their jurisdiction patently unreasonably or by deciding a question of law about a
jurisdiction limiting question and not doing it correctly.



                                             70
4. How can you spot a jurisdiction limiting provision? What did the legislature mean?
Who is meant to make this decision, the court or the tribunal? Must decide jurisdiction
(the legislative intent on division of labour) using the pragmatic and functional
approach.

5. The elements of the pragmatic and functional approach that will help show the
legislative intent include:
        -the wording of the statute (privative clause)
        -purpose of the statute
        -expertise (or just efficiency?)

6. Evaluation of the pragmatic and functional approach? It better focuses the court on
legislative intent; it is better suited to the concept and consequences of jurisdiction; and it
puts a renewed emphasis on proper scope for courts supervisory review power.

7. Application: the commission’s decision should be reviewed on the correctness
standard. Why? The tribunal had to deal with the term of art (“alienation”), a broad and
general question of law where courts had the advantage of interpretation.

Comment: to the extent that the question of statutory interprestation drives at the heart of
the tribunal’s expertise, there will be deference (and vice versa – the more general, the
less deference).

Nov 12

The standard of review is the first question the courts must determine when asked to
review the merits of an administrative decision. The standard is decided by seeking the
legislative intent as to who was meant to make the final decision. The pragmatic and
functional approach to this looks at the wording of the statute (esp. the privative clause),
the purpose of the statute and expertise to decide who is meant to decide this.

6. Evolution of the Pragmatic and Functional Approach

This approach was first used in Bibeault for a narrow jurisdictional question. Now, it is a
proxy for the contextual approach to legislative intent on the standard of review or the
level of curial deference required by Parliament. Labour, as a rule, almost always gets
patent unreasonableness by focusing on the expertise factor (though usually a strong
privative clause attached too).

Thus far, we have learned that tribunals can lose jurisdiction (or deference) by either:
       -making a patently unreasonable decision on a question of law in their jurisdiction
       (i.e. there is high deference on questions of law that fall within the special
       expertise of a tribunal)
OR     -making a mere error of law on a legal issue defining the tribunal’s jurisdiction
       (i.e. there will be low deference deciding the scope of jurisdiction)




                                              71
Ask: did the legislature intend the tribunal to have the last say? [It is generally assumed
that they did on findings of fact, which generally get high deference (only overturned if
patently unreasonable) but there is more disinclination to defer on questions of law.]

Mossop (SCC, 1993)
Facts: Mossop was a federal civil servant. He applied for bereavement leave to attend
the funeral of his same sex partner’s father. He was denied the paid day off because the
collective agreement defines spouse as a member of the opposite sex. Complained to the
Federal Human Rights Tribunal that this constituted discrimination on the grounds of
family status. The HRT ordered that he be paid for the day, and the collective agreement
be modified.

Result: The Federal Human Rights Act has no privative clause. It was argued that the
expertise there requires deference to their interpretation of their enabling statute. Fed Ct
of App: decision interpreting ‘family status’ was a question of law reviewable on
correctness basis and the Tribunal got it wrong.

SCC: what’s the standard of review for the HRT interpreting a question of law that arises
within their own statute? Lamer (for the majority):
        -not only was there no privative clause, there was the opposite: a statutory right of
        appeal
        -definitely a question of law
        -even without a privative clause, we’re moving toward curial deference with
        specialized tribunals interpreting their own act. Thus, the absence of a privative
        clause is not determinative. Expertise may still curry deference. (Zurich
        Insurance was the first instance where courts recognized that they may need to
        defer to expertise even without a privative clause).
        -However, as in Zurich Insurance (also a human rights commission matter) hRTs
        do not have any special expertise that courts do not have. So in the absence of
        both a privative clause AND expertise, their decision on a question of law will be
        reviewed to the correctness standard (no deference).

At the SCC, 6 found the standard was correctness, of which 4 said the decision was
wrong and 2 said it was right. L’H-D said the said the standard was patent
unreasonableness and the HRT made the right decision (4-3 decision overturned).

Dissent (L’H-D): The advantages of deference include economic efficiency, expediency,
and the encouragement of expertise. The drawback is that not all tribunals are equally
specialized. We have to vary the level of deference to the context, though we will always
be able to review for jurisdictional error. Also, no decision on any matter by anyone
that is patently unreasonable will ever survive judicial review. The question is, are
there any things which get low deference, the correctness review?
         If the tribunals powers are extensive, that will be a hint to defer
         Issues squarely within the specialized expertise won’t be interfered with (per
            Zurich Insurance) – expertise as appointed or developed
         If there is high policy content, we should defer


                                             72
            Any constitutional question will be reviewed for correctness
            Any jurisdiction question will be reviewed for correctness

Comment: As a rule, labour tribunals get high deference, human rights tribunals get no
deference and immigration boards fall somewhere in the middle.

Note: there is a close connection between finding on family status and finding of fact.
There is really little distinction between questions of fact, of law and mixed questions.
See MA article. There are very few questions of law, but they attract correctness. Most
questions are mixed, must fall somewhere on the spectrum between correctness and
patent unreasonabless.

Nov 17

Bradco Construction Ltd. (On Ct App, 1997)
Facts: Collective agreement with Bradco required Bradco to use only union labour.
They were to build a university building. Bradco signed a sub-contract with Dobbin (a
formally related company) to build a component and they used non-union people. The
union complained and the arbitration board found against Bradco.

Result: Bradco lost JR, won appeal [App Ct found that the standard of review was patent
unreasonableness, but found the decision was patently unreasonable!]

SCC: There is a history of a longstanding dispute between Bradco and the union (which
the arbitrator took into account). This practice of sub-contracting to non-union labour in
spite of collective agreement is called ‘double breasting’; it undermines unions and it had
happened before. The question was, could the arbitrator examine extrinsic evidence in
construeing the collective agreement?

The statute’s privative clause was only for the labour board, not for an arbitrator
appointed under the collective agreement (but the arbitrator’s decision was meant to be
the “final settlement.”)

The Court can review for errors of law on the face of the record. How deeply? Depends
on the statute, purpose and question at issue.
        -if there is a full (“true”) privative clause, can only review if a jurisdiction
        question was decided incorrectly or a law question within jurisdiction was
        patently unreasonable. (Bibeault)
Here, dealing with an aribtrator. Deference would only come on expertise, and a
question of law won’t generally require any deference, so therefore, the correct standard
is correctness. (The general rationale for deference does not apply to arbitrator).

However, in this case the question of law went right to the heart of the expertise. Link
that with the “final settlement” indication and you give deference. So, the right standard
is in fact patent unreasonableness.




                                             73
Comment: Generally, the court is moving to pragmatic / functional approach: figure first
if they should be interfering based on the wording of the statue, the purpose, expertise
and the nature of the question.)

CUPE v. Montreal (SCC, 1997)
Facts: Union employees refused to work overtime. The Counsel required them to
anyway per power to ensure the maintenance of services to the public.
Result: JR: Union appeal failed. App Ct: quashed overtime order (on the basis that a
question of the counsel’s power was jurisdictional and therefore must be correct; and
there was no power to order overtime).
SCC: the context of curial deference now means that we should hesitate to apply the
jurisdiction label too quickly. Should instead seek to find what the legislature meant on
the finality of the counsel’s decision:
 Clearly wanted to regulate unions in the public sector (competing interests, resolved
    in the person of the counsel)
 Counsel had the power to order overtime as the arbiter of the public interest in unions
    and the provision of public services. Matters balancing public policy interests are
    generally left to tribunals.
 What was the purpose of the statute? A unique setting (public service) – with the
    counsel representing both sides. There was an effective dispute resolving purpose,
    which shouldn’t be undermined by second guessing it.
     Outright rejection of the remedial powers = jurisdiction = correctness line from
        CBC
 Decision to make the order was within their jurisdiction, so it should be reviewed on
    the patently unreasonable standard. It passes.

Comment: forceful articulation that P&F is the approach to standard of review. Killed
the idea that all remedial powers are jurisdictional and therefore reviewed on the
correctness standard (which had been hanging around since CBC).




                                           74
Extending the Reach of Deference: Statutory Appeals

By the mid-90s, where there is a statutory right of appeal, courts are confident reviewing
questions of law or jurisdiction on a correctness standard.

This is done with reference back to Bell (1989) – where even if there is a statutory right
of appeal, courts MAY defer on a question of law that goes to the very expertise of the
tribunal. (Pezim, below, really gives life to the Bell case).

Courts focus on the nature of the problem and the nature of the expertise – if ther is a
connection there may be a case for deference.

The fact of an appeal right necessitates the creation of a middle standard: reasonableness
simpliciter.

Pezim v. BC (SCC)
Facts: The SEC suspended Pezim for insufficient disclosure. Pezim had a statutory
appeal right on any question of law. He appealed the interpretation of the phrase
“material change”, and was granted leave to do so.
Result: SCC conducted an analysis on the standard of review to the SEC
 There is no privative clause (in fact, a statutory right of appeal)
 “Material change” is a question of law
The problem is that we only have two choices: either patent unreasonableness (highest
deference, given with true privative clause, no jurisdiction problem, no statutory appeal
rights) or correctness (lowest deference, for jurisdiction questions, where the tribunal has
no special expertise on the question). HERE, we’re kind of in the middle: a statutory
right of appeal but from an expert tribunal addressing a question squarely in their
expertise. How do we address this?
1. Start with the pragmatic and functional approach
 Wording -> statutory right of appeal -> low deference
 Purpose -> public interest market regulation -> high deference
 Expertise -> specialized (securities) & going to the Q -> high deference
 Nature of the question -> law -> low deference

Regulation to be interpreted in public interest context which requires expertise vested in
tribunal. There is also a high policy content here which counsels deference. In all the
circumstance, Iacobucci wants to give considerable deference and respect the decision.
Counts this as somewhere mid-spectrum.




                                             75
Southam
Facts: Southam owned lots of Vancouver dailies, and then bought of a lot of community
newspapers. The Competition Commissioner wanted divestitutre because this deal would
substantially lessen competition. The tribunal had to determine whether the papers
competed with each other in the same market. The Tribunal mostly rules in Southam’s
favour (that there is not much competition between papers).
Result: The Commissioner appeal to the Fed Ct of App, which wades right in and fully
overturns the decision (these papers do compete; there must be divestiture!)

SCC (Iacobucci): There is no privative clause, so we are permitted to intervene. But
courts should only go in where legislature wants us to. With a statutory right of appeal,
we can ask these questions to get at standard of review by the pragmatic & functional
approach:
1. Nature of the question? Could be either:
-Fact: what happened?
-Law: what’s the legal test?
-Mixed: do facts meet the test?
Here, market characterization is a mixed question of fact and law (Law: what is a market?
Fact: this is where the papers compete. Mixed: is this a market?)

2. Wording of the statute. Given that there is a statutory right of appeal, it is tough to
turn around and be deferential to the tribunal’s decion.

3. Purpose: the Competition Act is a general one – to encourage competition (with the
goal of reducing consumer prices, international competitiveness etc.) Aimes are
economic more than legal, and meant to be interpreted by business people.

4. Expertise: purpose informs the type of expertise that is sought in the tribunal.
Expertise is the most important fact. The key question is whether the expertise goes to
the heart of the question.

In this case:
 The pro-deference factors were that it was a mixed question of fact and law, there was
    a broad economic purpose, and the question goes to the heart of tribunal expertise.
 The anti-deference factors were the statutory right of appeal and the fact that judges
    were appointed to the tribunals.

KEY: because it has factors weighing in both directions, we need a middle standard.
It will be called reasonableness simpliciter. When we review on this standard, the
decision must be able to stand up to reasonably probing analysis.

So, how does patent unreasonableness relate to reasonableness simpliciter? Might be
how obvious the defect is. Really obvious = P.U.; only obvious after poking and proding
= R.S.




                                             76
Comment: Iacobucci notes that this is what he was thinking in Pezim – it should be
reasonableness there.

AITKEN: characterizing the question is very contested ground. Decision allows or
denies deep review. Theory: There are very few questions of pure law, but if you get
one, it will be reviewed as correctness; everything else is mixed fact and law which falls
on a spectrum. That was never stated clearly.

There was no principled difference between ‘material change’ in SEC Act (Pezim) and
‘market definition’ in the Competition Act (Southam). Why was one law and the other
mixed? Incoherent?

Nov 24

Factors in the Standard of Reviews:
-Southam: key is expertise
-in any standard question, ask whether question goes to tribunal’s expertise. If so, check
it’s reasonable (with a somewhat probing analysis).
-Question: is this a closed list of standards? PU/RS/Corectness?

Law Society NB v. Ryan (On Ct App, 1997)
Facts: Professional misconduct verdict, disbarment. Ryan appealed, and ct remitted the
decision to the committee to hear evidence they didn’t before. The Committee confirmed
the disbarment. The Ct of App substitutes its own penalty (suspension)
Result: SCC: how do we review the committee’s decision? Pragmatic and functional
approach to discovering legislative intent on who makes final decision. This P&F
approach is correct for both judicial review and statutory appeals. There are only three
choices of standards, and the components of P&F is wording, expertise, purpose and
nature of the question.

Here,
-there is a broad right of appeal (low deference)
-expertise has developed in the disciplinary committee (some deference)
-the purpose is to protect the public interest in professional regulation (high deference)
-mixed question: did Ryan’s conduct meet or fail this standard? (high deference)
So, the appropriate standard is reasonableness. The court must exercise some deference.
There is not likely a right answer, just a supportable one. This reasonable decision is
distinct from the clearly irrational decision.
Comment: There are only three standards. Note that the pragmatic and functional
approach can now be used to check if courts should interfere with questions of fact.




                                            77
The Modern Standard Articulated: Pushpanatham

   This is the case evaluating the standard of review
   The pragmatic and functional approach is used here to justify a correctness review on
    a question of law.
   Courts are still reluctant to acknowledge human rights expertise outside them, low
    deference

Pushpanatham v. Canada (Minister of Immigration) (SCC, 1998)
Facts: Pushpanatham claimed refugee status, but it was never determined as he got
permanent resident status. After a heroin conviction, he renewed that claim because he
was due to be deported. The refugee board dismissed the claim as the UN Convention
excluded traffikers from its protection.
Result: Fed ct denied Pushpanatham’s judicial review application but certified a question
of law for appeal: was it an error of law for the refugee board to interpret the convention
to exclude traffikers?

SCC:
1. What is the standard of review?
-Reminder that we are trying to get at legislative intent: did they want refugee decisiosn
final or reviewed?
-We have abandoned lots of labels in favour of the “pragmatic and functional approach”.
But we are still talking fundamentally about jurisdiction: who should decide???
-Application:
        -there is no privative clause (low deference)
        -inexpert tribunal (low deference)
        -purpose: polycentric policy matter – treatment of refugees (high deference)
        -nature of the question: law. (Note: some questions of law will get deference if
        the other three factors counsel it. But that wasn’t the case here. This question
        will be useful to judges in the future, and is thus best decided in court.)
-Result: correctness standard. (And the refugee board erred in finding that a trafficking
conviction took P out from the Convention’s protection – it was one incident, not a
sustained human rights violation and so the Convention may still apply).
-Note that the refugee board was assumed to “just” be doing human rights work, and is
given even less deference than human rights tribunals.

Comment: Note that the ramifications of this decision (refugee convention + drug
offences) were huge, and the SCC wanted in!




                                            78
The New Battleground: Nature of the Question

***contitutional and jurisdiction questions still get correctness***

This question is where most of the work gets done. It’s pretty manipulatable.

Trinity Western (SCC, 2001)
Facts: Private BC school with Church affiliation offered a B.Ed (after four years at TW
and one year at Simon Fraser). There an appearance of gay discrimination in teacher’s
code at Trinity Western. The BC College of Teachers turned down a TW application for
full accreditation because they didn’t want new teachers tainted this way.
Result: JR: BCCT was not intended to make human rights decisions, and in any case, it
was too speculative. Mandamus was granted, Trinity got its accreditation. Appeal:
affirmed trial court as there was no reasonable basis for the BCCT decision. SCC:

1. Is this matter (discrimination) within the BCCT’s jurisdiction?
        -Purpose: train teachers for the public system
        -Must include the power to evaluate discrimination potential before granting
        accreditation
        -No jurisdiction problem.
2. Pragmatic and Functional approach to standard of review:
        -Wording: no privative clause (low deference)
        -Purpose: broad public interest matters (high deference)
        - Expertise: not expert in balancing competing human rights concerns; no
        expertise relative to the courts (low deference)
        -Nature of the question: law – existence of discriminatory practices (evaluate
        TW’s practice against HR standard). Note that the record was really speculative –
        code of conduct creating discriminatory teachers … no evidence at all.
Result: standard is correctness, overturned decision

Dissent (L’H-D): standard should be patent unreasonableness. Analysis goes like this:
        -no privative clause (not determinative per Pushpanatham) -> low deference
        -expertise was huge in balancing professional and public interest -> high
        -purpose: polycentric policy question ->high deference
        -nature of the question: not law! Fact!! (how code of conduct affected students
        future preparedness to teach? Were codes taching things against the public
        interest? -> high def
Result: patent unreasonableness, let decision stand.

Mattel (SCC, 2001)
Facts: CITT interpreted the phrase “goods sold for export” to rule against Mattel.
Result: What’s the standard of review? Pragmatic and functional approach:
        -narrow p-clause protects facts only, else statutory appeal (low def)
        -expertise: (with regard to appointments) – not necessarily (low def)
        -purpose? Low policy role for CITT (low def, per Pezim)
        -nature of question: pure question of law (low def)



                                            79
Comment: Both Southam (market) and Pezim (material change) were questions of law,
but they both got considerable deference in the name of expertise. Here, expertise is
undermined – it doesn’ tgo to the question so very little deference is given. (Low
watermark)
Court seems to think that where a question has some future application, it’s a question of
law, little tolerance for any tribunal imput, gets correctness (Superior Propane) The key
is still expertise going to the nature of the question.

Tension: SCC is animated by a desire to clear of statutory ambiguity – wants to ensure
it’s not left to tribunals.
Result: too formal, gets in the way of identifying legislative intent (says the academic –
lawyers love the categories).




                                             80
Applying the Standard of Review
Questions of Law

Mossop
Facts: See above – gay bereavement leave
Result: Huamn rights gets no deference. The Canadian Human Rights Act did not then
include sexual orientation, so they tried to read it in. The SCC then got stuck figuring out
whether family status included sexual orientation. No Charter arguments raise.

Above, we saw how the standard of review for a human rights tribunal interpreting a
question of law is correctness.

Application: sexual orientation was not only absent, but the hansard showed it was
debated and excluded by the legislature. Lamer: couldn’t read in orientation without
offending legislative intent. LaForest: nothing in the statute to suggest that we should
defer to human rights tribunals (we may on facts, but they have no law expertise).

Dissent: L’H-D – should be patent unreasonableness! They were expert! Distinguished
Zurich Insurance (tables with discriminatory assumptions, permitted per human rights
act) Wide appeals there. Here, no fact appeals. They did have expertise going to the
question!

--

Given a question of law, there are three possible standards of review:
1. With a statutory right of appeal, and low expertise, must be correctness.
       -Mossop
2. With a privative clause and expertise, must be patent unreasonableness.
       -CUPE (first high curial deference standard in 1979)
3. With a weak privative clause, a public policy purpose, and relevant expertise, must be
reasonableness simpliciter.
       -Pezim, Southam

Questions of Fact
 Appeal courts generally don’t want to interfere with findings of fact in the courts
  below
 A fortiori with tribunals: not just “hearsay” problem (as with courts) but also no
  special expertise (not often seeing the same contexts)
 But in some cases, legislature may provide statutory appeals on fact (often the case
  with human rights cases).

Zurich Insurance (SCC)
Facts: the Human Rights tribunal heard a complaint against ZI that their premiums
discriminated on age, marital status and sex (as they were highest for young single men).
ZI argued that they had the highest statistical risk factor. The Human Rights Act permits
reasonable, bona fide discriminatin. The HR tribunal interpretated that exception to mean


                                            81
that if there was no reasonable non-discriminatory alternative available, then you could
discriminate. The Tribunal found an alternative method, and so found against ZI.

ZI appealsed on law, fact, and both – there was a really wide statutory appeal right that
permitted the courts not just to reverse but to substitute their own opinion.

Result: The normal standard of review on findings of fact is to leave them standing
unless there was a palpable and overriding error. If the tribunal is specialized, they
may well get deference generally, and especially on facts that fall within expertise.
HERE, the the appeal clause is so blindingly clear – thre is to be no deference,
correctness is expected.

The question of fact – whether the alternative was insufficient or reasonable – was
decided wrong. The alternative was not sufficient to exclude ZI from the legal exception
permitting discrimination.

(The tribunal was also wrong on the question of law – that the legal test for reasonable
and bona fide discrimination is not in fact to be evaluated with regard to alternative
measures).

Comment: L’H-D supported the tribunal.


Appeal clauses attached to findings of fact give rise to two possibilities:
-a de novo hearing (zero deference to the tribunal)
-a review of the findings on the record (medium deference)

Classic problem is that the tribunal made a finding with no evidence. This can be
construed as tantamount to an error of law or a jurisdictional error if it is egregious. This
is important because the right to appeal on a question of fact is rare. Characterizing a
mistaken question of fact as a question of law may be necessary to trigger the appeal right
in the first place. This characterization might be phrased like “not sufficient evidence” or
“finding of fact were wrongly admitted, or poorly handled procedurally.”

Keep in mind that normally, there is no interference with a fact unless the tribunal made a
palpable and overriding error.




                                             82
Judicial Review
 A statutory remedy under the Judial Review Procedures Act (ON) or the Federal
   Court Act. S. 18 permits the Federal Court to issue writs in its discretion on
   application for review of administrative decisions.
    The Fed Ct is a statutory one (Const s. 101) not a superior court with inherent
       jurisdiction to issue these writs (per s. 96)
    The Fed Ct Act sends decisions from the CITT straight to the Fed Ct App
 There is a broad right to challenge administrative bodies for writs on grounds that it
   was procedurally or substantively unfair.
 Grounds for review including erroneous finding of fact (s. 18(4)) (where they are
   capricious or perverse or without regard to the material before it).

Statutory Appeal
 Not an inherent common law right
 Must find this in the enabling statute.
 Will identify whether the grounds are fact, law or mixed
 Usually narrower than judicial review
 Must go the appeal route first, unless it will not give you the remedy you need


 Think about what strikes you as wrong in the administrative decision, and what remedy
      would fix it. Then see whether JR or Appeal would get you to the remedy.

Content of Patent Unreasonableness

…Does palpable and overriding error equate to patent unreasonableness?

National Corngrowers (SCC, 1990)
Facts: the CITT determined that American subsidies to their grain growers were injuring
Canadian farmers. The American’s dumping was causing injury. The CITT was subject
to a privative clause (“final and conclusive”). The CITT looked at two matters: the
GATT “material injury” stuff and evidence of “potential imports” (as there weren’t actual
imports to examine).
Result: SCC – Wilson

1. Philosophy on why we do judicial review
Dicey: the rule of law is restricted to the idea that courts remain supervisors of any
decision maker exercised as a delegated power on the precise terms of the delegation.
Problem: that ignores the idea that agencies should be able to discharge their duties
without undue interference in their specialized agencies. SO, they should be permitted
generally to interpret their statutes in the way they see fit. There are reasons CUPE) for
deference on interpreting enabling statutes, and you do it when there is a true privative
clause with expertise going to the heart of the question. You give deference within their
jurisdiction. Here, National Corngrowers, we’re stepping away from the Dicey
interpretation.



                                            83
2. Application of “patently unreasonable” standard
-Dickson (in CUPE) held that you only interfere if the conclusions are patently
unreasonable. WRONG.
Wilson held that you bonly look at the board’s interpretation of their enabling statute. If
that decision is not patently unreasonable, then the inquiry ends. You don’t look at the
consequences that flow from that interpretation. That’s deference.

Gonthier wanted to examine the quality of the evidence, and the reasonableness of
looking to the GATT. Wilson argued that he had no business asking about either. Patent
unreasoanbleness means just a light review, looking only at the statutory interpretation.


Dec 1
Discretionary decisions and judicial review

Introduction
 Many statutes contain provisions that delegate discretion to decision makers
 These provisions will have two main variables:
     The delegation will be either implicit or explicit
     The delegation may be broad, or limited by a set of factors to be considered
 A delegation of discretion is an express legal power to choose a course of action from
    a range of options
 Discretionary decisions must be made according to a statutory grant, and only within
    those bounds
 All discretionary decisions must be in accordance with the purpose / goals of the
    statute as set out in its goals and any guidelines
 The key is to guard against arbitrariness while at the same time permitting the
    flexibility necessary for good governance
 Two key sorts of problems
     Drastic (traditional common law errors)
         Bad faith
         Improper delegation
         Undue fettering of discretion
             The key here is that if an agency gets discretion it cannot turn around and
                 declare that it will always decide a certain way. There cannot be binding
                 rules that defeat the purpose of the delegation in the first place.
     Jurisdictional
         DM took account of a factor that was irrelevant
         DM failed to take account of a factor that was relevant
         DM was acting for an improper purpose.
 Relevance is here evaluated with reference to legislative purposes and intent
 Per Slate, not only must the enabling legislation which grants discretion be
    constitutional (Charter-proofed), but the exercise of discretion must be as well.




                                            84
Reviewing discretionary decisions
 The factors to look at when reviewing discretionary decisions are
    The language of the provision conferring the discretion
    The purpose of the statute (the more fact-based/specific, the more deference)
    Any checks on the discretion (political accountability, appeals)
    Expertise (though many discretionary decisions are made without expertise or a
       hearing at all so this may be unnecessary)
 Discretionary decisions are usually reviewed according to statutory appeal routes
 Otherwise, judicial review proceeds on an ultra vires doctrine: did the decision
   maker act within their statutory authority and review all the relevant factors and
   none of the irrelevant ones?

Roncarelli v. Duplessis
Facts: A liquor license was revoked because D was angry that R was posting bail for
jailed Jehovah’s Witnesses. The liquor board had discretion to revoke licenses as it saw
fit.
Result: There is no such thing as absolute or untrammelled discretion. There is always a
framework to interpret that exercise. If an administrative action goes outside that it is as
wrong as fraud or corruption.
Comment: This is more or less a jurisdictional approach. No tribunal can determine the
limits of its own jurisdiction; that is for the court to supervise on a standard of
correctness. Even CUPE acknowledges that some decisions will be reviewed for
correctness, especially whether a decision maker accounted fully and only for relevant
factors.

Baker v. Canada (Immigration)
Result: there is no bright line between questions of law and errors in the exercise of
discretion.
Comment: This is the first application of the pragmatic and functional approach to
discretion.


In judicial review challenges for the following three mistakes, the standard of review is
sought through the pragmatic and functional approach:
         DM took account of a factor that was irrelevant
         DM failed to take account of a factor that was relevant
         DM was acting for an improper purpose.



Examples of review on relevant factors: Saresh, Sheean Dalton

Examples of review for improper purpose: Shell, Calgary, Baker




                                             85
Saresh
Facts: The Minister of Immigration made a deportation order based on a finding of fact
that Saresh was a threat to national security. This was reviewed in two stages:
        1) Was he actually a threat to security?
        2) Was he deportable if he faced a risk of torture at home?
Result: If it was determined that an individual would face torture, a deportation order
would violate s. 7. A discretionary decision to deport must take that into account.

1. What is the standard of review on the threat decision?
 It was a question of fact
 It would have been a constitutional question on if they asked whether the Canadian
    conscience would be shocked to deport Saresh to face torture. That question would
    engage s. 7 interests.
 The courts below had not ruled on this question (because even if the standard had
    been correctness, they fully agreed with the Minister’s decision).
SCC found the standard of review should be patent unreasonableness
 Not for the court to reweigh all the factors. Just to ensure that the Minister turns her
    mind to all the relevant factors, and does not deal with irrelevant factors.
 Applied the Pushpanatham pragmatic and functional approach to finding a standard
    of review for this discretionary decision:
     Wording – no privative clause (low deference) but broadly granted discretion
        (high deference)
     Expertise favours deference because it is placed in the Ministers hands only
     The purpose of the statute (humanitarian balance) favour deference
     The nature of the question is very fact specific (again, deference)
This analysis of legislative intent is placed in the context of the respective roles set out
for the legislature, courts and the Minister / tribunal
 Legislature: set rules within constitutional boundaries
 Minister: make decision based on parliamentary delegation according to the
    constitution
 Courts: on judicial review, determine if the minister’s decision was within the
    parliamentary delegation and constitutionally OK

2. Standard of Review on the risk of Torture
 This was a threshold fact question about the state of a foreign country. There was full
    deference (patent unreasonableness standard)
 Will only interfere if no evidence supports the decision

The discretion here is held not to violate s. 7, but is returned for a new hearing because of
process problems.

Comment: This nuanced review of discretionary decisions makes it look very similar to
the analysis for questions of law




                                             86
Re: Sheean
Facts: Criminal Injuries Compensation Board (CICB) denied a request for compensation
from an inmate who had been badly assaulted while in custody at a federal institution in
Ontario. The Board’s enabling statute gave them wide power to make an order within
their discretion in accordance with factors they considered relevant. They denied the
request because a) the applicant was a convict (applicant behaviour was noted as a factor
in the Act) and b) he was in federal custody & had not sought federal compensation.
Result: Div ct dismisses both factors as irrelevant.
 Applicant behaviour refers to inciting or provoking the assault, not to an old
    conviction. And the federal appellation excludes a whole class (which would have
    had to been done clearly by the legislature).
 Standard of review? A court can interfere if the board did not take into account
    relevant factors or took into account irrelevant factors, no matter how broad the
    discretion. There is apparently an objective test of relevance (didn’t buy into the
    subjective idea put forward by the Act / board).
 Ct supervises the factors only, not the result flowing from them or the weighting
    process

Ct of Appeal overturns
 The board’s discretion is untrammelled
 We review only for arbitrariness or capriciousness
 This statute means that the board gets to decide which factors are relevant, we won’t
    interfere especially on a standard of correctness (which is essentially what the board
    did)

Comment: Why did we get this result? The denial was clearly within the board’s
jurisdiction. The statute was just so wide. The Act has since been changed to require the
board to account for all relevant factors.

Dalton (early 80s)
A case under the new Act for the CICB
Facts: CICB denied compensation to a girl who went with some men who beat her up
and threw her out of a moving truck. Why? Because they found contributory acts on her
part (drinking, going with them in the first place - sickos).
Result: Div ct characterized this as an error of law to not account for the severity of her
injuries. Note that they are not supposed to reweigh those factors (kinda do here.)




                                            87
Improper Purpose cases

Shell v. Vancouver
Facts: Vancouver passed a bylaw in support of the apartheid-protest that said Vancouver
would do no business with Shell so long as they did business in South Africa. Shell
argued this was passed for an improper purpose (in pursuit of a mandate outside
municipal goals). Vancouver argued that their procurement bylaws were commercial
decisions that could not be reviewed.
Result: 5-4 SCC Split in favour of Shell. Both sides reject Vancouver’s argument and
hold that procurement can be reviewed.

Dissent (McLachlin): purposive approach to municipality’s enabling statute: only
overturn decisions where they are clearly ultra vires. Otherwise, let them have nearly full
rein under the discretionary “power to provide for good rule or governance” provision.
Refers to Greenbaum.

Majority (Sopinka): Restricts municipal discretion with reference to the purpose of the
statute, that is, good governance within city limits. This territorial limit on their purposes
meant that the apartheid bylaw was ultra vires. Asking about what kind of power the
legislature intended to delegate: this probably wasn’t it.

Comment: This decision is much more strict than Greenbaum


Calgary v Taxis
Facts: Broad grant of power to the municipality.
Result: Alberta Ct of App construed it very narrowly, so that taxi regulation did not fall
within their jurisdiction


The idea of improper purpose review is that decision makers must exercise their power
within the scope of the purpose of the enabling statute. This decision will be reviewed on
correctness.

Baker
Facts: The Minister had the discretionary power to except Baker from the requirement to
apply for residency from abroad on humanitarian and compassionate grounds. Q: do we
have to take the Convention on the Rights of the Child into account to evaluate the
Minister’s decision?
Result: SCC unifies the standard of review analyses for discretion and all other
decisions. Here, it was reasonableness – no privative clause, there was relative expertise
(vested in the Minister, subject to political accountability), public policy purpose, fact
based question. There was a lot of deference, but not total. It had to be reasonable, and it
was not. Same analysis for conferral of discretion as questions of law: p&f approach




                                             88
Framework

a) Standard of Review
Guiding principle: legislative intent.
Use the pragmatic and functional approach, with the following elements:
       -Language of the statute (privative clause? Statutory right of appeal?)
       -Purpose of statue – polycentric policy matters? Is there a right answer?
       -Expertise of tribunal – as relative to the court (found in appts or experience)
       -Nature of the question – jur? Law (pure, dirty), fact, mixed?
Balance the results of these four to find legislative intent.

b) Spectrum of Standards
Correctness – means no deference
Reasonableness – medium deference
Pantent unreasonableness – really high deference

 Patent Unreasonableness             Reasonableness                   Correctness
Must not be clearly wrong      Must be able to stand up to     Must be right.
or irrational                  a probing examination
Expertise + P-clause + any     Mixed questions (Southam)       True jurisdiction questions
question w/i jurisdiction                                      (Royal Oak)
(CUPE, Bibeault)
Questions of Fact              Questions of law                Pure questions of law (MA:
                               (imperfect) + relevant          outside core expertise)
                               expertise (Pezim)
                                                               Mixed questions if there is a
                                                               stat right of app, and
                                                               irrelevant expertise
                                                               (Mossop)
                                                               Fact questions on super
                                                               clear statutory appeal right.
                                                               (Zurich Insurance)




                                             89
Dec 3
Constitutional Questions
Do tribunals have the power to interpret the constitution?
Key principles

1. Tribunals can make a preliminary decision on division of powers / jurisdiction
        These decisions will be reviewed on correctness
        Rationale: there is legislative intent that tribunals act within their jurisdiction

2. Tribunals should interpret their legislation with the assumption that it is constitutional
        General rule of interpretation
        “Charter values” statements

3. If a tribunal has the power to interpret questions of law, that includes a power to rule
    on constitutionality.
          Martin, Cooper, Webber

4. Tribunals thus have limited powers to issue as s. 24 remedy, rendering their law
   inoperative




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