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					ADMINISTRATIVE LAW

Procedural errors............................................................................................................................................7
     Common law threshold for procedural review.................................................................................9
     Constitutional threshold for procedural review and Bill Of Rights................................................13
     Legitimate Expectations..................................................................................................................19
     Content of procedural fairness........................................................................................................20
     Choice of procedures......................................................................................................................23
             Notice.................................................................................................................................23
             Pre-hearing discovery/disclosure.......................................................................................24
             Delay..................................................................................................................................25
             Oral hearing.......................................................................................................................26
             Right to counsel.................................................................................................................28
             Cross examination..............................................................................................................30
             Disclosure and official notice............................................................................................31
     Deliberative process (delegation, those who hear must decide/consultation, and reasons)............35
     Impartiality and independence........................................................................................................42
     Consequences procedural breach....................................................................................................52
Substantive review.......................................................................................................................................52
     Dunsmuir.........................................................................................................................................52
Constitutional challenge to enabling legislation (correctness standard)......................................................61
Remedies......................................................................................................................................................58


Focus of administrative review
Since admin law is concerned with the relationship between courts and ADMs, it responds to the
following question: if someone is not happy with a decision of an ADM, can that person have the matter
reviewed by a court, and if so, on what grounds? This question raises several issues:

    1. By what route does an admin decision come before a court?
There are two routes by which the decision of an ADM might come before a court: 1) appeal (sometimes
referred to as ―statutory appeal‖) and; 2) JR.

Appeals - A right to appeal the decision of an ADM, whether to another admin body or to a court, exists
only if such a right is explicitly created in the enabling legislation; thus, there is no such thing as a
common law right of appeal. If there is an appeal section, it will identify who may bring the appeal and
who may hear the appeal, and will also set out the grounds on which an appeal may be brought (for
instance: on questions of law alone, on questions of law and mixed fact and law, or on any issue before
the ADM). The appeal section may also give some information about how the appeal court is to approach
its task: is it to hold a full hearing de novo or something less? May it substitute its own decision for that
of the ADM, or only quash a decision and send it back for reconsideration?

JR – not all admin statutes provide for a right of appeal. Some enabling legislation is simply silent on the
issue, while other statutes contain privative clauses intended to shield the functioning of the ADM from
judicial intervention. The lack of an appeal section does not, however, mean that the decisions of the
ADM are completely immune from judicial oversight. As noted above, even the existence of a full
privative clause does not give such immunity. Because the concept of JR did not originate with
legislation, but from s. 96 courts‘ interpretations of their own inherent authority, the phrase “common law
judicial review” has come to be used. The federal government, BC, Ontario, and PEI have codified the
common law principles of JR, thus giving rise to the term “statutory JR” for those jurisdictions. JR of
federally created ADM‘s is done by way of the Federal Court Act 1985.

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    2. What court is authorized to hear an appeal or application for JR?

Appeals – as noted above, where there is a statutory right of appeal, the appeal section will state the forum
in which the appeal is to be held.

Judicial review of provincially created ADM’s – for common law JR, the application must be brought in
the section 96 court of the province: the Supreme Court of NS, Supreme Court of NB, etc.

Judicial review of federally created ADM’s – review of federal ADM‘s is done by either the Federal
Court Trial Division or the Federal Court of Appeal, depending on whether the ADM in question is
covered by s. 18 or 28 of the Federal Court Act. Subsection 18(1) states that subject to section 28, the
Trial Division has exclusive jurisdiction over applications for JR regarding federal ADMs. Section 28
then lists a number of federal ADM‘s, and JR of those is done by the Federal Court of Appeal:
    (a) the Board of Arbitration established by the Canada Agricultural Products Act;
    (b) the Review Tribunal established by the Canada Agricultural Products Act;
    (c) the Canadian Radio-television and Telecommunications Commission established by the
         Canadian Radio-television and Telecommunications Commission Act;
    (d) the Pension Appeals Board established by the Canada Pension Plan;
    (e) the Canadian International Trade Tribunal established by the Canadian International Trade
         Tribunal Act;
    (f) the National Energy Board established by the National Energy Board Act;
    (g) [Repealed, 1992, c. 49, s. 128]
    (h) the Canada Industrial Relations Board established by the Canada Labour Code;
    (i) the Public Service Staff Relations Board established by the Public Service Staff Relations Act;
    (j) the Copyright Board established by the Copyright Act;
    (k) the Canadian Transportation Agency established by the Canada Transportation Act;
    (l) the Tax Court of Canada established by the Tax Court of Canada Act;
    (m) umpires appointed under the Employment Insurance Act;
    (n) the Competition Tribunal established by the Competition Tribunal Act;
    (o) assessors appointed under the Canada Deposit Insurance Corporation Act; and
    (p) the Canadian Artists and Producers Professional Relations Tribunal established by subsection
         10(1) of the Status of the Artist Act.

    3. Who can challenge an administrative decision?

Standing as of right – s. 18(1) of the Federal Courts Act provides that an application for JR of a federal
ADM may be made ―by anyone directly affected by the matter in respect of which the relief is sought.‖
Similarly, at common law, a person whose rights or interests are substantially affected by an admin
decision will have standing to challenge that decision.

Public interest standing – even where a person does not have standing as of right, that person may be able
to argue for standing based on the concept of public interest. Between 1975 and 1981, the SCC
recognized the possibility of public interest standing where the constitutionality of legislation was
challenged. In Finlay v Canada (Minister of Finance), [1986] 2 SCR, the SCC expanded the concept
beyond the con sphere to allow for public interest challenges to admin action. Various criteria must be
met, however, before an individual or group is eligible for such standing, and even then, the grant of
public interest standing is discretionary. These criteria set out in Finlay and Canadian Council of
Churches v Canada, [1992] 1 SCR are as follows: 1) there must be a justicialbe issue; 2) there must be a
serious issue raised, and the applicant must have demonstrated genuine interest in the issue; and 3) public


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interest standing will be granted only if there is no other reasonable and effective manner of getting the
issues before the court.

    4. On what grounds may an administrative decision be challenged?

Appeals – where there is a right of appeal, the grounds of appeal will be set out in the appeal section.

JR – subsection 18.1(4) of the Federal Court Act sets out the grounds for JR of federal ADM‘s. These
include that the ADM (a) acted without jurisdiction, acted beyond jurisdiction or refused to exercise its
jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that
it was required by law to observe; (c) erred in law in making its decision or order, whether or not the error
appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material before it. Paragraphs (a), (b),
and (c) can all be classified as errors of law, with (a) and (c) focusing on substantive errors and (b)
focusing on procedural error. Paragraph (d) provides for review based on error of fact.

Common law JR provides for review on the basis of procedural errors of law, substantive errors of law,
errors of fact, and misuse of discretion. Until recently, the jurisprudence on JR provided a separate
approach for each of these four categories; now, however, the same analytical framework is used for all
substantive errors, whether involving law, fact or discretion, although procedural review is still treated as
a separate category.


EXAMPLES OF JR – Baker v Canada and Dr Q v College of Physicians and Surgeons of BC

Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 SCR (per L‘Heureux-Dube J)
Ratio:
      The duty of procedural fairness lies in every public authority making an administrative decision
          which is not of a legislative nature and which affects the rights, privileges and interests of an
          individual.
(There was a right of appeal pursuant to s. 82.1(1) of the Immigration Act 1985) Appellant was being
deported and was not a legal citizen, but she did have 4 children in Canada. There was an exception to
applying for permanent residency status from outside Canada on ―humanitarian and compassionate‖
considerations. She also claimed a deportation would not be in the best interests of her children. Her
application was denied without reasons, but notes were given to her, which displayed lack of
consideration of her children and mental health. She argued for procedural fairness, and claimed bias. She
also claimed the interests of the child should be a primary concern under the Convention of the Rights of
the Child, an international treaty which Canada was a party (but had not implemented in Canadian
domestic law). The first ground upon which the appellant challenges the decision made by Officer Caden
is the allegation that she was not accorded procedural fairness. Although the duty of fairness is flexible
and variable, and depends on an appreciation of the context of the particular statute and the rights
affected, it is helpful to review the criteria that should be used in determining what procedural rights the
duty of fairness requires in a given set of circumstances:

    1. Procedural fairness

Various factors determine the nature and extend of the common law duty of procedural fairness owed: 1)
importance of the decision to the individual affected (the greater the impact on the individual, the more
stringent procedural protections will be mandated – a high standard of justice is required when the right to
continue in one‘s profession or employment is at stake [Kane v Board of Governors of UBC 1980]); 2)
nature of the decision being made (Knight) (that is, the closeness of the admin process to the judicial

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process); 3) nature of the statutory scheme (greater procedural protections will be required when no
appeal procedure is provided within the statute, for example); 4) legitimate expectations of the person
challenging the decision (if the claimant has a LE that a certain procedure will be followed, this procedure
will be required by the duty of fairness – does not lead to substantive rights – if claimant has a LE that a
certain result will be reached, fairness may require more extensive rights than would otherwise be
accorded); 5) important weight and respect should be given to the choice of procedures made by the
agency itself (especially when statute gives the ADM the ability to choose its own procedures). These
principles (which are not exhaustive) help a court determine whether the procedures that were followed
respected the duty of fairness. The values underlying the duty of procedural fairness relate to the principle
that the individual affected should have the opportunity to present their case fully and fairly, and have
decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process,
appropriate to the statutory, institutional, and social context of the decision.

Was the failure to accord an oral hearing and give notice to Ms B or her children inconsistent with the
participatory rights required by the duty of fairness in these circumstances? Were those whose interests
were affected given a meaningful opportunity to present their case fully and fairly? Several factors
described above enter into the determination of the type of participatory rights the duty of procedural
fairness requires in the circumstances.
     The articles of the Convention (on the rights of the Child) and their wording did not give rise to a
         LE on the part of Ms B that when the decision on her H & C application was made, specific
         procedural rights above what would normally be required under the duty of fairness would be
         accorded.
     The nature of the decision - It asks whether the decision is more for the purpose of resolving
         dispute, protecting individual rights or some other judicial purpose rather than a decision that
         balances many interests and primarily considers policy.
     With regards to the statutory scheme, H & C decision‘s role was an exception to the general
         principles of Canadian Immigration law (more relaxed requirements under duty of fairness).
         However, no appeal procedure (more strict requirements). However, JR may be applied for with
         leave of the Federal Court.
     The decision has exceptional importance to the lives of those with an interest in the result (this
         leads to the content of the duty of fairness being more extensive).
     The statute accords considerable flexibility to the Minister to decide on the proper procedure, and
         officers do not usually conduct interviews. The institutional practices and choices made by the
         Minister are significant, though of course not determinative factors in the analysis.

Oral hearing - On balance, this case required more than minimal standard of a duty of fairness. The
claimant, whose interests were affected in a fundamental way, must have a meaningful opportunity to
present the various types of evidence relevant to their case and have it fully and fairly considered. But
note, an oral hearing isn‘t always required, and it is not a requirement in H & C decisions. Interviews are
not necessary either. Mr B, in her application, put forward her situation (written by a lawyer) regarding
her kids and their emotional dependence, and documentation in support of her application from a social
worker and from a psychiatrist. Thus, the lack of an oral hearing or notice of such a hearing did not
constitute a violation of the requirements of procedural fairness. The opportunity to put all the paperwork
together satisfied the requirements of the participatory rights required by the duty of fairness.

Reasons - the traditional position at common law has been that the duty of fairness does NOT require, as
a general rule, that reasons be provided for admin decisions (Northwestern Utilities Ltd. v Edmonton,
[1979] 1 SCR) (lead to increased cost and delay of ADM – see Osmond per Gibbs CJ). However, it is
now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require
the provision of a written explanation for a decision, especially decisions that have significance for the


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individual. This matter is one of those decisions. The notes by the officer, however, will constitute the
reasons nonetheless. Accepting documents such as these (the officer‘s hand written notes) as sufficient
reasons is part of the flexibility that is necessary when courts evaluate the requirements of the duty of
fairness with recognition of the day-to-day realities of admin agencies. People are entitled to fair
procedures and open decision-making, but it must be recognized that in the admin context, this
transparency may take place in various ways.

Bias - Procedural fairness also requires that decisions be made free from reasonable apprehension of bias,
by an impartial decision-maker (TEST: what would an informed person, viewing the matter realistically
and practically – and having thought the matter through – conclude? Would he think that it is more
likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly
(Committee for Justice & Liberty v Canada, [1978] 1 SCR)? On the facts, the officer‘s notes did NOT
indicate impartiality, and thus demonstrated a reasonable apprehension of bias. Note, that here the duty
applies to all immigration officers, whether they are subordinate reviewing officers of those who make the
final decision! Here, the subordinate officer plays an important part in the process, and if a person with
such a central role does not act impartially, the decision itself cannot be said to have been made in an
impartial manner. ―In my opinion, the well-informed member of the community would perceive bias
when reading Officer Lorenz‘s comments.‖ On the facts, the notes give the impression that the officer
was drawing conclusions based not on the evidence before him, but on the fact that Ms B was a single
mother with several children, and had been diagnosed with a psychiatric illness.


    2. Substantive review

Now then, what is the appropriate standard of review for decisions made under s. 114(2) and Regulation
2.1? The following 4 factors come from Pushpanathan:

Privative clause – s. 83(1) requires the certification of a ―serious question of general importance‖ by the
Federal Court, Trial Division before that decision may be appealed to the Court of Appeal. Pushpanathan
shows that the existence of this provision means there should be a lower level of deference on issues
related to the certified question.

Expertise of the decision-maker – here it is the Minister of Citizenship and Immigration or his or her
delegate. The fact that the formal decision-maker is the Minister is a factor militating in favour of
deference. The Minister has some expertise relative to courts in Immigration matters, particularly with
respect to when exemptions should be given from the requirements that normally apply.

Purpose of the provision and Act as a whole – the decision involves considerable choice on the part of
the Minister in determining when H & C considerations warrant an exemption from the requirements of
the Act. The purpose of the provision is to exempt applicants from requirements of the Act or Regulation.
This signals, too, greater deference. However, the decision relates directly to the rights and interests of an
individual in relation to the government, rather than balancing the interests of various constituencies or
mediating between them (this favours a stricter standard).

The nature of problem in question (relates to determination of law or facts?) – the decision about
whether to grant an H & C exemption involves a considerable appreciation of the facts of that person‘s
case, and is not one which involves the application or interpretation of definitive legal rules. Given the
highly discretionary and fact-based nature of this decision, this is a factor militating in favour of
deference.



                                                      5
These factors must be balanced to arrive at the appropriate standard of review. I conclude that
considerable deference should be accorded to immigration officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision-maker is a Minister, and the considerable discretion evidenced by the
statutory language. Yet the absence of a privative clause, the explicit contemplation of JR by the Federal
Court, Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should not be as deferential as
―patent unreasonableness.‖ I conclude, weighting all these factors, that the appropriate standard of review
is reasonableness simpliciter.

Remedy – The appeal is allowed and the decision of Officer Caden is set aside, with party-and-party costs
throughout. The matter will be returned to the Minister for redetermination by a different immigration
officer.

Is the public law duty of Procedural fairness owed to contractual public office holders? No
Dunsmuir v NB, [2008] – (para 1-16) D held a position under the Civil Service act and was an office
holder ―at pleasure‖ (Dept of Justice). D was terminated after several reprimands and cause for
termination was not alleged. D commenced the grievance process under s. 100.1 of the Public Service
Labour Relations Act (―PSLRA‖), alleging that the reasons for the employer‘s dissatisfaction were not
made known, that he did not receive a reasonable opportunity to respond to the concerns, that the
employer‘s actions in terminating him were without notice, due process or procedural fairness, and that
the length of the notice period was inadequate. The adjudicator‘s decision relied on Knight v. Indian Head
School Division No. 19, [1990] 1 S.C.R, for the relevant legal principles regarding the right of ―at
pleasure‖ office holders to procedural fairness. He declared that the termination was void ab initio and
ordered the appellant reinstated as of August 19, 2004, the date of dismissal. The Province of New
Brunswick applied for judicial review of the adjudicator‘s decision on numerous grounds. In particular, it
argued that the adjudicator had exceeded his jurisdiction in his preliminary ruling by holding that he was
authorized to determine whether the termination was in fact for cause. The Province further argued that
the adjudicator had acted incorrectly or unreasonably in deciding the procedural fairness issue. In the
view of the reviewing judge, the adjudicator did not have jurisdiction to inquire into the reasons for the
termination. His authority was limited to determining whether the notice period was reasonable. Having
found that the adjudicator had exceeded his jurisdiction, the reviewing judge quashed his preliminary
ruling. The appellant appealed the decision of the reviewing judge. The Court of Appeal, Robertson J.A.
writing, held that the proper standard with respect to the interpretation of the adjudicator‘s authority under
the PSLRA was reasonableness simpliciter and that the reviewing judge had erred in adopting the
correctness standard.

       Procedural fairness is a cornerstone of modern Canadian administrative law. Public
        decision makers are required to act fairly in coming to decisions that affect the rights,
        privileges or interests of an individual.
       This case raises the issue of the extent to which a duty of fairness applies to the dismissal of a
        public employee pursuant to a contract of employment. This conclusion was said to flow from
        this Court‘s decision in Knight, where it was held that the holder of an office ―at pleasure‖ was
        entitled to be given the reasons for his or her dismissal and an opportunity to be heard before
        being dismissed.
       While the majority opinion in Knight properly recognized the important place of a general duty of
        fairness in administrative law, in our opinion, it incorrectly analyzed the effects of a contract
        of employment on such a duty. Where a public employee is employed under a contract of
        employment, regardless of his or her status as a public office holder, the applicable law governing
        his or her dismissal is the law of contract, not general principles arising out of public law (Knight
        was wrong). This conclusion does not detract from the general duty of fairness owed by

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      administrative decision makers. Rather it acknowledges that in the specific context of dismissal
      from public employment, disputes should be viewed through the lens of contract law rather than
      public law. In Knight it was held that contrary to Lord Reid‘s holding in Ridge v. Baldwin,
      holders of an office ―at pleasure‖, were also entitled to procedural fairness before being
      dismissed. The fact that the director‘s written contract of employment specifically provided that
      he could be dismissed with three months‘ notice was held not to be enough to displace a public
      law duty to act fairly.
     In our view, the existence of a contract of employment, not the public employee‘s status as an
      office holder, is the crucial consideration. Where a public office holder is employed under a
      contract of employment the justifications for imposing a public law duty of fairness with respect
      to his or her dismissal lose much of their force.
     Where the relationship is contractual, it should be viewed as any other private law employment
       relationship regardless of an employee‘s status as an office holder. A public authority which
       dismisses an employee pursuant to a contract of employment should not be subject to any
       additional public law duty of fairness. Where the dismissal results in a breach of contract, the
       public employee will have access to ordinary contractual remedies.
     Note that a public law duty of fairness may still apply where there is no contract (judges, etc). In
       this case, the appellant was a contractual employee of the respondent in addition to being a
       public office holder. Section 20 of the Civil Service Act provided that, as a civil servant, he could
       only be dismissed in accordance with the ordinary rules of contract. In these circumstances it was
       unnecessary to consider any public law duty of procedural fairness. By imposing procedural
       fairness requirements on the respondent over and above its contractual obligations and ordering
       the full ―reinstatement‖ of the appellant, the adjudicator erred in his application of the duty of
       fairness and his decision was therefore correctly struck down by the Court of Queen‘s Bench.

PROCEDURAL ERRORS

A challenge to the procedures followed by an ADM involves a several stage analysis:

    1. Is this the kind of decision where a court should or can get involved to review procedures? This
       involves a consideration of whether the decision crosses the common law threshold or
       constitutional threshold for review of procedures.
    2. Even if the decision does not meet the threshold criteria, can the courts take account of the
       legitimate expectations (LE) of a party?
    3. If the decision is over the common law or constitutional threshold, what procedures should the
       ADM have followed, and did it do so? I.e. what were the procedural entitlements of the person
       affected by the ADM‘s decision, and were those entitlements met?
    4. If a procedural issue is raised, what standard of review will the court apply to the ADM‘s
       decision?
    5. What are the consequences of a breach of the required procedures?

Legislation, common law, and Charter - Before examining the thresholds developed at common law, and
more recently under the Charter, it is necessary to consider the relationship between these and the
enabling legislation. Let us assume that a person appearing before a particular board wants to be
represented by counsel. The first step in determining whether a right to counsel exists is to review the
enabling legislation. If the Act states that persons appearing before the board may be represented by
counsel, then the right exists. However, if the legislation is silent on the issue and the ADM refuses to
allow counsel, then one turns to the common law, to see if an appeal or judicial review on this point is
likely to be successful. That is, is the decision to be made by the ADM likely to cross the common law
threshold for procedural entitlements, and if so, is the right to counsel likely to be seen as one of the
procedural consequences following from that crossing on the threshold? It is also possible that the

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enabling legislation, rather than being silent on the issue, will specifically state that there is no right to
counsel. This would then oust the common law, and the only possible approach would be to ask if the
decision crosses the constitutional threshold, and if so, whether that would bring with it entitlement to
counsel.

    1. Common law and constitutional threshold for procedural review

By requiring that a threshold be crossed, the courts are asking: is this the kind of decision where a court
should get involved to review procedures? Until 1979, in Canada, the threshold issue depended on
whether an ADM was acting judicially or quasi-judicially, in which case, parties affected by the decision
had certain procedural rights referred to as ―natural justice.‖ If an ADM was not carrying out judicial or
quasi-judicial functions, courts would NOT impose any procedural requirements.

In 1979, the SCC in Nicholson v Haldimand – Norfolk Regional Board of Commissioners of Police,
[1979] 2 SCR (per Laskin CJC) lowered the threshold (agreed with Ridge v Baldwin’s 3 category
approach), and held that a duty of fairness could apply to decisions that previously would not have been
open to JR of procedures. N served as a constable for 15 months and was discharged by the Board without
being given an opportunity to make submission (Police Act 1970 - Regulations). There were procedural
protections in the legislation for an office removed after 18 months of service, but not before. He should
be treated fairly, not arbitrarily. The duty to act fairly has often been used by judges to denote an implied
procedural protection (protections not just for judicial and quasi-judicial decisions, but administrative as
well). Classification doesn‘t matter anymore since the decisions could equally have adverse consequences
for those affected. He should have been given reasons why he was terminated in writing or orally, no
matter how short his career may have been.

The content of the duty of fairness is discussed below. Courts list a number of factors, none of which
appears to be completely determinative, for consideration in deciding whether an admin decision is
subject to JR regarding the procedures followed by the ADM (or to rephrase it, in order to determine
whether the decision has crossed the threshold such that the ADM will be under a duty of fairness).
Courts have tended to focus their discussion on four factors:

           Is the decision legislative and general? If so, it is less likely to be over the threshold (see
            L’Heureux-Dube in Knight);
           Does the decision affect rights, interest, property, privileges or liberties? If yes, the decision is
            more likely to be over the threshold (the fact that a decision is administrative and affects these
            rights is sufficient to trigger the application of the duty of fairness (Cardinal v Director of
            Kent Institution [1985] 2 SCR – both parties agreed in Baker that a duty of procedural fairness
            applies to H & C decision). Cardinal involved the ―serous effect‖ of a decision at a hearing to
            ―disassociate‖ a prison for security purposes. ―there is...a duty of procedural fairness lying in
            every public authority making an admin decision which is not of a legislative nature and
            which affects the rights, privileges or interests of an individual.‖ The right to a fair hearing
            was necessary, regardless of whether it would change the minds of those holding it;

Le Dain J. in Cardinal v. Director of Kent Institution held (which was agreed in Knight) that the existence
of a general duty to act fairly will depend on ―(i) the nature of the decision to be made by the
administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect
of that decision on the individual‘s rights.‖
         Does the decision have serious consequences? If yes, then it is more likely to be over the
             threshold;



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           Is the decision final? The more final (or close to final) that a decision is, the more likely that it
            will be over the threshold

       Common law threshold

Legislative or general

The issue here is whether the ADM is making a fairly individualized decision, such that those individuals
most affected will have certain procedural entitlements, or whether the decision maker is actually making
law or broad general policy, in which case courts are less willing to impose procedural requirement (A
purely ministerial decision, on broad grounds of public policy, will typically afford the individual no
procedural protection, and any attack upon such a decision will have to be founded upon abuse of
discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial
supervision [per Dickson J in Martineau]).

AG (Canada) v Inuit Tapirisat of Canada, [1980] 2 SCR, a decision of the federal cabinet to uphold an
increase in telephone rates was characterized as legislative and so it did not cross the procedural threshold
(Can Radio-TV and Telecommunications Commission had power to regulate the rates of utilities,
including Bell Canada – s. 64(1) National Transportation Act). Because the threshold test had not been
met, the SCC would not review the procedures followed by Cabinet in coming to its decision. The SCC
gave several reasons for characterizing Cabinet‘s action in this case as legislative:
    1. Cabinet was carrying out a function previously belong to the legislature,
    2. there was no individualized dispute, and
    3. the challenging party was no more affected by the decision than any member of the general
         public.
The appeal initially went to Cabinet meeting. ―In my view, the essence of the principle of law here
operating is simply that in the exercise of a statutory power the Governor in Council, like any other
person or groups of persons, must keep within the law as laid down by Parliament or the Legislature.‖
Under s. 64 the Cabinet, as the executive branch of Government, was exercising the power delegated by
Parliament to determine the appropriate tariffs for the telephone services of Bell Canada. Given the
interpretation of 64(1), there is no need for the Governor in Council to give reasons for his decision, to
hold any kind of a hearing, or even to acknowledge the receipt of a petition. Note that the line between
legislative and administrative is not easy to draw (Estey J). This rule doesn‘t apply to investigative
bodies, but where the executive branch has been assigned a function performable in the past by the
Legislature itself and where the subject matter is not an individual concern or a right unique to the
petitioner or appellant, different considerations may be thought to arise...

     Similarly, it has been held that where a Minister is setting policy, rather than deciding on an
      individual case, the threshold has not been crossed.
     The mere fact that certain identifiable parties would be economically harmed by the policy
      decision does not change the nature of the decision (Canadian Association of Regulatd Importers
      v Canada (AG), [1994] 2 FCA).
     On the other hand, although passing a municipal bylaw is a legislative function, where a
      particular bylaw targets only one individual‘s property rights because of a longstanding dispute
      between that individual and the municipality, such a decision is no longer general and does cross
      the threshold for procedural entitlements (Homex Realty and Development Co Ltd v Villiage of
      Wyoming, [1989] 2 SCR). Without giving notice to Homex, the municipality made a bylaw under
      the Planning Act (the municipality and Homex previously quarrelled about the obligation to instal
      services in a subdivision owned by Homex).



                                                       9
     Where the by-laws in question directly affect the land or property of specified individuals, the
         courts have implied a common law right to be heard (the laws virtually only affects the lands of
         Homex).
     What this suggests is that where a bylaw or subordinate legislation of a more general character is
         being enacted or promulgated, whether by the governor in council, a minister, a municipality, a
         professional body, a regulatory agency, or tribunal, claims to procedural entitlements even by
         those affected immediately may be either diminished or eliminated.
     Where the impact of the decision being made is diffuse, affecting a broad spectrum of the public
         in a generally undifferentiated manner, claims to participatory rights will be hard to justify
         (unless the legislation contains some indication of public participation or obligations of
         consultation).
The following school closing case both illustrates the dilemmas of identifying which decisions are so
general as not to pass the threshold as well as the variations in status among those claiming participatory
rights in relation to certain kinds of ―policy‖ decisions...

Bezaire v Windsor Roman Catholic Separate School Board, (1992) Faced by a financial crisis, the
board decided to close 9 schools within its jurisdiction. Acting under statutory authority, the minister had
issued a procedural policy for board closure of schools and the board had produced its own policy.
Neither the ministerial policy nor the board‘s own policy was followed in this case (affected parents and
students didn‘t get a chance to be heard before the decision was made). The board‘s decision was subject
to JR under the Ontario Judicial Review Procedure Act. It is a question of mixed fact and law whether
the circumstances of any decision attract the Nicholson duty to act fairly. The guidelines and policies
premised on public consultation attract the duty in the circumstances of this case.
     The overall force of the provisions supports the premise that public consultation is a condition of
         a valid closing decision. The parents and children had a right to procedural fairness, and neither
         the fact that the board was in financial crisis nor that a brief consultation after the fact was held
         warrants the denial of procedural fairness.
Also see Canadian Association of Regulated Importers v Canada (1993) where the ministerial decision to
change the quota distribution system for the importation of hatching eggs and chicks was challenged
because it significantly affected historic importers (legislative decision in nature?!). In this case, the
decision challenged sets down rules which govern a very limited segment of the populace. The Minister
in deciding how to allocate import quota, was exercising a statutory power which had been delegated to
him. While the decision made may have been general, it was general only for a small segment of the
population and, in its application, it was very particular. There is no doubt they have established an
interest sufficient to found a claim for review of the decision taken by the Minister with respect to the
allocation of import quotas (but whether they have a ―right‖ is different from an interest. It is not
necessary to find that a ―right‖ exists in order to bring an application for JR). Some sort of general notice,
perhaps by newspaper advert, and an opportunity to submit representations was surely required before a
decision was taken (the fact they had an economic interest mattered here).
     HOWEVER the FCA disagreed with Reed J and dismissed the application. The decision by
         the Minister was a policy or legislative matter, with which Courts do not normally interfere.

Rights, interests, property, privileges, and liberties

This is an expansion from pre-Nicholson days, when the decision had to affect legal rights in order to
cross the threshold.
     Now, it is sufficient if the decision affects one‘s ―rights, interests, property, privileges, and
         liberties‖ (Martineau v Matsqui Inmate Disciplinary Board, [1980] 1 SCR).
Re Webb and Ontario Housing Corporation (1978) where Webb‘s lease was terminated due to
problems caused by Webb‘s children. Webb challenged the Ontario Housing Corporation‘s officials and
board of director‘s decision to terminate the lease. This place was to help low income residents with

                                                     10
subsidized rooms ($95 a month for this place in Toronto!). The deprivation of the benefit of subsidized
housing would have serious adverse effects on her and on her family. There is greatest need of protection
from arbitrary and unconscionable acts of public authorities for people who are economically and
socially disadvantaged.
     If no notice is given to a person who, as a result of an investigation by a public corporation in
         carrying out a public obligation, is in danger of losing an important benefit, and no opportunity is
         afforded to answer the ―case‖ against him, such a procedure, in my view, would be unfair
         (MacKinnon ACJO).
The appellant has succeeded in establishing, on the facts of this case, that there was an obligation on
OHC to treat her “fairly” in the conduct of its investigation and before terminating her lease. However,
the evidence discloses that she was treated “fairly‖ as that word is now understood in its application to
cases such as this Accordingly, the appeal must f ail and is dismissed without costs. So, this case shows
that holders of various forms of state assistance are entitled to some measure of procedural fairness
before assistance is cut off or removed.

Even a decision regarding an initial application for a benefit (such as a physician‘s application for hospital
privileges) might cross the threshold depending on the circumstances (Hutfiled v Board of Fort
Saskatchewan General Hospital District, [1986] AL QB). Hospitals Act gave the hospital board a general
responsibility for its affairs and a power to make bylaws. Bylaw s. 11 stated they needed to apply to the
College of Surgeons for its recommendation and to the chief of its medical staff and to its appointments
committee. The application was sent to the college, but rejected by the board. Dr wanted to be present
when they reviewed the application, but was refused. He also asked for reasons, which were denied. His
interests are more directly affected since he practices medicine in the district. Thus, if the appropriate
standards of procedural fairness have not been complied with by the medical staff committee in the first
place, or by the Board in the second place, certiorari is available to quash its decision (interests were
effected here when denied hospital privileges). A slur on his reputation would be case when denied those
privileges due to his credentials, training, suitability, etc.

Serious consequences

Nicholson identified the serious consequences for the individual (in this case, the loss of employment) as
one of the reasons for extending procedural entitlements beyond the previous threshold. Later cases
reiterate that an admin decision with only trivial consequences will not pass the procedural threshold
(Board of Education of the Indian Head School Division of Saskatchewan v Knight, [1990] SCR).

Preliminary (non-dispositive) v final decisions

While some cases have stated that preliminary decisions will not cross the threshold for procedural
entitlements, this is not an absolute rule.
     If there is proximity (i.e. the earlier stage is likely to have a significant influence on the final
        outcome) and potential exposure to harm, it may be possible to review the procedures followed at
        the preliminary stage (Re Abel and Advisory Review Board, (1979) On CA)).

This case involved the Advisory Review Board which was created by order in council under the Mental
Health Act to review patients after criminal offences that were not guilty by reason of insanity. The claim
for access to the files of the facility failed because this disclosure was clearly prohibited by the Act. The
difficult issue was disclosure from the board.
      If counsel for the patient seeks, as he must, to represent his client properly, one can well
         understand his desire, even his imperative need, to examine such reports (by officers – which will
         have close proximity between the investigation and the decision).


                                                     11
It follows that in my opinion the application against the ARB must be granted, the decision of the
Chairman in refusing to order production of the reports of the officer in charge quashed, and the matter
remitted to the Board for reconsideration...It didn‘t matter that the reports were non-binding. Note that
Abel is the exception!

See Dairy Producers’ Co’operative Ltd v Saskatchewan (HR Com), [1994] where, following a complaint
of workplace sexual harassment, the commission had appointed an officer to investigate and provide the
Commission with a report on whether there was a sufficient basis for recommending the appointment of a
board of inquiry to adjudicate on the complaints. The process of investigation was provided for in detail
in regulations promulgated under the Act. The company application was based on allegation of breach of
the rules of procedural fairness during the process leading up the striking of the board of inquiry. The
investigator and the Commission acted appropriately throughout. There has been no breach of procedural
fairness by either. Where a complaint that there has been a violation of human rights code proceeds to a
board of inquiry or tribunal, there is always a full hearing. Nonetheless there is a duty on HRs
commissions to act in a procedurally fair manner before taking that step or recommending that a board of
inquiry or tribunal be struck. However;
      a court will not review for procedure at a preliminary investigation, where information is simply
         being gathered, and where any determination of rights will occur only after parties have had an
         opportunity to make their case (Irvine v Canada (Restrictive Trade Practices Commission),
         [1987] 1 SCR) (an inquiry was conducted by a hearing officer appointed by the Commission, a
         report to the Commission was then made, it was then decided whether a full-blown public inquiry
         was indicated).
Rulings by the hearing officer limited the right of witnesses and those under investigation to be present
when other witnesses were being examined and also restricted cross-examination rights. These were
challenged. The commission‘s role is largely performed in the second stage and consists of processing of
information gleaned by the Director in the exercise of his investigatory function. If the individual is
prosecuted, the evidence at hearing can‘t be used against him. The Director‘s role is purely investigatory
and entirely preliminary.
      Where the process is in embryonic form engaged in the gathering of the raw material for
         further consideration, the inclination of the courts is away from intervention. In this case, the
         hearing officer even allowed all the parties to be represented by counsel who could object to
         improper questioning. The court also noted that crimes of this nature (economic) are delicate,
         hard, and require investigatory access.

Relationship between the ADM and the individual – here we should note the SCC‘s recent narrowing of
an important holding going to the threshold of procedural fairness in Knight. In issue here was the
decision of a Board of Education to dismiss its director of education. In deciding the case, the SCC in its
common law threshold analysis took note of a further factor – ―the relationship existing between the
ADM and the individual‖ – here, a public authority and its employee. In analyzing the aspects of this
relationship relevant to the threshold of procedural fairness, the SCC adopted the principle that public
office holders (roughly, those whose office and/or duties are established under statute) are owed
procedural fairness from their employers when subject to dismissal.
     However, this is wrong now: the majority in Dunsmuir took account of ―the nature of the
         employment relationship between the public employee and the public employer,‖ but in doing so,
         found that the presence of an employment contract had removed any admin law procedural
         protections. Therefore, it held that any dispute attendant to Dunsmuir‘s dismissal ―should be
         viewed through the lens of contract law rather than public law.‖




                                                    12
        Constitutional threshold for procedural review

If the enabling legislation precludes the procedural entitlement being sought, this ousts the common law.
Therefore, one must ask whether the decision is over the Charter threshold (for both provincial and
federal ADM‘s) or over the Bill of Rights threshold (for federal ADM‘s).

Charter – it applies, of course to both the federal government and the provinces. But note that s. 32(1)
(applies to the Par of Canada and the legislatures), which restricts the Charter‘s application in admin
decisions to bodies or activities that can be brought within the concept of ―government.‖
     The leading case is McKinney v University of Guelph, [1990] 3 SCR where the majority held
         that, despite their statutory status, universities were not government and therefore not generally
         amendable to the Charter even with respect to actions and decisions that would expose them to JR
         (charter also doesn‘t apply to corporations).
     However, in Harvey v Law Society (Newfoundland) (1992) it was held that the charter reached
         the disciplinary functions of the Law Society of Newfoundland!
     Also note Eldridge v BC, [1997] 3 SCR where the Charter applied to translation facilities for
         hearing impaired patients in hospitals. Thus, a statutory authority that is not in general
         government (hospital) becomes subject to the Charter when charged with responsibility for the
         effectuation of government programs.
On procedural review, the most frequently argued section of the Charter is section 7. If the ADM‘s
decision affects life, liberty, or security of the person, the Charter threshold has been passed. As
with the common law threshold, the applicant need not show that legal rights are affected: an impact on
interests or privileges would also be sufficient (Singh v Minister of Employment and Immigration,
[1985] 1 SCR). The SCC has indicated that many if not all ADM‘s will be subject to the Charter,
and that s. 7 of the Charter extends to regulate state action beyond the criminal or custodial setting.
     However, the s. 7 guarantees of ―life, liberty and security of the person‖ will be engaged
         only rarely in administrative proceedings. The s. 7 threshold requires state action that
         threatens the subject‘s life, liberty, or physical integrity, or threatens to have ―a serious and
         profound effect‖ on the subject‘s psychological integrity or to interfere with the subject‘s
         ability to make decisions of fundamental personal importance (Blencoe v BC (Human Rights
         Commission), [2000] 2 SCR).
Courts have generally held that decisions which have chiefly economic consequences (for instance a
refusal to grant certain social benefits) do not affect ―life, liberty, or security of the person,‖ and so are not
over the s. 7 threshold.
     If a decision does affect life, liberty or security of the person, then in accordance with the
         wording of s. 7, the procedures followed by the ADM must be in keeping with the principles of
         fundamental justice. The content of these principles is discussed below. Any failure to meet the
         principles of fundamental justice would have to be justified under s. 1 of the Charter.

Bill of Rights – Its area of applicability is confined to the federal domain (5(2) and (3)). Although it‘s a
regular statute enacted by a simple majority, it declares primacy over other legislation unless the
legislation expressly override the Bill of Rights. It applies to the ―laws of Canada‖ and ―any law in force
in Canada,‖ which probably also means its broad enough to apply to decisions and actions taken by those
deriving their powers from federal law. The Bill of Rights may impose certain procedural requirements on
federal ADM‘s, if the decision in question affects life, liberty, security of the person, or enjoyment of
property (s. 1(a)) or determines rights and obligations (s. 2(e)). As with the common law and Charter
thresholds, ―rights‖ has been broadly construed to cover more than strict legal entitlements (Singh). If a
decision passes the s. 1(a) threshold, then the ADM must act in accordance with ―due process of law‖ and
if it passes the 2(e) threshold, parties are entitled to ―a hearing in accordance with the principles of
fundamental justice.


                                                       13
Bill of Rights

For the purposes of admin law, the principal procedural protections are found in 1(a) and 2(e):
     1(a) - there is no discrimination based on race, national origin, colour, religion or sex of the right
        of the individual to life, liberty, security of the person and enjoyment of property, and the right
        not to be deprived thereof except by due process of law and;
     2(e) no law shall be construed so as to deprive a person of the right to a fair hearing in accordance
        with the principles of fundamental justice for the determination of his rights and obligations.

Both now can render inoperative federal statutes that do not provide the protections of ―due process of
law‖ and ―fundamental justice.‖ Note the differences between these provisions and s. 7 of the Charter
(everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice). There are three main differences
between the Bill and Charter s. 7: 1) the words “individual” and “person” are used in the Bill as
opposed to “everyone” in the Charter, 2) the Bill includes “enjoyment of property” in 1(a)), and 3) the
Bill includes “determination of rights and obligations” in 2(e). There is also no s. 1 equivalent in the
Bill.
      Firstly, it was held by the SCC in Irwin Toy (1989) that ―everyone‖ in the Charter does not refer
         to corporations. This is not necessarily so with the Bill of rights. Under the federal Interpretations
         Act, ―persons‖ includes corporations unless the context otherwise requires (so 2(e) might apply to
         corporations). However, it becomes complex because in R v Wholesale Travel Ground [1991] 3
         SCR it was held that a corporation (at least in the context of a defence to a criminal charge) can
         argue that a legislative provision is invalid because it would violate section 7 in its application to
         an individual!
      The inclusion of property in 1(a) is perhaps the most significant difference in terms of
         coverage (although 1(a) isn‘t often invoked). 1(a) was invoked in Ontario Inc v Canada (Minister
         of National Revenue) (1994).
      Although the Bill doesn‘t contain something similar to s. 1 of the Charter, the Quebec CA in Air
         Canada c Canada (Procureure generale) notes that the principles of fundamental justice for the
         purposes of s. 2(e), when used by a court, should engage in a s. 1 style balancing process akin to
         that in Oakes.
      Although ―rights and obligations‖ in 2(e) used to be interpreted narrowly (taking away strict legal
         rights), this all changed in Singh v Canada. [1985] SCR. Here, 3 members of the Court held that
         immigration authorities came within s. 2(e) when deciding upon a convention refugee claim. This
         involved ―determining‖ whether the claimant had a statutory ―right‖ to remain in Canada.

National Anti-Poverty Organization v Canada (AG), [1990] (FCA) Case involved the procedural
obligations of the governor in council in the context of ―cabinet appeals‖ from the decisions and order of
regulatory agencies. Muldoon J Held that an earlier SCC case (Inuit Tapirisat) was decided per incuriam
because it had not been confronted by any submission as to the applicability of s. 2(e) of the Bill. He held
that the Cabinet in such cases was determining the ―rights and obligations‖ of subscribers to the Bell
Canada system and was therefore bound to act in accordance with the ―principles of fundamental justice.‖
The AG appealed to the FCA. In the end, no ―right‖ or ―obligations‖ unique to them were determined by
that decision; such right, if any, flowed to all of Bell Canada‘s subscribers regardless of whether they
participated or not.

Authorson v Canada (AG) (2003) 2 SCR In this case pensions and other benefits were received by
disabled veterans. These funds were rarely invested or credited with interest until 1990, when the DVA
began paying interest on the accounts. But Parliament chose to limit the Crown‘s liability for past interest


                                                      14
by enacting s. 5.1(4) of the Department of Veterans Affairs Act which provides that no claim shall be
made after the coming into force of the provision for or on account of interest on moneys held or
administered by the Minister during any period prior to January 1, 1990 pursuant to any of the three
relevant statutes.
     The class sued the Crown, alleging breach of fiduciary duty and claiming that the s. 5.1(4) bar
        was inoperative under the Canadian Bill of Rights, because it was inconsistent with the right not
        to be deprived of the enjoyment of property except by due process of law (s. 1(a)) and the right to
        a fair hearing in accordance with the principles of fundamental justice for the determination of
        one‘s rights and obligations (s. 2(e)).
HELD: Section 5.1(4) of the Act is not inconsistent with either s. 1(a) or s. 2(e) of the Bill of Rights and
the veterans were lawfully denied interest on their pension and other benefits...
    1. The due process protections in s. 1(a) of the Bill of Rights do not require that the veterans receive
        notice and a hearing before Parliament prior to the passage of expropriative legislation.
        Long-standing parliamentary tradition has never required that procedure, and due process
        protections cannot interfere with the right of the legislative branch to determine its own procedure
        (Pickin). Such a power to interfere would effectively amend the Canadian Constitution.
    2. While substantive rights may stem from due process, the Bill of Rights does not protect against
        the expropriation of property by the passage of unambiguous legislation. Parliament has the right
        to expropriate property, even without compensation, if it has made its intention clear and, in
        s. 5.1(4), Parliament‘s expropriative intent is clear and unambiguous.
    3. Section 2(e) of the Bill of Rights applies only to guarantee the fundamental justice of proceedings
        before any tribunal or administrative body that determines individual rights and obligations. It
        does not impose on Parliament the duty to provide a hearing before the enactment of legislation.

Charter

Singh [1984] SCR
      Convention refugee – well founded fear of persecution in the country he is fleeing
The potential impact of s. 7 on admin processes was first considered by the SCC in 1984 in Singh. This
was a convention refugee case (the Minister, acting on the advice of the Refugee Status Advisory
Committee determined that they were not convention refugees). They applied to an Immigration Appeal
Board for redetermination of their status and were denied an oral hearing. The appellants applied to the
FCA to review of the board‘s decision alleging that the statutory scheme infringed s. 7 of the Charter.
They considered the scheme in reference to s. 2(e) as well. They allege that the procedural mechanisms
set out in the Immigration Act (as opposed to the application of those procedures to their particular case)
have deprived them of their rights under the Charter.
      If the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there
         is no basis for resort to the Charter. The issue may be resolved on other grounds.

    1. Are the appellants entitled to the protection of s. 7 of the Charter?
The procedures for determination of whether an individual is a Convention refugee and for
redetermination of claims by the Immigration Appeal Board are set out in ss. 45 to 48 and 70 to 71. It is
clear from s. 45(4) that the Act does not envisage an opportunity for the refugee claimant to be heard
other than through his claim and the transcript of his examination under oath. There is no basis for
suggesting that the procedures set out in the Act were not followed correctly in the adjudication of these
individuals‘ claims...
     Accordingly, if the appellants are to succeed, I believe that it must be on the basis that the Charter
         requires the Court to override Parliament‘s decision to exclude the kind of procedural fairness
         sought by the appellant.
A convention refugee is a person who has a well-founded fear of persecution in the country from which
he is fleeing. To deprive him of the avenues open to him under the Act to escape from that fear of

                                                    15
persecution must, at the least, impair his right to life, liberty and security of the person...The
question is whether such impairment constitutes a ―deprivation‖ under s. 7. Given the potential
consequences for the appellants of a denial of the convention status, it seems to me unthinkable that the
Charter would not apply to entitle them to fundamental justice in the adjudication of their status. Thus, the
rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7. It is
necessary therefore to consider whether the procedures for the determination of refugee status as set out in
the Act accord with fundamental justice.

     2. Is FJ denied by the procedures for the determination of Convention Refugee Status set out in the
         Act?
Do the procedures in the Act provide for an adequate opportunity to state his case and know the case he
has to meet?
      An oral hearing is required here.
      However, written submission may be an adequate substitute for an oral hearing in appropriate
         circumstances (note when credibility in involved, fundamental justice requires an oral hearing).
The concern with the scheme doesn‘t seem to be a lack of oral hearing, but an inability for the claimant to
state his case and know the case he has to meet. The applicant can submit whatever material he wants to
the Board, but HE has to establish to the Board, on the BOP, that the Minister was wrong. Moreover, he
must do this without any knowledge of the Minster‘s case beyond the rudimentary reasons which the
Minister has decided to give him in rejecting his claim (impossible for the Judge to reconcile this with the
requirement of ―fundamental justice‖ in s. 7).
      Thus, I am of the view that the procedures for determination of refugee status claims as set out in
         the Immigration Act do NOT accord refugee claimants fundamental justice in the adjudication of
         those claims and are thus incompatible with s. 7 of the Charter. The third stage is to see if the
         shortcomings of these procedures can be saved by s. 1.

    3. Can the procedures be saved under s. 1 of the Charter?
The issue in the present case is not simply whether the procedures set out in the Act for the adjudication
of refugee claims are reasonable, it is whether it is reasonable to deprive the appellants the right to life,
liberty, and security of the person by adopting a system for the adjudication of refugee status claims
which does not accord with the principles of fundamental justice (administrative convenience was the
only argument put forward, which the judge didn‘t feel was good justification).
     Admin convenience (saves time, costs, etc) does not override the need to adhere to principles of
         procedural fairness and natural justice. The appeal is allowed, decisions of Immigration Appeal
         Board set aside, and applications for determination of refugee status remanded to the Board.

Chiarelli v Canada (Min of Justice), [1992] 1 SCR
      Procedures did not violate the principles of FJ
here a permanent resident of Canada was deported because of a conviction for an office that carried the
possibility of a term of imprisonment for 5 or more years (Immigration Act). There was a right to appeal
to the Immigration Appeal Board for any error of law or fact or on the basis that ―having regard to all
circumstances of the case,‖ the appellant should be allowed to remain in Canada. Before the appeal could
be heard, min of employment and immigration made a report under s. 82.1(2) of the Act to the Security
Intelligence Review Committee (if he stayed, he‘d be a threat due to organized crime). The hearing of the
appeal was therefore postponed pending the outcome of this other process. In conducting the proceedings,
SIRC was subject to s. 48(2) of the Can Security Intelligence Service Act, which provided that the person
was entitled to a hearing, but could not be present during representations (or comment on them). So, he
and his council were excluded when RCMP gave evidence about his organized crime activity. Ultimately,
the SIRC recommended to the minister to issue the certificate under 83(1) of the Act. The appeal board
was prevented from looking into whether he‘d be allowed to stay in Canada. C then raised some


                                                      16
constitutional questions, and the board stated a number of con questions to the FCA under s. 28(4)
Federal Court Act.
    The Federal Court held that reliance on the certificate would violate the accused‘s rights under s.
        7 of the Charter, and that violation was not justified by s. 1. This is concerned solely with the
        issue of whether the proceedings before SIRC or the review Committee comported with the
        principles of fundamental justice.
    In the hearings conducted by the Review Committee, an individual has an interest in a fair
        procedure; however the state has a considerable interest in conducting national security and
        criminal intelligence investigations and in protecting police courses. Although the first day of the
        hearing was conducted in camera, the respondent was provided was a summary of the evidence
        presented. In my view, these various documents gave the respondent sufficient information to
        know the substance of the allegations against him, and to be able to respond.
    Having regard to the procedures available and the competing interests at play, I conclude that
        the procedure followed by the Review Committee did not violate the principles of fundamental
        justice (he was also able to cross-examine the witnesses who testified in camera).

Life, liberty and security of the person

To the extent that admin processes have similar ―liberty‖ dimensions to those typical of the criminal law
context, the mode of analysis and outcomes have been relatively predictable. We think here of cases
involving prison discipline, parole granting and revocation, as well as other custodial regimes such as
compulsory detention of the insane. Far more difficult are questions about the extent to which ―life,
liberty and security of the person‖ has any application to regimes with economic consequences. Note
Morgentaler where therapeutic abortion provisions of the CC were struck down on the basis of s. 7 and
the threat they posed to women‘s security of the person interests. What is the scope of s. 7? Always note
the two part test here for s. 7:

    1. Was there a deprivation of the applicant‘s right to life, liberty or security of the person?
    2. If so, was the alleged deprivation in accordance with the principles of fundamental justice?
       (Blencoe v BC, [2000])

Wilson v BC (Medical Services Commission) (1988) (BC CA)
      Geographic restriction do violate one‘s s. 7 rights
In 1983 the Commission established a scheme for limiting the numbers of practicing doctors and
restricting the geographic areas of their practices (to control costs of health services and ensure the
appropriate allocation of doctors throughout the province) (this legislation and regulations were
challenged). Doctors were required to have a ―practitioner number‖ in order to bill for their services, and
there was agreement throughout that having a number was essential to practice. Applications for the
numbers were made to the commission. The scheme was challenged based on s. 7.
      The question: is ―liberty‖ in s. 7 broad enough to encompass the opportunity to a qualified and
         licensed doctor to practice medicine in BC without restraint as to place, time or purpose, even
         though there is an incidental economic component to the right being asserted.
S. 7 does not extend to protect property or pure economic rights. It may embrace individual freedom of
movement, including the right to choose one‘s occupation and where to pursue it. The appellants‘ case is
that the government has deprived them of the opportunity to pursue their profession, or has restricted their
mobility in such a way as to deprive them of ―liberty.‖ The number may determine their geographic
location and restrict their mobility (so, the issue isn‘t purely economic!). It‘s a denial of their right to
practice their profession in BC. In our view, mobility is a fundamental right, and the right to ―liberty‖
bears directly on the right to free movement. Thus, the geographic restrictions imposed by
government on the right to practice medicine in BC constitute a violation of the right to liberty
protected by s. 7 UNLESS that right has been removed in accordance with the principles of

                                                     17
fundamental justice, or unless the deprivation can be justified under s. 1. The appellants submit that
the legislation and regulatory scheme are unfair in both procedure and substance (no right to hearing, no
obligation to give reasons, etc). In our opinion, the scheme offends the principles of fundamental justice.
It leaves scope for arbitrary conduct.

Blencoe v BC (HR Commission), [2000] 2 SCR
     State-caused delay could violate to liberty and security of the person
A minister was accused of sexual harassment. Two complaints after his dismissal came out and were filed
with the BC HR Commission. After the Commission‘s investigation, hearings were scheduled before the
BC HR Tribunal; over 30 months after the initial complaints were filed! Media attention was intense.
The respondent suffered from server depression. He commenced JR to have the complaints stayed – he
claimed that the Commission had lost jurisdiction due to unreasonable delay in processing the complaints.
This was dismissed by the SC of BC but a majority of the CA allowed his appeal (proceedings were then
stayed). The majority found that he had been deprived of his right under s. 7 of the Charter that was NOT
in accordance with the principles of fundamental justice.

     1. Does the Charter apply to the actions of the BC HR Commission?
It‘s clear that both the federal Par and Legislatures are bound by the Charter. However, one threshold
issue which has been raised is whether the Commission and Tribunal are agents of the government
pursuant to s. 32 of the Charter. They are. Bodies exercising statutory authority are bound by the
Charter even though they may be independent of government (Eldridge). The Commission in this
case cannot therefore escape Charter scrutiny merely because it is not part of government or controlled by
government. Like in Eldridge, the Commission is both implementing a specific government program and
exercising powers of statutory compulsion.

     2. Have the Respondent’s s. 7 right to liberty and security of the person been violated by state-
         caused delay in HR proceedings?
Section 7 can extend beyond the sphere of criminal law (NB (Minister of Health and Community Service)
v G(J), [1999] 3 SCR). Has the s. 7 threshold requirements been met? If so, has the respondent
demonstrated a breach of his s. 7 rights?
      Liberty doesn‘t merely mean physical restraint now; it is also engaged where state compulsions or
         prohibitions affect important and fundamental life choices.
      In this context, security of the person has been held to protect both the physical and psychological
         integrity of the individual. Not all state interference with an individual‘s psychological integrity
         will engage s. 7. It has to be ―serious state-imposed psychological stress‖ (Dickson CJ in
         Morgentaler). The harm must result in actions from the state, and the psychological prejudice
         must be serious.
It‘s hard to say the state caused the harm here (delay), since it probably came from the publicity, but he
found a sufficient nexus between the state caused delay and the prejudice to Mr B. Now then, what is the
quality of interference? Is the state action serious enough to trigger security of the person? Respect for a
person‘s reputation, like respect for dignity of the person, is a value that underlies the Charter. The right
to security of the person is not triggered by the ordinary stressed attached with government action. The
right to be free from stigma associated with a HR complaint does NOT fall within this narrow sphere.
      To accept that the prejudice suffered by the respondent in this case amounts to state interference
         with his security of the person would be to stretch the meaning of this right.
      Thus, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to
         liberty or security of the person.
      My conclusion that the respondent is unable to cross the first threshold of the s. 7 Charter
         analysis in the circumstances of this case should not be construed as a holding that state-
         caused delays in HR proceedings can never trigger an individual‘s s. 7 rights. Because of my
         conclusion that there was no deprivation of the R‘s right to liberty or security of the person, I

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        need not proceed to the second stage of the analysis to determine whether the alleged deprivation
        was in accordance with the principles of fundamental justice

     3. Was the R entitled to a remedy pursuant to Admin law principles?
      While I have concluded that the R is not entitled to a remedy under the Charter, I must still
         address the issue of whether the R is entitled to a remedy under principles of admin law.
Did the delay amount to a denial of natural justice? In the admin law context, there must be proof of
significant prejudice which results from an unacceptable delay. Natural justice and the duty of fairness are
part of every admin proceeding. When delay impairs a party‘s ability to answer the complaint against him
(memories have faded, witnesses dead, evidence lost, etc) then it may be invoked to impugn the validity
of the admin proceedings and provide a remedy. On the facts, the R was not prejudiced in an evidentiary
sense (the failure to disclose some information wasn‘t an obvious breach of fairness, neither was the fact
that a few witnesses died). Does the delay constitute a breach of procedural fairness? Where inordinate
delay has directly caused significant psychological harm to a person, or attached a stigma to a person‘s
reputation, such that the HR system would be brought into disrepute, such prejudice may be sufficient to
constitute an abuse of process. ―Abuse of process‖ has been characterized in the jurisprudence as a
process tainted to such a degree that it amounts to one of the clearest of cases (applies in admin
proceedings as well). They must be unfair to the point that they are contrary to the interest of justice (will
be very rare).
      To constitute a breach of the duty of fairness, the delay must have been unreasonable or
         inordinate (oppressive so that it tainted the proceedings).
      I am not convinced that the delay in this case was ―inordinate.‖ If R made a concession that
         there was enough evidence for a hearing (without investigation), the delay would have been
         reduced by some months. Despite the delay, communications were ongoing. The delay here was
         not so inordinate or inexcusable as to amount to an abuse of process.

    2. Legitimate expectations

Baker: (leading case on Legitimate Expectations) the doctrine of legitimate expectation is a part of the
rules of procedural fairness and may affect content by:
    - Requiring government to follow expected procedure
    - Creating more extensive procedural rights

In certain circumstances, procedures will be required by reason of expectations generated in an affected
person and not be entirely contingent on a detached analysis of the statutory power in question.
      If a decision does not meet the criteria for review of procedures (that is to say, it does not cross
         the procedural threshold), courts may still impose certain procedures on the ADM where a party
         had a LE of procedural rights, based on a promise by a public official, or the past practice of the
         ADM (Old St Boniface Residents Association Inc v Winnipeg (City), [1990] 2 SCR).
In this case, the argument was that there was an expectation on the part of the residents‘ association that
there would be no more development of the kind in issue until such time as there was a new city plan in
place, a process in which the association expected to participate. The court held that such a claim could
not be made in the face of all the other procedural protections provided for in the relevant legislation. It
has, however, been emphasized that this doctrine can at most create procedural rights, NOT
substantive rights (Reference Re Canada Assistance Plan, [1991] 2 SCR). This case involved the
Canada Assistance Plan (federal statute) which authorized the government of Canada to enter into
agreements with the provinces for sharing the costs of provincial social assistance and welfare programs.
As part of a reduction policy, the federal government introduced a bill that limited the increase in its
financial contribution to BC, AL, and ON.
      One of the questions referred by BC to the courts was whether the government was prevented
         from introducing the bill by virtue of the LE that amendments would only be made to the

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        agreements by consent. If the doctrine of LE required consent, and not merely consultation, then
        it would be the source of substantive rights (which can‘t be), in this case, a substantive right to
        veto proposed federal legislation. Parliamentary government would be paralyzed if the doctrine of
        LE could be applied to prevent the government from introducing legislation in Parliament.
It would also fetter the freedom of subsequent governments! So, LE only generates a claim to hearing
entitlements, not substantive outcomes. Moreover, the SCC stated that the doctrine cannot ground
procedural fairness obligations on the part of ―a body exercising purely legislative functions,‖ nor in the
case of ―a purely ministerial decision, made on broad grounds of public policy (ibid).

Furey v Roman Catholic School Board for Conception Bay Centre (1991)
The board decided to close an elementary school under its jurisdiction. In 1988 the Dept of Education had
issued guidelines to be followed in the case of planned consolidations and closing. These guidelines
established a process of consultation and timeframes for various steps in the decision-making process.
Those guidelines had not been observed by the board in this instance. The court is required, in the absence
of specific legislation, to determine whether the common law doctrines as developed by the courts with
respect to procedural fairness permit this court to find that its absence is sufficient ground for getting
aside a decision to close a school.
     This was an admin decision, and NOT legislative. In this case, there was a duty of procedural
         fairness, and JR is available.
The 1989 procedure, and subsequent communications, could not do otherwise than raise in the minds of
the parents the expectation that there would be procedural fairness in future decision making with respect
to school closure. Since procedural fairness was found, the court has jurisdiction to grant an order in the
nature of certiorari, setting aside the decision to close the school. The matter is remitted back for
reconsideration. HOWEVER, the decision was reversed in the CA (the court was unable to find any
evidence that those deponents had believed that the past practice would be followed in this instance).

Mount Sinai Hospital v Quebec (Minister of Health and Social Services), [2001] 2 SCR
The hospital was in violation of its licence (changed from long-term care facility to short and medium-
term care facility).
     Discussions took place with the minister and it was agreed that, if the hospital relocated, its
        licence would be regularized.
The hospital relocated (through great expense). New minister was appointed who didn‘t follow through.
The hospital sought mandamus to compel the minister to issue the revised licence. The minister had
already made a decision conditional on the hospital relocating and this was a decision that the current
minister did not have any basis for overturning. The doctrine of LE looks at the conduct of the public
authority in the exercise by the public that power including:
     established practices,
     conduct, or
     Representations that can be characterized as clear, unambiguous and unqualified.
The expectations must not conflict with the public authority‘s statutory remit. BUT, if the court is to give
substantive relief, more demanding conditions precedent must be fulfilled than are presently required by
the doctrine of LE (in some cases it is, however, difficult to distinguish the procedural from the
substantive). The minister‘s decision will be set aside through the ordinary rules of procedural fairness.

    3. Content of procedural fairness
     What are the general principles or ways of thinking that should govern choice of procedures at a
       hearing?

As the threshold for the assertion of procedural claims has been lowered, the issue of procedural content
has become that much more prominent and perhaps controversial. Do the principles of fundamental


                                                     20
justice call for greater or different procedures than the common law rules of natural justice or procedural
fairness?
      If the decision is over the common law or constitutional threshold, what procedures should the
         ADM have followed?
      What were the procedural entitlements of the person affected by the ADM‘s decision, and were
         those entitlements met?
               Just because a decision is found to be ―over the threshold‖ and subject to a duty of
                  fairness (if we are dealing with the common law threshold) or subject to the principles of
                  fundamental justice (s. 7 Charter threshold), this does NOT mean that the applicant will
                  automatically get whatever procedural entitlements are being argued for. The courts have
                  held that the ―content‖ of the duty of fairness and the principles of fundamental justice is
                  flexible, spanning a spectrum of procedures, and is dependent on context.

Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR
     Content of procedural fairness required for fundamental justice
The Minster issued a certificate under s. 53(1)(b) of the Immigration Act (S was deemed to be a danger to
the security of Canada). This certificate was a prelude to his deportation order. S made written
submissions and filed info with the Minister, but he did not have a copy of the immigration officer‘s
report, on which basis the certificate was issued and was therefore not able to respond to the report in
writing or orally. Are the procedures for deportation set out in the Act constitutionally valid (s. 7)? Judge
found it first helpful to look at common law approach to procedural fairness articulated in Baker. In
Singh, Wilson J recognized that
     the principles of fundamental justice demand, at a minimum, compliance with the common law
         requirements of procedural fairness. For procedural rights, the common law doctrine
         summarized in Baker properly recognizes the ingredients of fundamental justice:
    1. The decision here is based on discretion and weighing risks. Thus, the nature of the decision
         militates neither in favour of strong or weak procedural safeguards;
    2. The nature of the statutory scheme suggests the need for strong procedural safeguards. There is
         very little protection in s. 53(1)(b) compared to s. 40.1 of the Act. L‘Heureux Dube J stated in
         Baker that greater procedural protections will be required when no appeal procedural is provided
         within the statute;
    3. With respect to the importance of the right affected, an interest in remaining in Canada is highly
         significant (he may also face torture back in Sri Lanka)! The greater the effect on the life of the
         individual by the decision, the greater the need for procedural protections to meet the common
         law duty of fairness and the requirements of fundamental justice under s.7;
    4. Finally, consider the choice of procedures made by the agency. In this case, the Minster is free
         under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b)
         decision. Because she evaluates future risks and security concerns, this leads to discretion. At the
         same time, deference must be reconciled with the elevated level of procedural protections
         mandated by the serious situation of refugees (especially those who face torture if deported).
         On Balance: Weighing these factors, we are of the opinion that procedural protections required
         by s. 7 in this case do not extend to the level of requiring the Min to conduct a full oral hearing or
         a complete judicial process. However, they require more than the procedure required by the Act
         under s. 53(1)(b) (namely, none!). Thus, procedural protections required are more than what S
         received.

When facing deportation:
   They must be informed of the case to be met. Subject to security, this means that material on
       which the Min is basing her decision must be provided to the individual.



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       Furthermore, fundamental justice required an opportunity be provided to respond to the case
        presented by the Min.
     Fundamental justice requires that written submissions be accepted from the subject of the order
        after the subject has been provided with an opportunity to examine the material being used
        against him or her.
     He must also be able to challenge the information of the minister. The refugee should be
        permitted to present evidence (evidence to rebut that he is a risk to Canada and to rebut that he
        won‘t be tortured by the government).
The procedural protections need not be invoked in every case, as not every case of deportation will
involve a risk to an individual‘s rights to be protected from torture. The refugee must establish a
threshold. The showing need not be proof of the risk of torture to that person, but the individual must
make out a prima facie case that there may be a risk of torture upon deportation. If so, the min must:
    1. provide the refugee with all the relevant info and advice she intends to rely on,
    2. provide the refugee an opportunity to address that evidence in writing, and
    3. after consideration, issue responsive written reasons.
     This is the minimum required to meet the duty of fairness and fulfill the requirements of
        fundamental justice under s. 7 of the Charter.
The Min argues that even if the procedures used violate S‘s s. 7 rights, that violation can be justified
under s. 1. Despite the legitimate purpose of s. 53(1)(b), it can‘t be justified.

General statute about procedures – See the Administrative Procedures Act 2000 (Alberta) and Statutory
Powers Procedure Act 1971 (Ontario) (Page 302 text). This provides a sense of the kinds of detailed
procedural claims that are the attention of the balance of this chapter. In Re Downing and Graydon (1979)
(On CA) the SPPA was expressly excluded and all three members of the CA agreed that this exclusion
was not necessarily an exclusion of natural justice. The Act merely provides rules for the conduct of
hearings which are more rigid and formal than the general and more flexible prescriptions of the common
law. There are difficulties in creating such an Act: the first is the technical or craft challenge of drafting,
especially the needs to avoid inconsistencies or gaps and to integrate the statute with the common law.
Have the Alberta or Ontario Act met this challenge? The second challenge is the need to accommodate
divert among the agencies. The Alberta legislation is less detailed and more limited than the subsequent
Ontario legislation. Also note Quebec’s Charter of HR and Freedoms, which codifies the right to
procedural fairness (including tribunals exercising judicial or quasi-judicial functions). That is, a right to a
full and equal, public and fair hearing by an independent and impartial tribunal whenever rights and
obligations are being determined. It now has the Administrative Justice Act 1996, which applies to any
organ of the provincial government.

        Specific Content Issues
Here we examine a range of specific content issues that have arisen not only in the context of common
law, Charter, and Bill of Rights claims to procedural protections, but also in the interpretation of
provisions in the Alberta and especially the Ontario general statutes.

     Baker draws on prior jurisprudence to articulate a non-exhaustive list of considerations to assist in
        determining the type or level of procedural protections due where the common law threshold is
        met.
     In Suresh v Canada (Min of Citizenship and Immigration), [2002] 1 SCR, the court looked to the
        factors discussed in Baker to determine what procedural protections were required under s. 7 of
        the Charter in the circumstances of that case. Baker’s (non-exhaustive) list of factors for
        determining what is required by the duty of fairness includes:
    (1) the nature of the decision made and the process followed in making it,‖ that is, the closeness of
        the admin process to the judicial process;


                                                      22
    (2) the role of the particular decision within the statutory scheme (i.e. whether or not an internal
        appeal procedure is provided in the statute);
    (3) the importance of the decision to the individual or individuals affected;
    (4) the LE‘s of the person challenging the decision (i.e. whether the ADM made representations as to
        the procedures to be followed or the outcome of the case; and
    (5) The choices of procedure made by the agency itself.

Using the Baker factors as guidance, then, whether a particular procedure is required as part of the
decision-making process will depend on the circumstances. The basic principles that underlie the duty of
fairness and the principles of fundamental justice are:
    A. An affected party must have an opportunity to know the issues and to make
         representations;
    B. The deliberative process followed by the ADM must meet the duty of fairness or be in
         keeping with the principles of fundamental justice; and
    C. The decision must be made by an unbiased, independent decision maker.

Each principle will be discussed in turn:

    A. Choice of procedures (participatory rights)

With regard to the principle that an affected party must have an opportunity to know the issues and to
make representations, the question becomes whether the procedural choices made by the ADM achieved
this. Where a particular procedure is sought by an affected party, the ADM must consider whether that
procedure is required in order to afford the party an adequate opportunity to make representations, or
whether sufficient participation can be ensured in some other way. If the former, then in that context, a
denial of the procedure in question means that the ADM failed to meet the duty of fairness or the
principles of fundamental justice. (Remember, though, if a violation of s. 7 is found, one still has to
consider s. 1 of the Charter). With each of the procedural issues raised in this section, the point is to get a
sense of what factors are likely to move the court toward placing greater or lesser procedural requirements
on an ADM.

Notice – some form of notice will always be required to inform affected parties of the fact that a
particular decision is about to be made. The notice should also set out the legislation that authorizes the
decision, the issues involved, how representations may be made, and the possible consequences or penalty
if the decision is adverse. Problems about notice arise in 4 groups:
     1. problems about form,
     2. problems about the manner of service,
     3. problems about time, and
     4. problems about contents
There are two common forms of notice;
          oral and
          written (written is most common).
Usually, the means of giving notice is specified by legislation (24(1) SPPA for example). If no
legislative specification is made, presumably the courts will permit notice to be given in some public way
(adverts in newspaper, for example). But note Re Central Ontario Coalition and Ontario Hydro (1984)
(On Div Ct) which was about notice requirements for decisions about the location of electrical
transmission lines, particularly large high voltage lines. ―The notice published in the newspapers of the
Board‘s first hearing would convey very little‖ (the project was conducted in ―South western Ontario, and
no one really knew where that was and who would be affected). ―There is no question that Hydro made a
conscientious effort to publicize its proposed expansion before the Board‘s hearings commenced, yet
there is simply no basis for concluding that all or even most affected persons would comprehend from the

                                                      23
notice given that their property might be affected.‖ Also note that giving notice by mail creates the
possibility that it will not be received in time (Re City of Winnipeg and Torchinsky (1981)). A new
assessment was made of T‘s property and on April 10 the assessor mailed her notice (there was a right to
appeal and May 12 was given as the day for the hearings). The notice did not arrive until May 12, T gave
his notice, and the city sought to prohibit the board from hearing the appeal on the ground that the notice
of appeal was late! The claim was dismissed.
     Thus, notice must be given long enough before the date of the proposed hearing to give the party
         enough time to decide whether to participate and to prepare.

Note that issues of notice are not confined to pre-hearing notice (above) but can also arise in the course of
a hearing. When should notice be given and what are the limits on its contents and wording (in the case of
a commission of inquiry, who are under a statutory duty to provide notice and an opportunity to respond
to those they are of mind to name adversely in their final report) See...

Canada (AG) v Canada (Commission of Inquiry of the Blood System in Canada – Krever
Commission), [1997] 3 SCR
This case involved more than 1000 Canadians becoming infected with HIV from blood and blood
products in the early 1980s. About 12,000 Canadians became infected with Hep C. Pursuant to the
Inquiries Act, the Government of Canada appointed Krever JA (the Commissioner) to review and report
on the blood system in Canada. A description of his mandate was published in newspapers across Canada.
Subsequently, all those with an interest were provided with an opportunity to apply for standing before
the Inquiry and for funding. He wanted to get to the bottom of what happened, determining what caused
or contributed to the contamination of the blood system in Canada.
     Under the Act, the Commissioner is required to give notice to any person against whom he
         intends to make findings of misconduct.
     On the final day of scheduled hearings, 45 confidential notices naming 95 individuals,
         corporations and governments were delivered pursuant to s. 13 of the Act. The notices said they
         had a right to respond as to whether the Commissioner ought to reach these adverse conclusions.
The recipients were given until Jan 10, 1996 to announce whether and how they would respond to the
notices in their final submissions. A number of recipients of notices brought applications for JR in the
Federal Court. It was held that no findings of misconduct could be made against 47 of the applicants for
JR, but dismissed the rest. Many recipients whose notices were not quashed appealed, and the FCA
quashed one notice, but dismissed the remaining appeals. For most, a good reputation is their most highly
prized attribute.
     It follows that it is essential that procedural fairness be demonstrated in the hearings of the
         commission. The more detail in the notice, the greater the assistance it will be to the party (since
         its purpose is to allow parties to prepare for or respond to any possible findings of misconduct
         which may be made against them).
     The notices in this case are NOT objectionable.
     The appellants submit that because the Commissioner waited until the last day of hearings to
         issue notices identifying potential findings of misconduct which might be made against them,
         their ability to cross-examine witnesses effectively and present evidence was compromised.
         Although it might be helpful for parties to know in advance the findings of misconduct which
         may be made against them, the nature of an inquiry will often make this impossible.
     Although the notices should be given as soon as it is feasible, it is unreasonable to insist that the
         notice of misconduct must always be given early (broad inquiries aren‘t focused on individuals or
         whether they committed a crime, but are concerned with institutions and systems and how to
         improve them).
In some inquiries (such as this one), the commissioner cannot know what the findings may be until the
end or very late in the process.


                                                     24
      So long as adequate time is given to the recipients of the notices to allow them to call the
         evidence and make the submissions they deem necessary, the late delivery of notices will not
         constitute unfair procedure.
In this case, where there was an enormous amount of information gathered over the course of the
hearings, it was within the discretion of the Commissioner to issue notices when he did (more
straightforward cases could be treated differently – depends on circumstances and context of each case).
The parties were also given about 3 weeks to respond, which was enough time here.

Pre-hearing discovery/disclosure – Fuelled by the SCC judgement in R v Stinchcombe (1991), there was
an increasing concern with the question whether notice entitlements in the admin process involve a claim
to pre-hearing ―discovery‖ of all relevant information in the possession of the ―other side‖ or the
―prosecution.‖
      In some circumstances, complete discovery from other parties or disclosure by the ADM may be
        required (Ontario HR Commission v Ontario Board of Inquiry into North Western General
        Hospital (1993) (On Div Ct)).
Here a board of inquiry was set up under the Ontario HR Code to hear a complaint of racial
discrimination made by 10 nurses employed by the hospital. The Inquiry ordered the Commission to
provide the respondents with all statements made by the complainants at the investigative stage and the
statements and identity of witnesses interviewed by the Commission or its agents. The Commission
applied for JR of that order. The board of inquiry considered what degree of disclosure was required to
meet the duty of fairness in the circumstances of this case. The court noted that s. 12 of the SPPA clearly
recognizes the authority of a board of inquiry to order the production of all the documents which are the
subject of the order in this case, subject to claims of privilege.
      The fact that complainants are aware that their original complaint or complaints may be
        subsequently disclosed might well encourage complainants to take the appropriate care in
        communicating their allegations. The allegations here are extremely serious.
      Any concerns can be addressed by the procedures of the HR Commission and by the provision of
        access to independent legal counsel.

     In other circumstances a more limited provision of information may suffice
CIBA – Geigy Ltd v Canada (Patented Medicine Prices Review Board), [1994] FC).
This case dealt with the extent of the disclosure required to the appellant of documents in the hands of the
Patented Medicine Prices Review Board. Under the Patent Act, the Board scheduled a hearing to
determine whether a drug marketed in Canada by the appellant is being sold at an excessive price. The
judge noted that the concept of procedural fairness is eminently variable, and its content is to be
decided in the specific context of each case (Knight).
     It was held here that law and policy require that some leeway be given to an admin tribunal with
        economic regulatory functions in pursuing its mandate. This is especially so if the tribunal is
        required by necessity to receive confidential information.
     Fairness is always a matter of balancing diverse interests. I find that fairness does NOT require
        the disclosure of the fruits of the investigation in this matter.

May v Ferndale Institution, [2005] 3 SCR
Habeas corpus should be granted because Correctional Service of Canada‘s failure to disclose the scoring
matrix for the computerized security classification rating tool unlawfully deprived the inmates of their
residual liberty.
     While the Stinchcombe disclosure standard is inapplicable to an administrative context, in that
        context procedural fairness generally requires that the decision maker disclose the information
        relied upon.
     The individual must know the case he has to meet.


                                                     25
       If the decision maker fails to provide sufficient information, his decision is void for lack of
        jurisdiction.
Without the scoring matrix which provides information on the numerical values to be assigned to each
factor and to the manner in which a final score is generated by the computerized tool...
     the inmates were deprived of information essential to understanding the computerized system
        which generated their scores and were prevented from formulating a meaningful response to the
        reclassification decisions. Considering the legislative scheme, the nature of the undisclosed
        information and the importance of the decision for the appellants, there was a clear breach of the
        statutory duty to disclose ―all the information to be considered in the taking of the decision or a
        summary of that information‖.

Delay – in recent years, the notion that undue delay in the conduct of admin proceedings could amount to
a breach of the rules of natural justice or procedural fairness achieved a measure of acceptance. It is even
one of the grounds specified for the basis of review found in s. 4 of the PEI Judicial Review Act 1988.
      Delay on the part of the ADM will undermine the duty of fairness or the principles of
         fundamental justice only if the party complaining of the delay can show that the delay prejudiced
         their interests in some way; for instance, witnesses are no longer available (Nisbett v Manitoba
         (HR Commission), (1993) (Man CA)); or the delay itself, as opposed to other external factors,
         caused severe psychological distress (Blencoe).
Consider the following case (Kodellas v Saskatchewan (HR Commission) (1989) (Sask CA) – would it
have been decided differently in the wake of Blencoe? Here ―unreasonable delay‖ was at issue in the
context of s. 7. The factors considered here were:
     1. whether the delay was prima facie unreasonable,
     2. the reason or responsibility for the delay, and
     3. the prejudice or impairment caused to the alleged discriminator by the delay.
In this case, the time lapse between the filing of the first complaint by the first complainant and the date
fixed for the hearing is approximately 3 years and 11 months. There was no hesitation in finding that this
delay was prima facie unreasonable. Secondly, neither the complainants nor the alleged discriminator was
responsible for the delay. The delay is therefore totally attributable to the Commission. (Not really any
evidence of serious problems with institutional resources). Thirdly, with regards to prejudice, the delay
severely hindered his ability to get witnesses.
      Thus, Mr K has displayed some level of prejudice (although the judge was ―not impressed‖ with
         the attempts to locate potential witnesses).

Oral hearing – This means a ―face to face‖ encounter with the decision maker and, where relevant, the
other party or parties. With the emergence of the procedural fairness doctrine, the presumption in favour
of oral hearings as the norm disappeared in the expanded common law procedural terrain (remember
that Nicholson was Canadian‘s first major procedural fairness judgement – Laskin CJC).
     Remember it was noted in Singh by Wilson J that an oral hearing was not necessarily a universal
         component of the ―principles of fundamental justice‖ under s. 7, though she did reiterate the
         conventional wisdom as to the need for such a procedure ―where a serious issue as to credibility
         is involved.‖
Hundal (1985) (BC CA) where the court accepted that the suspension of a driver‘s licence engaged s. 7
but went on to hold that the Superintendent did not have to hold an in-person hearing when suspending a
licence under a demerit points system. Such a hearing was not necessary for a proper consideration. An
opportunity to respond in writing would be adequate (credibility was not a major factor).
     The conventional view has always been that the claim to an oral hearing is at its highest when
         credibility is an issue in the proceedings (this has gone unchallenged).
Sexual harassment cases are tricky because complainants often don‘t want to confront their harasser and
to be cross-examined; which may act as an obstacle to formal complaints being lodged in the future.


                                                     26
Cases like this don‘t just involve oral hearings; they also involve cross-examination rights, and access to
and the opportunity to meet adverse evidence.

Master v Ontario (1994) (Dic Ct)
M was the agent general in NY (appointed by the premier) until complaints of sexual harassment. The
Premier requested a team of external investigators to ascertain the facts. They produced a report that M
has indeed sexually harassed 7 women. M resigned. He then applied for JR of the investigators‘ report
alleging various breaches of natural justice in the conduct of the investigation. One major concern was
that 45 witnesses had been interviewed by the investigators without M or his counsel being present, he
had been refused access to a list of questions asked, copies of notes, transcripts, or tapes during the
interview and the names of the investigators who conducted the interviews. M was allowed to interview
the witnesses himself, but few agreed to meet with him.
      The central submission was that where credibility will determine the main issue before a
        government decision maker, particularly where that main issue is vital to an interested party‘s
        professional career, the general duty of fairness and the rules of natural justice require that an
        impartial decision maker first be designated to determine credibility by way of a full trail-type
        hearing permitting witnesses to be subjected to cross-examination. This was not done.
There was no need to provide the applicant with all the witness statements. Disclosure of the substance of
the accusations against him was sufficient. Important here was the political nature of the position, and his
continued employment was at the discretion of the Premier. M‘s position was more politically
accountable than in Knight or Nicholson, this points towards the discretionary end. The investigation was
neither unfair nor biased.

Khan v University of Ottawa (1997)
     Always note if credibility is at issue
This case illustrates how claims to oral hearings (and procedural claims generally) are affected by the way
the courts characterize the issue before the decision maker and the nature of the interest that is at stake.
Here the appellant sought JR following the dismissal of her appeal from a failing grade. The appellant
received no notice of the Faculty of law Examination Committee and was not given an opportunity to
appear before the committee. In my view, a university student threatened with the loss of an academic
year by a failing grade is also entitled to a high standard of justice.
     In my opinion procedural fairness before the Examinations Committee in this case required the
        following: an oral hearing because her credibility was at issue on her appeal (appear in person and
        make representations); an opportunity for K to correct or contradict the three ―factors‖ it relied on
        in its decision. Thus, K was denied procedural fairness. If the Committee believed her (about the
        4th) booklet, she would have been given relief.
     Thus, her telling the truth was in issue. Such a hearing wouldn‘t be required, probably, if
        someone was appealing for a higher grade. This was different because her credibility was at issue.

A fundamental aspect of the duty of fairness and the principles of fundamental justice is that the
affected party must be given an opportunity to ‗make representations,‖ ―meet the case again
them,‖ be heard.‖ Much of the discussion on this issue focuses on whether there must be an oral hearing.
     Nicholson established that an oral hearing is not necessarily required for every decision that
        crosses the common law threshold (see Baker as well).
     The same has been held for s. 7 Charter cases (Singh and Suresh).
     If parties were not given an oral hearing, the reviewing court must consider whether the
        procedures followed by the ADM allowed the parties an adequate opportunity to make their case.
Situations that might require an oral hearing include those where
    1. credibility is an issue (Singh and Khan) or
    2. where the consequences of the decision are very serious.


                                                     27
An oral hearing may not be a requirement where there are other factors to be balanced against the party‘s
claim for an oral hearing, such as
    1. public safety (Hundal v Superintendent of Motor Vehicles (1985) (BCCA)) or
    2. ensuring a harassment-free workplace (Masters v Ontario (1984) (Div. Ct)).
One case has suggested that an oral hearing is not required where such a hearing would have been
unlikely to change the outcome (Hundal); however, other jurisprudence suggests that this factor should
not be relevant. Note that if an oral hearing is granted, when will it be a public hearing? In Ontario, for
tribunals subject to the SPPA, while openness is still a matter for tribunal discretion, s. 9 conditions the
exercise of that discretion with a presumption in favour of openness.

Right to counsel – this will usually be assumed and provided for statutorily (usually). See s. 10 of the
Ontario SPPA. However, note that s. 6 of the Alberta Administrative Procedures Act specifically
provides that representation by counsel is not a necessary component of the procedures subject to that
Act, leaving the matter to be resolved by individual statutes and regulations and the principles of common
law. S. 11 SPPA also places limits on counsel rights for witnesses. Thus, this seems to NOT be a
universal right -
     There is no automatic entitlement to counsel in the context of admin decision making. One must
         ask whether participation of lawyers is required in order for parties to be able to ―make their
         case.‖ Factors to consider include:

     1. The complexity of the case (Re Men’s Clothing Manufacturers Association of Toronto (1979)
         (Ont Div Ct)):
In this case the factual issues involved in the arbitration are of considerable age and complexity. In view
of the vital importance of the controversy to the applicant company, and the apparent complexity of the
matter both in fact and in law, natural justice...requires that the applicants be represented by legal counsel
at the arbitration hearing (decision from arbitrator emphasized that for 60 years the parties to these
collective agreements have been arbitrating only with lay representatives - lawyers could make ‗legal‘
arguments but could not participate in the presentation of facts relating to this grievance).

    2. Whether points of law are likely to arise and the seriousness of the decision (Howard v Stony
       Mountain Institution, (1985) (FCA)). Also the complexities and
    3. capacity of appellant (NB (Min of Health)).

Howard v Stony (1985)
On the Matter of entitlement to counsel in prison disciplinary proceedings, the Federal Court of Canada
was influenced by an English judgement (R v Secretary of State for the HD ex p Tarrant, [1984]).
Webster J said that the following should be considerations of every board when exercising its discretion
to allow legal representations or to allow the assistance of a friend or advisor:
     (a) the seriousness of the charge and the potential penalty and
     (b) whether any point of law are likely to arise.
Howard involved an appeal from a judgement which dismissed the appellant‘s application for an order
prohibiting the respondent from continuing or concluding the hearing of certain charges against the
appellant under s. 39 of the Penitentiary Service Regulations in the absence of legal counsel (as requested
by the appellant).
      Did the appellant have an undeniable right to counsel, and, particularly, did s. 7 of the Charter
         guarantee him that right?
With regards to s. 7, the inmate‘s ―liberty‖ was said to be at stake (solitary confinement was one of the
punishments). The judge accepts this so far as the appellant‘s liberty is involved for the present purposes.
In this context, any right a person may have to the assistance of counsel arises from the requirement to
afford the person an opportunity to adequately present his case. Has it then become necessary, in order to


                                                      28
afford an inmate an opportunity to be adequately heard and thus to fulfil the requirement of s. 7, to
recognize his right to be represented by counsel in a disciplinary court?
     It appeals to me that whether or not the person has a right to representation by counsel will
        depend on the circumstances of the particular case, its nature, its complexity, the capacity of
        the inmate himself to understand the case and present his defence.
On the facts, the fact that the 267 days of earned remission was in jeopardy was itself enough to suggest
the need for counsel. One charge was notoriously vague and difficult to defend, which suggests a need for
counsel as well. It didn‘t matter that he was not mentally incapacitated, or even that his loss of liberty
would have only be 267 days.

NB (Min of Health and Community Services) v G(J), [1993] 3 SCR
Did s. 7 of the Charter require that a mother be provided with counsel for the purposes of resisting an
application by the Child Welfare authorities for renewal of an order placing her 3 children in the custody
of the state? The appellant‘s right to a fair hearing required that she be represented by counsel. This
conclusion is reached through the following factors:
     1. the seriousness of the interests at stake,
     2. the complexity of the proceedings, and
     3. the capacities of the appellant.
The parent‘s and child‘s security of the person is at stake. This is very serious indeed. The case was also
complex; while the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently
raised. The parent is under emotional strain and expected to cross-examine, make objections, and present
legal defences. The appellant did not posses superior intelligence, which would be needed to fight such
a battle. Note again, that just because s. 7 is invoked doesn‘t mean right to council will exist. In custody
hearings, seriousness, complexity, and capacity of appellant will change from case to case.
      Thus, the potential restriction of the appellant‘s right to security of the person would NOT have
         been in accordance with the principles of fundamental justice had the custody hearing proceeded
         with the appellant unrepresented by counsel.
The potential s.7 violation in this case would have been the result of the failure of the government of NB
to provide the appellant with state-funded counsel under its Domestic Legal Aid program after initiating
proceedings under the Family Services Act. The state had a con duty to provide counsel. Is it saved
under s. 1? The Legal Aid Act does not expressly or by necessary implication deny state-funded counsel
to people in custody applications. The deleterious effects of the policy far outweigh the salutary effects of
any potential budgetary savings (even if the limit of counsel was prescribed by law, the objective is
pressing and substantial, the policy is rationally connected the objective and it constitutes a minimal
impairment). Always note that s. 7 violations are not easily saved by s. 1 (Re BC Motor Vehicle Act,
[1985] 2 SCR).

    4. The potential impact of lawyers‘ participation, in terms of time, cost, and efficiency
    5. The capacity of the individual involved to present the case without counsel (Howard and
       Transportation Accident).
    6. Potential impact on one‘s reputation and career:

See Re Parrish (1993) (FC)
A captain who had been involved in a collision with another ship was summoned by a Safety Board (1989
Act). The captain appeared with two counsels, but the investigator refused to allow the captain to have
counsel at the hearing. Counsel was, however, present when the other members of the crew were
interviewed. The board put a question to the Federal Court Trail Division under s. 18(3) of the Federal
Court Act as to whether it could require the captain to attend and give evidence under oath without the
presence of counsel. My review on the jurisprudence reveals that the duty to act fairly implies the
presence of counsel when a combination of some or all of the following elements are either found within
the enabling legislation or implied from the practical application of the statute governing the tribunal:

                                                     29
    1. where an individual or witness is subpoenaed, required to attend and testify under oath with a
         threat of penalty;
    2. where absolute privacy is not assured and the attendance of others is not prohibited;
    3. where reports are made public;
    4. where an individual can be deprived of his rights or his livelihood; or
    5. where some other irreparable harm can ensure (non-exhaustive list).
The board here feels that counsel would lead to unwarranted delay. Here, the circumstances of procedural
fairness require that the witness be permitted to be accompanied by counsel when at the inquiry. Here the
investigator is not legally trained (asking questions that may be beyond the board‘s mandate), perhaps in
the presence of police or regulatory bodies that have the power to deprive him not only of his
reputation but his professional certification and his livelihood.

Cross-examination – the opportunity to cross-examine adverse witnesses is not automatically part of the
duty of fairness or principles of fundamental justice in every context.
     The real issue is whether one has been afforded sufficient opportunity to respond to or challenge
        adverse evidence that is before the ADM.
     The form that this opportunity takes may vary from full cross-examination as in a court, to
        responding in writing to the evidence or opinions of other side.

Re Toronto Newspaper Guild and Globe Printing, [1951] (Ont HC)
Case suggests that cross-examination is usually the most effective way to test the merits of the opposing
case (however, note Re Country of Strathcona). The judge in Re Toronto Newspaper said that ‗I think the
company was improperly excluded from a cardinal privilege which it enjoys under our jurisprudence; that
exclusion, of itself, was tantamount to a denial of basic justice.‖ The principle is now enshrined in s.
10.1(b) of the Statutory Powers Procedure Act (SPPA), though conditioned on the cross-examination
being ―reasonably required for a full and fair disclosure of all matters relevant to the issues in the
proceedings.‖ What does ―reasonably required‖ mean? See Innisfil (Township) v Vespra (Township),
[1981] 2 SCR

Re County of Strathcona No 20 and MacLab Enterprises, [1971] AL SCAD))
Case notes that the purpose of cross-examination is to try to weaken the case against one, and that if a
party has been provided with another, but equally effective way of doing so, cross-examination may not
be necessary. This case involved a decision of the Provincial Planning Board. A right to be heard and
present a case is part of natural justice, and in the process he is entitled to weaken and destroy the case
made against him. However, if he is afforded an equally effective method of answering the case made
against him, the requirements of natural justice will be met.
     Thus, the importance of cross-examination will vary from case to case. In this case, to ability to
        make written responses were enough to ―correct or contradict‖ any ―statement prejudicial to their
        view‖ in the report.

Innisfil (Township) v Vespra (Township), [1981] 2 SCR
The main issue was whether opposing municipalities were entitled to cross-examine the official of the
ministry who had presented the letter. The adversarial system, founded on cross-examination and the right
to meet the case being made against the litigant...is the procedural substructure upon which the common
law itself has been built.
     But just because this applies to courts doesn‘t necessarily mean it applies to admin tribunals.
     Note that the overriding considerations in cases of natural justice are the statutes themselves.
         Statute here provided for cross-examination.

Re B and Catholic Children‘s Aid Society (1987)


                                                    30
Case dealt with the Child Welfare Act, and specifically a child abuse register. If an individual was on that
list, they were entitled to notice and to make an application to be removed (a hearing was required for this
application, and an appeal could be made). A social worker was called as a witness at the hearing
(relaying conversations with the victim). The alleged victim was not called as a witness, and thus the
appellant could not test her testimony by cross-examination. In this case, where the appellant was denied
the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a
denial of natural justice (see s. 15(1) SPPA where hearing officers can rely on hearsay evidence).

See McGarity (1979) who states that cross-examination over expert data usually reveals only the depth of
the disagreement among the experts; it rarely reveals any basis for choosing one expert‘s interpretation of
the data over another‘s. Cross examination is of little use as well when something can be effectively
disputed by some form of data (I thought there were X tons of air freight but the American Airlines shows
there was only Y tons of freight). However, cross-examination of Board witnesses could play an
important role in exposing possible error, bias, or lack of solid foundation which cannot be effectively
brought to light simply by introducing rebuttal argument against the generalized policy statements. At the
very least it puts some burden on the agency to explain and articulate the assumptions and the foundations
on which its policy rests.

Disclosure and official notice –
     The general principles are clear: a party is entitled to know what evidence and representations
       have been given and are entitled to an adequate opportunity to respond.

Kane v Board of Governors of the UBC, [1980] SCR
After a hearing where the applicant was present, representations were made by someone on the board.
―The Board heard the further facts, deliberated, and ruled against Dr. Kane. In so doing, it made a
fundamental error.‖ Disclosure is the disclosure to parties of information that the agency has about the
decision to be made and official notice is the extent and manner in which an agency may, in making its
decisions, use material that is not introduced in evidence.
     This section deals with limits placed on access to relevant material in the name of confidentiality
        claims of various kinds.
     Note that just because information is exempted from disclosure under freedom of information
        legislation does NOT necessarily mean that its disclosure will also be denied in proceedings to
        which the rules of natural justice or procedural fairness apply.
Note Crown or executive privilege (Canada Evidence Act ss. 37-39). Also note solicitor-client privilege.
The typical difficulties come down to this:
    (1) an agency may have collected information about an individual, and the individual may wish
        disclosure of this information;
    (2) an agency may have collected information about an individual from other persons, and the
        individual may wish to know their identity;
    (3) an agency may have collected information about a business, usually as a required part of an
        application, and other parties, often competitors, may wish disclosure; and
    (4) an agency may have material that it has created itself (staff reports about particular corporations
        or about general economic conditions) and any party (maybe competitors), may wish disclosure
        of this material.

       Disclosure
   (1) Access to agency information
The best known problem is access to the files of workers‘ comp boards, especially disclosure of the
medical reports in these files.
    Argument for disclosure is that the individual should have the right to know what government
       knows about them.

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Re Napoli and Workers‘ Comp Board, (1981) (BC CA)
Here the issue was: was the judge right in finding that the boards of review and the commissioners of the
WCB breached the rules of natural justice in failing to give the worker a full opportunity to peruse his file
when he appealed from the original decision of a disability awards officer or commissioner? The
procedures provided for in such appeals (in statues) were first examined. He was originally awarded 50
per month by the disability officer. He appealed this decision to the board of review. Prior to the hearing,
a WCB compensation consultant provided his counsel with a 4 page summary of the information in his
life. When the board heard the appeal, it declined to disclose medical reports on his file (his appeal was
then denied). He applied for leave to appeal the decision of the board of review to the commissioners of
the WCB, and leave was granted. Then appeal was brought to the BCCA. HELD: the file contents must
be disclosed!
      Do the rules of natural justice in cases like this require disclosure (yes)? If disclosure if required,
        to what extent? It was argued that the 4 page summaries were sufficient to comply with natural
        justice. Here, a high standard of justice is required since the N‘s future will be largely shaped by
        the decision of the final domestic tribunal.
      Fairness requires that the original reports be disclosed in order that the claimant can effectively
        answer the case against him.

Charkaoui v Canada (Citizenship and Immigration), [2007] 1 SCSR
Here it was held that, while the Immigration and Refugee Protection Act procedures properly reflect the
exigencies of the security context...
     Security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do
         not conform to fundamental justice.
Here, the IRPA scheme includes a hearing and meets the requirement of independence and impartiality,
but the secrecy required by the scheme denies the person named in a certificate the opportunity to know
the case put against him or her, and hence to challenge the government‘s case. The Act allows the
minister to issue a certificate (for foreign national or permanent resident) declaring the named person to
be a security threat and inadmissible to Canada.

    (2) Identity of sources of information
This involves claims to disclosure of sources of information, and there is no general rule beyond
―reasonableness.‖
     Are people permitted to know the identity of their accuser at a nurse disciplinary hearing, or a law
        society hearing which has belief that a would-be lawyer is not of ―good character‖? See...

Gallant v Canada (Deputy Commissioner, Correctional Service of Canada) (1989) (FCA)
Here G was a prisoner at Kent Institution (max security institution). He was advised that he was suspected
of involvement in extortion and drugs. More specific info was not given on the basis that it would
threaten the safety of the victims of his actions. G applied to the TD for an order quashing the ultimate
decision of the deputy commissioner to transfer him. This was granted since the information was
insufficient to satisfy requirements of procedural fairness. The Deputy appealed. The informants would
face death, it was alleged. The notice was sufficient.
      Parliament cannot have intended, when it gave the Commissioner and his delegates the power to
         transfer inmates from on pen to another, that they should be bound by the rules of procedural
         fairness even when the application of those rules would endanger the lives of other inmates. Thus,
         the transfer should NOT have been quashed.
But, what about s. 7? It can no longer be said that to transfer a prisoner where his freedom will be
restricted does not invoke s. 7 (Martineau v Matsqui Institution Disciplinary Board, [1980] SCR). Such a
decision must be in accordance with the principles of fundamental justice. The right to a fair opportunity


                                                     32
to be heard is guaranteed by the principles of fundamental justice as well as by the principles of natural
justice and procedural fairness.
      The rules of fundamental justice are not as flexible as procedural fairness, thus, the transfer
          decision was NOT made in accordance with the principles of fun justice since he was not given
          adequate information.
      But, can it be saved by s. 1? It can be.
It is reasonable (in a free and democratic society), if not necessary, to confer such a wide discretion on
pen authorities. However, note Gough (below).

Gough v Canada (National Parole Board) (1990) (FCTD)
G‘s parole was suspended and revoked after the Correctional Service Officer heard allegations of other
crimes. The Board, relying on s. 17(5) of the Parole Regulations and the authority it created to refuse
disclosure of info, never revealed at G‘s post-suspension hearing the details of the alleged incidents or the
names of the victims. G wanted the revocation quashed based on s. 7. The board argued that the applicant
was given enough info to enable him to answer the allegations because he knew of the incidents in
question. If there was no Charter, the board would have no trouble. There is no doubt that Parliament can
derogate from the common law principles of natural justice should it decide to.
     Under s. 7, of course, the rule of fundamental justice require that an individual is entitled to know
         the case against him in a decision-making process which leads to a diminution of his liberty.
     It is also trite that the requirements of fundamental justice depend on the circumstances of the
         case.
     There is no doubt that the applicant, in the present case, is entitled to sufficient detail respecting
         the allegations being made against him to enable him to respond intelligently thereto unless the
         respondent can demonstrate otherwise.
     Is s. 17(5) justified under s. 1?
Note, admin convenience does not justify a denial of fundamental justice (Singh). The board also
argued that the parole system would be undermined if identities would be compromised since they would
fear reprisals. But this is not supported by fact (the entire justice systems runs this way).
     The applicant‘s s. 7 rights have been infringed by the refusal to provide him with the confidential
         information upon which the Board is relying. The 17(5) Reg cannot be justified under s. 1. The
         Board‘s decision is quashed and an order of mandamus will issue requiring a new hearing by a
         differently constituted panel of the National Parole board.

    (3) Commercially sensitive information
This presents the possibility of disclosure of information about a business that may generally be regarded
as confidential and that may give competitors an advantage because, for example, it may reveal its pricing
practices or contract terms it has been willing to accept. Such protections are contained in the Canadian
International Trade Tribunal Act 1985. Agencies may themselves make rules on disclosure (CRTC
regulation for practice in its telecommunications proceedings. Any document submitted to the
commission is public, unless a claim for confidentiality is made and ―specific direct harm‖ is proven if the
information is made public). Also see regulations made by the National Transportation Agency.

Ogilvie Mills Ltd v NTA (1992) (FCA)
Here the National Transportation Agency upheld claims of confidentiality for financial data made by
applicants in railway line abandonment proceedings. The court emphasized that those objecting had not
demonstrated that the info would be relevant to the proceedings, and that the public interest demanded
disclosure. As a result, the court was NOT inclined to interfere with the NTA‘s exercise of discretion not
to order production of the financial data.

    (4) Staff studies


                                                     33
These are claims to disclosure of materials crated by an agency itself (reports prepared by its staff or
guidelines and statements of policy) (encountered this problem in the discovery case of CIBA Geigy Ltd).
The CRTC, for example, follows the practice of having its staff submit a report following each hearing
summarizing the material put forward at the hearing (this is sensitive material). Consuming interest
organization will be very anxious to see any inspection reports relating to the safety of quality of products
or services they buy and a firm subject to disciplinary action is very likely to want to see any inspection
reports that may have been filed about its operations (see Law Commission Report 1979 – Franson,
―Access to Info: Independent Admin Agencies‖).

Toshiba Corporation v Anti-Dumping Tribunal (1984)
Here Toshiba sought review of a declaration of the Tribunal on the grounds of the Tribunal has relied on
two reports prepared by staff and did not disclose the reports to the parties. Although Hugessen J said this
was a ―dangerous practice,‖ it was not necessary to disclose the reports in this case. Most of the info was
public knowledge, and it wouldn‘t have made an impact on the decision (despite the fact that there was a
―technical breach‖ of natural justice).
     Disclosure of reports may only be necessary if they were used by the Tribunal to make its
         decision and contains evidentiary material to which the parties have not had an opportunity to
         respond (Trans-Quebec & Maritimes Pipeline Inc v National Energy Board (1984) (FCA)).
That is, when action is taken on its report, meaningful opportunities will arise for interested parties to take
issue with its recommendations and advice (Re League for HR of B’Nai B’rith and Commission on
Inquiry on War Criminals (1986) (FCA)). Also note that Inquiry‘s own staff cannot put arguments
privately to the Commissioner or to the Inquiry. If they want to put their arguments forth, it will be
necessary for them to place the arguments before the Inquiry, where they can be challenged, adopted or
ignored by the other participants in the Inquiry (Berger, ―The MacKenzie Valley Pipeline Inquiry (1976)).

        Official notice
(Davis, Admin Law [1972] pp. 291-314)
    Where an agency decision rests on official notice of a material fact not appearing in the evidence
        in the record, a party is entitled, on timely request to an opportunity to show the contrary.
    When can an agency go beyond the record for a material fact?
    The nub of the central problem is to reconcile the needs of procedural fairness with the need for
        full and free use of whatever expertness the agency may have, including the kind of
        understanding that is based upon an inseparable mixture of experience and information.
One solution is to put everything on the record! But in some circumstances, an agency must be free to go
beyond the record for some of its facts.
    The central problem of official notice normally arises for the first time when the examiner is
        studying the record to prepare his proposed report...it is then that he discovers points of which
        additional info or advice is needed. He then needs to ask help from an agency specialist, or begins
        to remember that another case or a record of an investigation or reports to the agency by the
        parties or previous staff studies may illuminate what he now realizes to be one of the dark corners
        of the case.
    Should they ignore the info? Use it but conceal it? Use it but notify the parties of its use?
Note that the SPPA deals with official notice in s. 16.

Township of Innisfil v Township of Vespra, [1981] 2 SCR
This is one of the few Canadian cases that have considered official notice. It was about annexing land in
three adjacent townships. One of the issues was of the board‘s decision about the amount of vacant
industrial land that would be needed for the projected population. The opposing municipalities argued that
there was no evidence for some of the figures and calculations made. The DC court didn‘t like the extra-
judicial evidence gathering. The SCC agreed with the CA that the Board didn‘t commit an error of law.
―The board made its decision on the vacancy factor on the basis of general principles which it had

                                                      34
accepted in previous cases and on other evidence which had been presented to it and used its previous
experience in Barrie, not as a compelling precedent, but only as an example.

Institutional decisions:
The sheer volume of the decisions to be made may demand large staff and some arrangement for dispersal
of authority, specialization, and control. For example, some agencies that provide income support benefits
make hundreds of thousands of decisions each year. Secondly, the range and complexity of the issues
may make it impossible for any individual or small group of individuals to have the time, expertise, and
perspective to make an intelligent decision. When considering an application for JR of a decision for
procedural unfairness, the reviewing court is not equipped to prescribe the optimal procedure for the
agency. Its role is the more modest but nonetheless challenging one of understanding the admin context of
the decision and fashioning the content of the duty of fairness so as to retain its essential values and
insights without depriving the agency of the institutional means available to enable it to discharge its
statutory mandate effectively and efficiently. There is no discrete legal doctrine about institutional
decision making, although some aspects of the duty of fairness have proved particularly relevant: the rule
restricting delegation of legal powers and duties, the principle that only those who heard the evidence and
argument may participate in making the decision, the duty of disclosure, and the impartiality and
independence of the decision maker.

    B. Deliberative process

Under ―choice of procedures‖ we discussed the extent to which the duty of fairness or principles of
fundamental justice require that an ADM extend certain procedural entitlements to persons affected by its
decisions. Thus, the focus has been on parties‘ participatory rights. The duty of fairness and the principles
of fundamental justice go beyond this, however. Procedural concerns also involve a consideration of the
deliberative process itself. This includes:
      How ADM‘s go about deciding (which raises issues of delegation and consultation)
      The extent to which an ADM‘s reasons, as opposed to simply the outcome, must be
         provided to those affect.

Delegation – this does not imply a parting with powers by the person who grants the delegation, but
points rather to the conferring of an authority to do a thing which otherwise that person would have to do
himself.
      Whether delegation is permissible depends entirely on the interpretation of the statute which
         confers the discretion. A discretion conferred by statute is prima facie intended to be exercised by
         the authority on which the statute has conferred it and by no other authority, but this intention
         may be negatived by any contrary indications found in the language, scope, or object of the
         statute.
      The prima facie rule is displaced by a section in the statute which expressly permits the authority
         entrusted with discretion to delegate it to another.
Is the statute read literally to include ―personally‖ or will it be read to include ―or any person authorized
by it‖? Thus, a general principle of admin law states that an entity which is required by statute to decide
cannot appoint another to decide in its place.
      Therefore, there is a prima facie rule of statutory construction against an ADM delegating
         its powers, unless this is authorized by the enabling legislation.
However, courts will balance the theory of non-delegation against an assessment of how decision makers
actually work.
          Generally, there is fairly wide latitude for delegation of admin functions by Ministers or
              Cabinet (Local Government Board v Arlidge [1915] (Eng HL)),



                                                     35
            but less so for statutorily created ADMs, such as agencies, boards and tribunals. See Vine v
             National Dock Labour Board, [1957] (HL) (Lord Somervell classic judgement).
―In deciding whether a ―person‖ has power to delegate one has to consider the nature of the duty and the
character of the person.‖



Morgan v Acadia University (1985) (NS SC)
Case involved reviews of a disciplinary decision. Section 8 of the Acadia University Act provided that the
board of governors had ―power to adopt and carry into effect by-laws, resolutions and regulations
touching and concerning the instruction, care, government, and discipline of the students.‖ The board
delegated its responsibility for discipline to the dean of students. At the last stage was an appeal to the
Judicial Appeals Committee composed of students and faculty. After he was found guilty, he sought
review and failed (one of the grounds was delegation). Delegation was possible here due to the scope and
objects of the legislation (such delegation was envisaged).
     The delegation to the Dean and by him to students and faculty seems to me to be fair and
         practical. (Note that quasi-judicial functions can only be delegated by express authority – King v
         Institute of Chartered Accountants (Nova Scotia)) (1993)).

Those who hear must decide/consultation – the general principle is that only those members of an
agency who hear a particular case may decide it (but, must be sensitive to admin and legal contexts).
     For example, it will normally be a breach of the duty of fairness for a member of a hearing panel
       who is unable to attend for part of the hearing subsequently to resume sitting and to participate in
       making the decision.

Local Government Board v Arlidge [1915] (Eng HL)
Here a 1909 Act gave councils authority to make order closing houses that were unfit for human
habitation. It would also cancel if appropriate corrective measures were taken. He appealed to the board,
and the board appointed an inspector to do a report. He sought certiorari on 3 grounds, one of them being
―the order of the board did not disclose the officer who had made the decision, and therefore the appeal
could not be shown to have been decided by the board or by someone authorized to act for it.‖
     The minister has a lot of work to do, and he is expected to obtain his materials vicariously
         through his officials.
     Note that the argument from practicality is bolstered by the fact that ministers remain legally and
         politically accountable for decisions made in their name by departmental officials (there was
         great procedural latitude give here).

However, generally, this principle means that members of an ADM who did not participate fully in
hearing evidence or argument should not decide the case (Re Ramm (1957) (Ont CA)). Concerns
regarding this issue could arise in a number of contexts – for instance one member of an ADM might be
absent for some of the hearing. A recent NS case makes it clear however, that the principle only applies to
an actual hearing and does not attach simply because an ADM is required to seek public input by way of
public meeting (Potter v Halifax Regional School Board, [2002] (NSCA)).

In recent years, the issue of ―those who hear must decide‖ has arisen chiefly in the context of determining
what consultation, if any, an ADM may have with others, such as panel members who were not involved
in the actual hearing, or ADM staff including agency counsel. This is a significant point of tension:
      that is, whether, and if so to what extent, the duty of fairness precludes the members of an agency
         panel who heard a case from discussing it with other members of the agency after the hearing has
         ended, but before they have rendered their decision. The limits of such consultation are explored
         in...

                                                    36
International Woodworkers of America, Local 2-69 v Consolidated Bathurst Packaging Ltd, [1990]
1 SCR (note the term ―Consolidated Bathurst safeguards‖)
This case examined the decision-making process of the Ontario labour relations Board, where the
tripartite panel which heard a case could ask for a meeting of the full Board to discuss the policy aspects
of an upcoming decision (this full board meeting was not provided for in the enabling legislation). The
majority in the SCC upheld the full Board meeting process, rejecting the argument that the hearing panel
would be improperly influenced or pressured by those who were not part of hearing. The court accepted
that:
     1. the hearing panel remained responsible for deciding the outcome;
     2. Safeguards included the fact that full Board meetings were voluntary and only held at the request
          of the hearing panel;
     3. attendance was voluntary and not recorded;
     4. no minutes were taken;
     5. no matters were voted on;
     6. discussion was limited to policy; and
     7. facts were taken as determined by the panel (the Court held that it would be a procedural breach if
          those who had not heard the evidence could debate findings of fact).
The SCC accepted that the purpose of the full Board meetings was to call on the experience of other
members and to encourage consistency of approach, and held that it would be unrealistic to expect
ADM‘s to operate exactly like a court.

Decision (per Gonthier J): The appellants argue that the panel members must be totally shielded from
any discussion which may cause them to change their minds even if this change of opinion is honest,
because the possibility of undue pressure by other Board members is too ominous to be compatible with
principles of natural justice. Appellants also claim that full board meetings do not provide the parties with
an adequate opportunity to answer arguments which may be voiced by Board members who have not
heard the case (not difference between full board hearing and full board meeting – the parties are not
present at a meeting; in fact, they are not invited and no notice is given).
     The advantages of the practice of holding full board meetings must be weighed against the
          disadvantages involved in holding discussions in the absence of the parties.
Firstly, the judge notes that it would be highly impractical to have full board hearings often (too many
cases). The rules of natural justice should not discourage admin bodies from taking advantage of
the accumulated experience of its members. Since the Board‘s decisions are protected by a privative
clause, this makes it even more imperative to take measures such as full board meetings in order to avoid
conflicting results in the future (members at the meetings might form a panel on a similar case in the
future).
     I am unable to agree with the proposition that any discussion with a person who has not heard the
          evidence necessarily vitiates the resulting decision because this discussion might ―influence‖ the
          decision-maker.
     The institutionalization of the consultation process adopted by the Board provides a framework
          within which the experience of the chairman, vice-chairmen and members of the Board can be
          shared to improve the overall quality of its decisions.
     This form of consultation is a thoughtful discussion on the issues at hand.
     The rules of natural justice must have the flexibility required to take into account the institutional
          pressures faced by modern admin tribunals as well as the risks inherent in such a practice.
     The safeguards attached to this consultation process are, in my opinion, sufficient to allay any
          fear of violations of the rules of natural justice provided as well that the parties be advised of
          any new evidence or grounds and given an opportunity to respond.



                                                     37
Where the Consolidated Bathurst safeguards are not present, and it appears to the reviewing court that the
process of consultation undertaken by the ADM might interfere with the ability of those who heard the
case to decide freely, the consultation would be seen as a breach of procedural fairness, thus invalidating
the decision. See:

Tremblay v Quebec (Commission des affaires socials), [1992] 1 SCR)
This case involves issues in Consolidated Bathurst (institutional decisions). Did the decision follow the
rules of natural justice (the Commission‘s end result involved an internal consultation process established
by the Commission to ensure consistency in its decisions). Secrecy in institutional decision making
remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing
that the process followed did not comply with the rules of natural justice. In this case, the Commission
adopted its own consultation machinery in the Directives. The institutionalized decision-making process
is different than that considered in the IWA case. In some instances, the collegiate discussions were
compulsory (compulsory consultation and ―systemic pressure‖). The statute clearly provides that it is the
decision-makers who must decide a matter. Accordingly, it is those decision-makers who must retain the
right to initiate consultation; imposing it on them (by the president) amounts to an act of compulsion
towards them and a denial of the choice expressly made by the legislature. It is the quorum and only the
quorum which has the responsibility of rendering the decision.
      If T does not wish to consult, it must be truly free not to do so. Compulsory consultation creates
         at the very least an appearance of a lack of independence, if not actual constraint.
      Minutes are also kept here, unlike the IWA case.
      The decision is thus in breach of the rules of natural justice. The voting of hands as well may
         exert undue pressure on decision-makers (institutional consultation needs protective measures,
         like in IWA).

Ellis-Don Ltd v Ontario (Labour Relations Board), [2001] 1 SCR
Here it was alleged that the change between the draft and the final decision was of a factual nature as
opposed to a legal or policy change, and claimed that there was a breach of natural justice and a violation
of the rules governing institutional consultations. Prior to the hearing of the application for JR, the
appellant obtained an order compelling the chair of the board (who presided over the panel) to give
evidence with respect to the procedures implemented by the board in arriving at its final decision. This
order was reversed based on statutory testimonial immunity. The Divisional Court dismissed the
application and the CA affirmed the decision.
      All that was known by the appellant was that a draft decision had been circulated, then there was
         a full meeting, then the decision was changed at the meeting (the final decision was silent on what
         happened during the full Board meeting).
Deliberative secrecy favours admin consistency by granting protection to a consultative process that
involves interaction between the adjudicators who have heard the case and the members who have not,
within the rules set down in Consolidated- Bathurst.
      In the absence of any further evidence, this Court cannot reverse the presumption of regularity of
         the admin process simply because of a change in the reasons for the decision. A contrary
         approach to the presumption would deprive admin tribunals of the independence that the principle
         of deliberative secrecy assures them in their decision-making process. It could also jeopardize
         institutionalized consultation proceedings that have become more necessary than ever to ensure
         the consistency and predictability of the decisions of admin tribunals.

Agency counsel – nearly all admin agencies have some professional staff, including a secretary. They
also have access to legal counsel, who may be employed full-time in a variety of roles, or may be lawyers
in private practice engaged on a retainer to give legal advice as and when required. It is common for
tribunals, especially when sitting without a member who is legally trained, to have counsel available to
advise on the admissibility of evidence, procedure, or other questions of law that arise during the hearing.

                                                     38
The only problem is when counsel oversteps its role; creating an impression that its counsel, not the
panel, who is running the hearing.

        Reasons (always keep Baker in mind)

Preparation of reasons - Writing reasons for a decision can be an onerous and daunting task for the
members of many admin tribunals (professionals who sit on disciplinary committees earn very little or
modest remuneration). The agency may not have time to write reasons (where a hearing lasted several
days) and may have no experience is writing such reasons.
     How far may tribunals take advantage of the expertise of their staff, including counsel, in the
        preparation of the reasons for decisions, without breaching some aspect of the duty of fairness
        (delegation doctrine and bias)?
    1. The decision made must be that of the tribunal members themselves.
    2. The reasons for the decision must be in substance those of the tribunal members, not their clerk‘s
        or their counsel‘s.

It should be noted that the courts have permitted tribunals to seek the assistance of counsel or some other
staff member in the preparation of the statement of their reasons for decision (Armstrong v Canada 1994).

Spring v Law Society of Upper Canada (1988) (On Div Ct))
This case involved an appeal from the order of the Law Society of Upper Canada that the appellant be
disbarred for professional misconduct and conduct unbecoming a solicitor. One if the main grounds of
appeal were that the decision and reasons of the Discipline Committee were not prepared by the
Committee but by the clerk of the Committee. In the present case, the clerk was not part of the
prosecution. The deliberations, the findings and the decision, were all made without input from any third
party. The clerk did not participate in or influence the findings or the decision.
     No part of the decisional process was delegated. I conclude that the reasons were the reasons of
        the Disciplinary Committee and there can be no reasonable apprehension of bias. Craig J,
        concurring, said that while the reasons for the decision must be those of the committee, it is my
        view that the committee must be entitled to some journalistic and admin assistance in
        articulating its reasons.

Khan v College of Physicians and Surgeons of Ontario (1992) (On CA)
K has been found guilty of professional misconduct by the Discipline Committee of the college and his
license was revoked. Upon many grounds, K appealed on the ground that the committee had acted in
breach of the duty of procedural fairness by permitting its counsel to play so significant a role in the
preparation of its reasons for decision as to create a reasonable apprehension of bias. The committee is
entitled to the legal assistance of its own counsel during the hearing. It received such assistance in this
case and there is no suggestion that counsel‘s conduct during the actual hearing was improper. Reasons
for the guilty decision were only given 3 months later. It doesn‘t matter if the advice affects the decision.
It is the nature of the advice, not its effect on the final product, which must be considered.
      The Committee‘s ultimate responsibility for the authorship of the reasons is not inconsistent with
          the Committee availing itself of counsel‘s assistance during the drafting process.
      It is well established that a tribunal such as the Committee may look to outside sources for
          assistance in the preparation of its reasons (Spring).
      The debate must fix, not on the Committee‘s entitlement to assistance in the drafting of reasons,
          but on the acceptable limits of that assistance.
To hold that any ―outside‖ influence vitiates the validity of the proceedings or the decision reached is to
insist on a degree of isolation which is not only totally unrealistic but also destructive of effective reason-
writing. Where counsel is connected with one of the parties to the hearing an appearance of bias will


                                                      39
result if that counsel participates in the drafting process (Re Emerson and Law Society of Upper
Canada).
     Nothing in this record suggests that counsel‘s involvement in the writing of the reasons
         compromised the independence or impartiality of the Committee.
     Counsel was the servant of the Committee and was totally independent from the College or Dr. K.
         He didn‘t present any new facts or advocate one position over another (hindering Dr. K‘s ability
         to know the case against him).
It would be sheer speculation to hold that during the drafting stage, counsel led the Committee outside of
the confines of the evidence heard, the arguments made and the legal advice given at the hearing, so as to
deny K a fair hearing and a proper adjudication. The Committee ultimately maintained authorship!
Here:
    (1) a committee member prepared the first draft of the reasons;
    (2) Counsel, with the chairman of the Committee, revised and clarified the first draft but did not write
         independently of that draft;
    (3) the committee met to consider and revise the draft as amended by counsel and the chairman;
         counsel played no role in this review and revision;
    (4) the final product which emerged from the drafting process was signed by each member of the
         Committee.

Duty to give reasons - See section 17(1) of the SPPA and s. 7 of the Alberta Admin Procedures Act
which require decision makers to give reasons for their decisions (that fall within the act – and only on
request in the SPPA). Until recently, the common law was reluctant to impose on statutory and
prerogative decision makers an obligation to give reasons for their decisions. All of that changed with
Baker.
     There will clearly not ALWAYS be an obligation;
     in Baker itself, it was the importance of the interest at stake that triggered the obligation.
     The tendency of the courts since Baker has been to require the provision of reasons, but this is not
        universally held.
Some enabling legislation requires an ADM to give reasons for its decision; the issue here is whether a
duty to give reasons exists in the absence of such a provision in the legislation.
     The general rule at common law has been that there is NO duty to give reasons for an
        admin decision.
Accepted exceptions to this general rule provide that reasons could be required in situations of successive
applicants, or where a failure to give reasons might prevent a person from exercising a statutory right of
appeal or other statutory right of rehearing.
     Although this general rule has not been overturned by the courts, it is arguable that recent cases
        have significantly expanded the situations in which reasons will be required. A 1997 decision of
        the NS CA (Future Inns Canada Inc v NS (Labour Relations Board); [1997]) accepted the
        general rule, but may have widened the exceptions to it by stating that an ADM should provide
        written reasons whenever there are substantial issues to be resolved. The court also suggested that
        where an ADM is protected by a privative clause, there might be a greater need to give reasons.
     Baker (1999, supra) also seems to have expanded the situations in which an ADM must give
        reasons, while at the same time stating that there is no general duty. Here the SCC held that the
        duty of fairness will require the provision of written reasons in several contexts:
        (i)      where there is a statutory right of appeal,
        (ii)     where the decision has significant importance for the individual (the language of
                 ―profound importance‖ was used elsewhere in the case), or
        (iii)    in ―other [as yet unspecified] circumstances.‖
There is conflicting case law on the con duty to give reasons, i.e. on the issue of whether it would offend
the principles of fundamental justice to deprive a person of lift, liberty, or security of the person, without


                                                     40
providing reasons. It seems likely that the con requirements are fairly much in keeping with the common
law set out above (see Suresh particularly).

Content of reasons – If there is a duty to give reasons, how much information must be provided to meet
that duty? The requirement is for adequate reasons, and adequacy will depend on the context. Generally,
an ADM will be required to address the principal issues, provide a review of evidence, and set out its
reasoning process and the basis on which conclusions were reached, including findings on important
issues of fact. If credibility is at issue, it may be necessary to explain why the ADM accepted or did not
accept the evidence of witnesses.
      In Baker however, the SCC indicated that the duty to give reasons may be met quite informally.
        The SCC held that the Dept of Immigration had met its duty to give reasons by providing the
        informal notes of an immigration officer, where another officer‘s decision (refusing to grant an
        exemption from the statutory requirement to apply for permanent residency from outside Canada)
        was based on these notes. It should be noted that ―adequate‖ reasons are not necessarily ―good‖
        or ―acceptable.‖ Reasons are adequate if they reveal the ADM‘s reasoning process; however, if
        there are flaws in that process, this may lead to a successful challenge on either procedural or
        substantive grounds.
      Thus, in Baker, the immigration officer‘s notes were adequate to meet the requirement that
        reasons be given, but the decision was quashed because the reasons revealed bias, as well as
        substantive error.

Suresh
Note this case where the duty to give reasons was addressed as part of a s. 7 procedural analysis
(―informed by‖ the common law duty of fairness). The reasons for the decision in issue – deportation to
face possible risk of torture – were required to ―articulate and rationally sustain‖ the bases of decision and
to ―emanate from the person making the decision rather than take the form of advice or suggestion.‖
     In this case, substantial reasons were necessary, and they must emanate from the person making
        the decision.

VIA Rail Canada Inc v National Transportation Agency, [2001] FC,
There was an appeal from the decision of the National Transportation Agency that held a portion of VIA
Rail‘s Tariff constitutes an undue obstacle to the mobility of persons with disabilities. The reasons given
by the agency were found to be inadequate. The Act itself doesn‘t impose a duty to provide reasons, but
the National Transportation Agency General Rules do (reasons given in writing in this case). What
constitutes adequate reasons will depend on the circumstances. The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a
conclusion.
      Rather, the decision-maker must set out its findings of fact and the principal evidence upon which
          those findings were based. In the case at bar, the Agency‘s reasons do not reveal sufficient
          indicators of the reasoning process it followed in interpreting the term ―undue‖ (no definition of
          ―undue‖).
In summary, the Agency failed to provide sufficient insight into the reasoning process that it followed or
the factors that it considered in determining that any obstacle provided by the tariff was undue. In so
doing, it erred in law. Note the effect of breach of the duty to give reasons – when there is a legal duty to
give reasons a court will generally regard the duty as mandatory, in the sense that if a tribunal refuses or
fails to give reasons for a decision, it may be required by an order of mandamus to do so. The trend in
Canada in the most recent case law is that a decision that is not accompanied by adequate reasons
may be set aside an erroneous in law.

Agency guidelines – some admin agencies make extensive use of guidelines on the interpretation of their
enabling legislation and the exercise of their statutory discretion. Here we are concerned with the tension

                                                     41
between the ―due process‖ value represented by the principle that judicial decision makers should be
independent and the ―bureaucratic‖ value that, as governmental institutions responsible for the delivery of
public programs, admin agencies should adopt measures to ensure that their decisions are coherent,
thoughtful, and consistent.




    C. Impartiality and independence

Bar materials on impartiality:

An integral component of the duty of fairness and the principles of fundamental justice is that the
decision must be made by an impartial and independent decision maker. This not only includes
having a ―cause‖ but is also concerned with associations that are likely to produce predispositions
(professional, familial, etc). The courts generally ask whether the particular situation of the decision
maker is such as to give rise to a sufficient risk that an impermissible degree of bias will in fact exist.
     The public is entitled to have confidence in the impartial resolution of disputes and that
        confidence is undermined when the facts are such as to create an impression in the public mind
        that a decision maker is too predisposed toward a particular outcome.

Impartiality vs. independence - Although there is obviously a close relationship between independence
and impartiality, they are nevertheless separate and distinct values or requirements.
    1. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the
        parties in a particular case. The word ―impartial‖ . . . connotes absence of bias, actual or
        perceived.
    2. The word ―independent‖ in s. 11(d) reflects or embodies the traditional constitutional value of
        judicial independence. As such, it connotes not merely a state of mind or attitude in the actual
        exercise of judicial functions, but a status or relationship to others, particularly to the executive
        branch of government that rests on objective conditions or guarantees (per de Grandpre J in
        Committee for Justice and Liberty v National Energy Board [1978] 1 SCR).

        Impartiality

An impartial ADM is one that is neither biased nor seen to be biased. Thus, actual bias, or ever a
reasonable apprehension of bias, disqualifies an ADM, because the ADM will be perceived as unable to
be sufficiently even-handed as between the parties before it. As explained below, the actual standards
applied may depend on the circumstances of the case, including whether the function of the ADM is
classified as adjudicative, regulatory, or legislative:

Adjudicative functions – where an ADM is shown to have a material interest in the outcome of an issue,
or where there is a reasonable apprehension of bias, the ADM is disqualified. Disqualification on the basis
of material interest is based on the maxim that no person shall be a judge in his or her own cause, and
according to the HL ―that is not to be confined to a cause in which he is a party, but applies to a cause in
which he has an interest‖ (Dimes v Proprietors of the Grand Junction Canal (1852) (HL)). The
reasonable apprehension of bias test is found in Committee for Justice and Liberty v National Energy
Board, [1978] 1 SCR: ―what would an informed person, viewing the matter realistically and
practically – and having thought the matter through – conclude?‖
     Depending on what factors raise the apprehension of bias, they may be labelled as raising
        concerns regarding individual impartiality or concerns regarding institutional impartiality.

                                                      42
A reasonable apprehension of individual bias is raised when the concerns relate to the attitudes or
characteristics of the ADM in question, such as:
      Attitudinal bias or antagonism toward one of the parties (for instance, in the context of a labour
          arbitration, if the arbitrator was known to have made consistently anti-union or anti-
          management comments);
      Prior association between the ADM and one of the parties (for instance, if the ADM is related
          to, or close friends with, or perhaps even had a previous professional relationship with one of
          the parties appearing before it (Turpin v Wilson, (1995) (On SC)).

A reasonable apprehension of institutional bias is raised when the way in which the ADM carries out its
duties would make the reasonable bystander question whether the ADM could decide fairly as between
the parties.
     This arises most frequently in the context of overlapping functions. For instance, if the same
         person investigates a complaint and decides that there is sufficient merit in the complaint to
         proceed, and then adjudicates the complaint, it might be feared that this person, having found
         merit in the complaint, will be too ready to side with the complainant at the hearing.
On defence to an allegation of reasonable apprehension of bias based on overlapping functions is that the
dual role being complained of is clearly (expressly or implicitly) authorized in the enabling legislation
(Brousseau v Alberta (Securities Commission), [1981] 1 SCR).
     Thus, if the ADM is carrying out its functions in strict accordance with the enabling legislation,
         an allegation of reasonable apprehension of bias should not be successful, unless the legislation
         itself is subject to a successful constitutional challenge.
     The impact of a successful con challenge, in removing the defence of statutory authorization, is
         seen in McBain v Canadian HR Commission, (1985) (FCA). There, the provisions in federal
         human rights legislation for the appointment of human rights tribunals were found to violate the
         Bill of Rights and therefore although the process was statutorily authorized, the allegation of
         reasonable apprehension of bias was upheld.
When there is an allegation of institutional bias, it is not simply a matter of one or more individuals
asking themselves: is it appropriate for me to decide this particular matter? Instead, the ADM as a whole
must consider whether it needs to change the way in which it carries out its duties – for instance does it
need to put safeguards in place to ensure that one person cannot act as both complaint investigator and
adjudicator on the same file?

Regulatory and legislative functions – the standard for determining whether the duty of impartiality is
met in a particular case may depend on:
     1. the nature of the decision maker (elected official, interest group representative, political
         appointee),
     2. the nature of the decision (legislative, regulatory, adjudicative), and
     3. the stage of decision (investigative vs. adjudicative).
Where an ADM is carrying out a legislative or policy function but is required by statute to hold a hearing
in the course of those functions (i.e. municipal councillors passing or amending by-laws), the hearing
must be impartial. However, the test for reasonable apprehension of bias is noticeably different from that
applied in the adjudicative setting:
      with regard to legislative or policy decisions, it is the “closed mind test” which is relevant.
         Thus, reasonable apprehension of bias will exist in the legislative or policy setting only if it
         can be shown that the decision maker had completely made up its mind, and could not have
         been persuaded to a different view (Old St Boniface Residents Association Inc v Winnipeg,
         [1990] 3 SCR).



                                                    43
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992]
1 SCR
The ―closed mind‖ test was applied to evaluate statements made by a member of a regulatory board
expressing his view of the matter in issue before and after the matter had been set down for a hearing. The
statements made before the hearing was set down were evaluated on the ―closed mind‖ standard (at that
stage the member was treated like a municipal councillor, expected to have strong views on matters of
policy); however, the statements made after the hearing was set down were evaluated on the more
stringent ―reasonable apprehension of bias‖ test.


Imperial Oil Ltd v Quebec (Minister of the Environment), [2003] 2 SCR
This case addressed the application of the duty of impartiality to an exercise of ―discretionary political
power‖ under environmental protection legislation. The Court affirmed that the duty of impartiality, ―like
that of all of the rules of procedural fairness, may vary in order to reflect the context of a decision-makers
activities and the nature of its functions.‖ Despite the Minister‘s prior involvement in the matter in issue,
the impact of his decision on ongoing litigation involving the government and its impact on government
costs, the Court held that the Minister should not face disqualification for lack of impartiality, as he held
no personal interest in the matter. More generally, this decision was deemed to conform to the Minister‘s
statutory duty to make political decisions in the public interest.

        Text readings on bias:

Pecuniary and other material interests: the common law has always treated a direct pecuniary or other
material interest in the outcome of a matter as disqualifying an adjudicator or decision maker
automatically (Dimes – the Lord Chancellor owned shares in the company who was a party in the
proceedings). Our illustrative modern case is:

Energy Probe v Canada (Atomic Energy Control Board)
AECB renewed an operating licence for a nuclear generating stated operated by Ontario Hydro, and
Energy Probe made some objections, including an objection to participation by one board member (who
was alleged to support nuclear energy). Thus, its challenge was to material interest. All parties agree that
the licensing is an admin function. Therefore, the doctrine of fairness (from Nicholson) applies to AECB
licensing decisions. I have no doubt that the duty to act fairly must include a requirement for an unbiased
decision maker. On the facts, only pecuniary bias has been alleged.
      There was no direct interest here at the date of the hearing. Mr O did not stand in a direct and
         certain relationship with Ontario Hydro at the date o the licensing decisions.

As noted in Energy Probe, the test applied for the determination of whether an adjudicator or other
decision maker should be disqualified is that of a reasonable apprehension of bias. It comes from
Committee for Justice and Liberty: ―the apprehension of bias must be a reasonable one, held by
reasonable and right-minded people, applying themselves to the question and obtaining thereon the
required information. In the words of the CA, that test ―what would an informed person, viewing the
matter realistically and practically – and having thought the matter through – conclude?‖ Whatever test is
used to establish whether disqualifying bias is present, there are certain interests that traditionally have
been seen as giving rise to disqualification:
    1. kinship,
    2. friendship,
    3. partisanship,
    4. particular professional or business relationship with one of the parties,
    5. animosity towards someone interested, and
    6. predetermined mind as to the issue involved (Re Energy Probe). Let‘s break these down:

                                                      44
    (1) Antagonism during the hearing
This refers to antagonism during a hearing by a decision maker toward a party or his counsel or witnesses.
This gives rise to a reasonable apprehension of bias. There might be unreasonable aggressive question or
comments about testimony (Gooliah v Canada), or an attitude toward the issue to be decided (see Yusuf
where members of a panel of the Immigration and Refugee Board had engaged in harassing cross-
examination and even made sexist comments).
     As seen in Baker, antagonism may also be a problem in written or paper hearings.
     In Baker, the evidence of that antagonism was found in the memorandum on which the
        decision was based.
This requirement of balanced and proper behaviour during the hearing is not confined to the designated
decision makers but also reaches lawyers who are employed to assist a tribunal at the hearing. The
principle concern in many of these cases is the creation of an impression that the decision-making
function of the tribunal has been taken over by counsel and the language frequently used is the broader
concept of an ―appearance of unfairness‘ rather than simply of bias (see Bret v Ontario Board of
Directors of Physiotherapy and Adair v Ontario Health Disciplines Board).

     (2) Association between party and decision maker
Marques v Dylex Ltd (1977)
Here an employer challenged a decision of the Ontario Labour Relations Board to certify a union because
one of the members of the board, who had been a lawyer before his appointment, had been a member of a
firm that acted for a union that became part of the union that was certified. The challenge, however,
failed. Almost a year had elapsed since his connection with the law firm terminated.
      Most, if not all of those appointed, are bound to have some prior association with parties coming
         before the Board. In contrast see...

Ontario Hydro v Ontario (Ontario Energy Board) (1994)
Here the court held that the Energy Board could not employ as its counsel at an Ontario Hydro hearing a
lawyer who had acted for Hydro in the annual rate hearing between 1976 and 1986. Ontario Hydro itself
made the application not because they feared bias, but a conflict of interest to the potential detriment of
the lawyer‘s former client.

    (3) Involvement of decision maker in earlier stage of process
Committee for Justice and Liberty
This case is one which spans bias by reason of association with a party and involvement in an earlier
stage of the process. Some of the participants in the hearing claimed that this apparent commitment to a
pipeline created a reasonable apprehension of bias (SCC agreed). Mr Crowe participated in working out
some of the terms on which the application was later made and supported the decision to make it. An
application was made under s. 44 of the National Energy Board Act to the National Energy Board by a
company for construction of a natural gas pipeline. The chairman of the board at the time of the
application was Crowe. He had been involved in prior discussions of the pipeline before he became a
member of the Board.
     The more usual situations of prior involvement are ones in which a decision maker has in the
         same or another capacity already heard the matter before the tribunal (rehearing after successful
         JR or appeal or sitting in appeal from a decision in which one has participated) or been involved
         in the investigation and decisions to proceed with the matter being heard.
The most obvious problem for appeals is that a person makes the initial decision and then hears the
appeal, either alone or as part of an appeal tribunal (this creates a reasonable apprehension of
bias). Contrary to Law Society v French and Emerson v Law Society (professional disciplinary cases),
there is no longer any overlap of membership between the Proceedings Authorization Committee and the


                                                     45
Hearing Panel (Law Society Act amendment where the adjudicative role of convocation disappeared).
There are now the 2 mentioned groups, plus an Appeal Panel.

Statutory authorization – one of the most common responses to an allegation of bias by reason of prior
involvement is that of statutory authorization. We‘ll look at this before (4) attitudinal bias. The two main
cases deal with securities commissions.

Brosseau v Alberta (Securities Commission) [1989] 1 SCR
     Overlap of functions – security commission
Here B contended that a reasonable apprehension of bias arose from the fact that the Chairman, who had
received the investigative report, was also designated to sit on the panel at the hearing of the matter. He
objects to the Chairman‘s participation at both the investigatory and adjudicatory levels. The main maxim
translates into:
     ―no one ought to be a judge in his own cause.‖
     Did the Chairman, in acting as both investigator and adjudicator in the same case, create a
         reasonable apprehension of bias? Usually this would be so, but there are (as with any rule)
         exceptions.
One exception is where the overlap is provided for by statute (assuming the statute is constitutional). The
judge believes that the Act contemplates the involvement of the Chairman at several stages of
proceedings. Securities commissions, by their nature, undertake several different functions. They are
involved in overseeing the filing of prospectuses, regulating the trade in securities, registering persons
and companies who trade in securities, carrying out investigations, and enforcing the provisions of the
Act. By their nature, they will have repeated dealings with the same parties.
     In recent times, this has spawned a classification of bias cases on the basis of whether they
         involve an allegation of bias against an individual or the decision-making process itself.

2747-3174 Quebec Inc v Quebec (Regie des permis d‘alcool), [1996] 3 SCR
      Institutional bias
      Overlap of administrative functions
The regie revoked the company‘s liquor permits for violations of the statute (this case involves
institutional bias). The company sought declaration that various provisions of the Quebec liquor licensing
statute were invalid in terms of s. 23 of the Quebec Charter (independent and impartial tribunals). Did the
operational structure of the regie give rise to a reasonable apprehension of bias? There may be bias on an
institutional level.
      If the system is structured in such a way as to create a reasonable apprehension of bias on an
         institutional level, the requirement of impartiality is not met.
      The determination of institutional bias presupposes that a well-informed person, viewing
         the matter realistically and practically, and having thought the matter through would have
         a reasonable apprehension of bias in a substantial number of cases (Ruffo 1995 SCR per
         Lamer CJC).
The Act authorises employees of the Regie to participate in the investigation, the filing of complaints, the
presentation of the case to the directors and the decision. Note that the Court has already suggested that
such a multifunctional structure does not in itself always raise an apprehension of bias (Brosseau).
      In my view, an informed person having thought the matter through would in this regard have a
         reasonable apprehension of bias in a substantial number of cases (the Act provides for the same
         people throughout all the stages).
      In matters of institutional bias, it is the reasonable apprehension of the informed person
         that we must consider and NOT the proven or presumed existence of an actual conflict of
         interest.
      The fact that the Regie institution participates in the process of investigation, summoning and
         adjudication is not in itself problematic. However, the possibility that a particular director could,

                                                      46
      following the investigation, decide to hold a hearing and could then participate in the decision-
      making process would cause an informed person to have a reasonable apprehension of bias in a
      substantial number of cases.
     There needs to be some separation! (Contrast this case with Brosseau, why allow the overlap
      there but not here?) However, note in the Regie case, the court was of the view that the problem
      of institutional bias was NOT a statutory one but could be dealt with internally by changing the
      way in which the regie operated.

MacBain v Canada (HR Commission) (1985) (FCA) (resurrected the Bill of Rights)
Here the problem WAS statutory, and the court couldn‘t therefore simply tell the tribunal to restructure
the way in which it operated. This involved a complaint under the Canadian Human Rights Act against
M. He sought declaration that the legislation violated the Charter and the Bill of Rights because the
arrangements specified by the Act for appointment of the tribunal created an apprehension of bias.
According the Act, the Commission investigated, made findings of substantiation, and then prosecuted
this complaint; the very same Commission also appointed the Tribunal members who heard and decided
and decided the case adversely to the applicant. The applicant argued that this gives rise to a reasonable
apprehension of bias thereby violating the principles of natural justice.
      The apprehension of bias exists here because there is a direct connection between the prosecutor
        of the complaint (the Commission) and the decision maker (the Tribunal). After considering a
        case and deciding that the complaint has been substantiated, the ―prosecutor‖ picks the Tribunal
        which will hear the case.
      It is my opinion that even if the statute only required the Commission to decide whether there was
        sufficient evidence to warrant the appointment of the Tribunal, reasonable apprehension of bias
        would still exist.
MacBain was an important case in the resurrection of the Bill of Rights as a vehicle for challenging
the validity of statutory schemes on the basis that they did not conform to the principles of
fundamental justice.

    (4) Attitudinal bias
Paine v University of Toronto (1980)
P brought an application for JR following his denial of tenure (he was assistant professor). The
Committee met and decided to recommend denial of tenure and termination of the Candidate‘s
appointment. The Chairman of the Tenure Committee appointed to it a tenured senior member of the Dept
of Fine Arts who had submitted a thoroughly negative assessment of Mr Paine‘s merits as an instructor.
The application was granted by the On Divisional Court, but the appeal was allowed by the University by
the Court of Appeal. The Div Court found that there was unfairness in the presence on the tenure
committee of a member who, as a referee, had submitted a thoroughly negative assessment of P. P
appealed to the Tenure Appeal Committee on all the grounds available, specifically complaining of the
presence on the tenure committee of the member who had written the unfavourable assessment. The
tenure appeal committee, and a second tenure appeal committee appointed by the president of the
university, rejected all grounds of appeal.
     Was P treated with such manifest unfairness as to call for intervention from the Court? ―I think
        this is NOT a case where the Court should intervene to substitute its own views for those of the
        review committee.‖ The appeal was allowed (by the university).
     This is not, in my view, the exceptional case in which there is a manifest error on the part of the
        appeal tribunals nor is it a flagrant case of injustice at any level of the proceedings which
        demands that the Court interfere (the respondent at two university tenure appeal committee
        hearings, the second one with a different chairman from the first and in which the respondent had
        the assistance of counsel!)



                                                   47
To what extent should attitudes toward the enforcement of anti-discrimination protections in general and
the evolution of specific areas of HR law in particular lead to exposure to challenge based on a reasonable
apprehension of bias?

Great Atlantic & Pacific Co of Canada v Ontario (HR Commission) (1993)
      Advocate that became a board member – bias
Here it was alleged there was bias on the part of Miss Backhouse as the Board appointed to hear and
decide the complaints in issue. She was an advocate involving sex discrimination. She was a university
prof who wrote extensively on sex discrimination. She filed a complaint with the Commission in 1987
that Osgood and York discriminated based on sex. There was no formal settlement, and the complaint is
―outstanding.‖ In 1992 she wrote the Commission requesting her name to be removed as a complainant to
the case.
      In our view, the unique aspect of this case is that Miss Backhouse went beyond the position of an
        advocate and descended personally, as a party, into the very arena over which she had been
        appointed to preside in relation to the very same issues she has to decide (very unique
        circumstances and facts).
      By becoming a personal complainant before the very commission that was prosecuting the similar
        case before her, she personally selected one of the parties before her as her own advocate to
        pursue her personal complaint about the same issue.
Because there is a reasonable apprehension of bias, the application of the Union is allowed and the
proceedings before the Board are quashed. The Minister is at liberty to appoint another board to
adjudicate the remaining complaints against the Union if so request to do so. (I guess the principle is that
you can‘t appoint advocates to a Human Rights Tribunal!) But see the earlier case of....

Large v Stratford (City)
This case suggested that some views were possible to hold as an adjudicator. This involved a view to
mandatory retirement. ―These comments do not violate the standards of admin neutrality. HR inquiry
boards are drawn from those who have some experience and understanding of HR issues.
     To exclude everyone who ever expressed a view on HR issues would exclude those best qualified
        to adjudicate fairly and knowledgeably in a sensitive area of public policy.‖

Old St Boniface Residents Association Inc v Winnipeg (City), [1990] 3 SCR
      Prejudgement and ―interest‖ are NOT the same thing
      Closed mind test
S, a municipal councillor, was involved from the start in a movement through the municipal approval
process for a residential development that required a change of zoning. He had been one of the city‘s
representatives which discussed the plans with the developer. He spoke in camera at a finance committee
meeting (which he was not a member of). After the development has been given the okay, S was a
member of the community committee for other discusses related to the project.
      During these meetings, the association, having learned of S‘s appearance before the finance
         committee, had asked him to withdraw from further participation but S had declined.
      The role of a municipal councillor is quite different from that of a Chairman of the National
         Energy Board (they do not have political or legislative duties).
      I would distinguish between a case of partiality by reason of pre-judgement on the one hand and
         by reason of personal interest on the other.
It is apparent from the facts of this case, for example, that some degree of prejudgement is inherent in
the role of a councillor. That is NOT the case for an interest. There is nothing inherent in the function
of a councillor that would make it mandatory or desirable to excuse them from the requirement that they
refrain from dealing with matters in respect of which they have a personal or other interest (they would in
the latter case be disqualified for conflict of interest).


                                                    48
       In the case of a councillor, no bias will arise unless there is some indication that the position
        taken before vote is incapable of change.
       The fact that the councillor appeared for a financial committee does not mean that is mind could
        not be changed.
       There is also no indication of a relationship with the developer.
       He had no personal interest in the project, therefore the apprehension of bias test should not have
        been applied.

Save Richmond Farmland Society v Richmond (Township), [1990] 3 SCR
      Inconsistent with other ―closed mind‖ cases
M campaigned for office in part as being in favour of rezoning land for some development. He then voted
in favour of two bylaws that would have rezoned the lands to being predominantly residential.
      M said at an interview that while he would listen attentively at the public hearing, he would not
         change his mind.
SRFS petitioned for JR for an order preventing M from voting and further participation because of a
disqualifying reasonable apprehension of bias.
      A closed mind (provided it is not a corrupt mind) should not disentitle a councillor from
         participating in the electoral process.
It must be assumed that the Legislature will have been well aware of the fact that the very councillors
who are called on by statute to make to final decision on zoning by-laws will often have run for office on
the strength of their support or opposition of these measures. If this seemingly guarantees that zoning
applications of this nature are decided before ever reaching the hearing stage, this inconsistency should be
for the Legislature to iron out, and not the courts.
      Also, this is a matter of policy. The threshold test for establishing bias should be a high one here.
         (The previous two cases show that there is a divide between the SCC on the issue of councillors,
         bias, and prejudgement not of ―open mind‖).

Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992]
1 SCR
Case concerns the extent to which an admin board member may be permitted to comment upon matters
before the board. Earlier, while a councillor, W had acted as an advocate for consumer rights.
      When he was appointed, W publicly stated that he intended to play an adversarial role on the
         Board as a champion of consumers‘ rights. Before a hearing of the Telephone Company, W made
         comments to the Sunday Express newspaper stated that the benefits package of the appellant‘s
         executives was ―ludicrous‖ and ―unconscionable.‖
When the hearing commenced, the appellant objected to W participating on the panel of the grounds that
his statements had created an apprehension of bias. The board continued because there was nothing in the
Act to allow it to rule on its own members (said it didn‘t have jurisdiction). More comments by W were
made to press, which was before the Board released its decision on the matter.
      Adjudicative boards will be held to higher standard than the boards with popularly elected
         members dealing with planning and development whose members are councillors.
      With those boards, the standards will be much more lenient.
      Admin Boards that deal with matters of policy will be closely comparable to the boards
         composed of municipal councillors. For those boards, a strict application of reasonable
         apprehension of bias as a test might undermine the very role which has been entrusted to them by
         the legislature. The decision-making process of this Board will come closer to the legislative end
         of the spectrum of admin boards than to the adjudicative end.
      The statements made by W before the haring did not indicate that he had a closed mind (on the
         facts, even using colourful words didn‘t indicate a ―closed mind,‖ expressly closed mind seems to
         be required).

                                                    49
     HOWEVER, once the matter reaches the hearing stage a greater degree of discretion is required
      of a member. The statements of Commissioner Wells made during and subsequent to the hearing,
      viewed cumulatively, lead inexorably to the conclusion that a reasonable person apprised of the
      situation would have an apprehension of bias.
     The later comments indicated a ―closed mind.‖ Once the hearing was underway, more is expected
      of the board members. Despite the more lax approach for matters of policy than adjudicative
      boards, W‘s comments were extreme, and the hearing proceeded unfairly.

        Independence
        Bar materials

     Independence relates to the ability of the ADM to decide free from outside pressure,
     Impartiality relates to the ADM‘s ability to remain neutral as between the parties.

Where independence is at issue, the question is whether the decision maker is assured the
―adjudicative freedom‖ to decide matters free from outside interference. Usually (but not always) the
threat of outside interference is seen as coming from the level of government which established the ADM
(Canadian Pacific Ltd v Matsqui Indian Bank, [1995] 1 SCR). The concept of independence for ADM‘s
draws on the jurisprudence on judicial independence, particularly a 1985 decision of the SCC that
identified the requirements for judicial independence as ―security of tenure, financial security, and
institutional independence of the tribunals bearing on the exercise of its function‖ (R v Valente, [1989]
(SCC)).
      However, the courts have been clear in stating that the independence required of ADM‘s is not
         equivalent to that required of the judiciary. Thus, if the level of pay for members of an ADM
         were determined after each hearing on an ad hoc basis, this might lead to the perception that
         members could be pressured by government to decide in a particular way, or risk getting a
         smaller paycheque. The argument would be that the ADM lacked sufficient financial security to
         enable it to operate independently of government.

Similarly, very short-term appointments with a chance of reappointment might lead to the concern that
members of the ADM would be tempted to decide issues in ways favourable to the appointing
government, to increase the chance of being reappointed. However, common law protections of admin
independence may be displaced by express statutory authorization (Ocean Port Hotel Ltd v BC (General
Manager, Liquor Control and Licensing Branch), [2001] 2 SCR).

    Judicial Independence Text

Historically, the generally accepted core of the principle of judicial independence has been the
complete liberty of individual judges to hear and decide cases that come before them; no outside –
be it government, pressure group or even another judge – should interfere in fact, or attempt to
interfere, with the way in which a judge conducts his or her case and makes his or her decision
(Dickson CJ in R v Beauregard, [1986]).

Alex Couture Inc v Canada (AG) (1991) (Que CA)
This case discussed judicial independence. It discusses judicial independence as a con guarantee for the
purposes of 11(d) on the Charter, which has been interpreted as referring to the status or relationship of
judicial independence as well as to the state of mind or attitude of the tribunal in the actual exercise of its
judicial function (same test as in Liberty). According to Le Dain J in Valente [1985], three essential
conditions must be met for judicial independence:
    (1) security of tenure,
    (2) financial security, and

                                                      50
     (3) institutional independence of the tribunal with respect to admin decisions bearing directly on the
         exercise of its judicial functions.
These minimal conditions which arise from the status or collective independence of the judge are in
addition to the individual aspect of judicial independence which is reflected in the state of mind or
attitude of the court in the exercise of its judicial functions in a particular case. A tribunal which lacks the
objective status or relationship of independence cannot be considered independent within the meaning of
s. 11(d), regardless of how it may appear to have acted in the particular adjudication.
      Security of tenure is the most important essential condition of judicial independence for the
         purposes of s. 11(d). That is, tenure that is secure against interference by the executive or other
         appointing authority in a discretionary or arbitrary manner.
      Secondly, there is financial security which Le Dain J in Valente stated ―is that the right to salary
         and pension should be established by law and not be subject to arbitrary interference by the
         executive in a manner that could affect judicial independence.
On the facts, the salaries were fine ($82,000 to $96,500 (in 1982!)).
      Institutional independence is the third condition for the purposes of s. 11(d), which relates to
         institutional independence of the tribunal with respect to matters of admin bearing directly on the
         exercise of its judicial function.
The superior court judge (at first instance) held that the Competition Tribunal did not meet this condition
because of the close connection existing between Mr R and the executive branch of government. R held,
and continues to hold the office of a member of the former Restrictive Trade Practices Commission. With
respect to the possibility that R will hear, as a member of the tribunal, a matter with which he has already
been seized as a member of the commission and in respect of which he had made an inquiry, is purely
hypothetical; should that happen, an application can be made for his disqualification.
      On the facts here, a well informed person would be of the view that there is no reason to
         apprehend that the Tribunal would not feel totally free to render its decisions and that it therefore
         has the guarantee of independence required for the purposes of s. 11(d). Individual partiality or
         bias in NOT alleged in this case.

NOTE: as with the case of bias or impartiality, if the relevant statute clearly authorizes the existence of a
statutory scheme that does not meet appropriate standards of independence for the tribunal in question,
there will be no remedy available unless those affected can rely on a constitutional or quasi-constitutional
argument (Ocean Port Hotel Ltd, 2001 SCR). Finally, see

2747-3174 Quebec v Quebec (Regie des permis d‘alcool)
where, after finding that the way the regie operated in practice led to a reasonable apprehension of bias in
an institutional sense, the court went on to deal with the further argument of lack of independence. In this
case, there were specific clauses to protect their security of tenure. The directors could also apply to the
ordinary courts to contest an unlawful dismissal if need be. With regards to institutional independence,
     the judge did not buy the argument that there were too many points of contact between the Regie
         and the Minister of Public Security. It is not unusual for an admin agency to be subject to the
         general supervision of a member of the executive with respect to its management.
Le Dain stated in Valente that the essential elements of institutional independence may be summed
up as judicial control over the admin decisions that bear directly and immediately on the exercise of
the judicial function.
     It has not been shown that the Minister might influence the decision-making process. The fact
         that an impartiality oath was made was brought up here as well.

         Summary/Standard of review
To summarize thus far, where the procedure to be followed by an ADM is not fully set out in the enabling
legislation, an ADM may be required to make various choices about procedures in the course of carrying


                                                      51
out its administrative functions. Whether those procedural choices might be successfully challenged on JR
engages a number of questions:
      whether a particular function of the ADM is over the common law threshold such that a duty of
          fairness applies, or over the con threshold, such that the principles of fundamental justice apply
      if the duty of fairness or the principles of fundamental justice do apply, what procedural
          entitlements that crates (i.e. the content of duty of fairness or principles of fundamental justice in
          that context)
      whether the deliberative process followed by the ADM is in keeping with the duty of fairness or
          the principles of fundamental justice
      whether an allegation of bias or lack of independence has merit, such that the ADM should
          withdraw or reconstitute itself

Where an ADM‘s decision of one of the above questions is challenged, the issue arises as to whether the
court should rigorously review the ADM‘s decision, or should take a more deferential stance. This issue
of ―standard of review‖ tends to be discussed at great length by the courts where an ADM‘s decision is
challenged on substantive grounds; however, when the issue is procedural review, there is far less
discussion of this point. The traditional approach has been that the court will require the ADM to have
made whatever the court determines to have been the correct decision (often, a determination that reflect
the judiciary‘s will to guard the procedural protections developed in the court setting). Although there are
a few instances where the courts have suggested some deference on procedure (Re Paine and University
of Toronto, (1981) (Ont CA)), in most cases procedures appear to be evaluated on a standard of
correctness. That said, Baker’s formulation of contextual factors to assist in determining the requirements
of procedural fairness (particularly the 5th factor, requiring consideration of the choices and expertise of
the agency on matters of procedure) may be regarded as a step toward approaching allegations of
procedural error as the courts now approach allegations of substantive error: by first determining which
standard of review should apply (in other words, by deciding how rigorously the ADM‘s decision should
be scrutinized, or what level of deference should be accorded in light of the ADM‘s expertise).

Note that where the allegation is that an ADM failed to follow the principles of fundamental justice
(assuming the s. 7 Charter threshold has been met), courts not only have to consider whether the
principles of fundamental justice were violated (a question of con law importing a correctness standard –
though again note that the Baker contextual factors inform the content of the principles of fundamental
justice (Suresh)), but also whether this can be upheld under s. 1.

     Consequences of Procedural breach
If courts find a breach of the common law duty of fairness, or a breach of s. 7 of the Charter (which is not
justified under s. 1), this will usually cause the court to quash the decision. Occasionally a case will
suggest that this should be done only if it can be shown that adherence to correct procedure would have
been likely to affect the outcome (Hundal v Superintendent of Motor Behicles, (1985) (BCCA)), but the
more usual perspective places an emphasis on ADM‘s functioning correctly irrespective of the impact on
the outcome: ―the denial of a right to a fair hearing must always render a decision invalid, whether or not
it may appear to a reviewing court that the hearing would likely have resulted in a different decision‖
(Cardinal v Director of Kent Institution, [1985] 2 SCR). It should be borne in mind however, that the
prerogative remedies are discretionary and therefore reprehensible behaviour by the party claiming the
procedural breach may lead the court to refuse the remedy outright (Homex Realty and Development Co
Ltd v Village of Wyoming, [1980] 2 SCR).


SUBSTANTIVE REVIEW



                                                      52
The standard of review
When the courts are asked to review determinations of questions of law, fact, or mixed law and fact made
by these decision makers, what approach should they bring to that task or what tests should they apply?

Privative or preclusive clauses – these clauses have typically been of some debate. A statutory direction
that the decisions of a particular tribunal are not to be questioned or reviewed in any legal proceeding
whatsoever challenges the pervasive assumption that it is ultimately the constitutional function of an
independent judiciary to determine the rights of individuals according to law. These clauses are especially
found in labour relations Acts.
     (i)     Firstly, it leads to massive delays.
     (ii)    Second, JR is expensive! Since employers have more money than employees, unrestricted
             access to the court would therefore confer an advantage on the employer and might well
             discourage the employee side from resorting to the Tribunal in the first place on the ground
             that a favourable decision was likely to be challenged and defending the decision in court
             would prove too expensive.
     (iii)   Third, the tribunals may be specialized, and designed specifically not to go to court since they
             possess more special knowledge than a court (workplace realities, labour relations policy,
             etc).

Dunsmuir v NB, [2008] – (per Bastarache and LeBell JJ) (para 1-16)
Most important Canadian Admin case to date – reformulated the standard of review analysis:

D held a position under the Civil Service act and was an office holder ―at pleasure‖ (Dept of Justice). D
was terminated after several reprimands and cause for termination was not alleged. D commenced the
grievance process under s. 100.1 of the Public Service Labour Relations Act (―PSLRA‖), alleging that the
reasons for the employer‘s dissatisfaction were not made known, that he did not receive a reasonable
opportunity to respond to the concerns, that the employer‘s actions in terminating him were without
notice, due process or procedural fairness, and that the length of the notice period was inadequate.
      The adjudicator‘s decision relied on Knight v. Indian Head School Division No. 19, [1990] 1
         S.C.R, for the relevant legal principles regarding the right of ―at pleasure‖ office holders to
         procedural fairness.
He declared that the termination was void ab initio and ordered the appellant reinstated as of August 19,
2004, the date of dismissal. The Province of New Brunswick applied for judicial review of the
adjudicator‘s decision on numerous grounds. In particular, it argued that the adjudicator had exceeded his
jurisdiction in his preliminary ruling by holding that he was authorized to determine whether the
termination was in fact for cause. The Province further argued that the adjudicator had acted incorrectly
or unreasonably in deciding the procedural fairness issue. In the view of the reviewing judge, the
adjudicator did not have jurisdiction to inquire into the reasons for the termination. His authority was
limited to determining whether the notice period was reasonable. Having found that the adjudicator had
exceeded his jurisdiction, the reviewing judge quashed his preliminary ruling. The appellant appealed the
decision of the reviewing judge.
      The Court of Appeal, Robertson J.A. writing, held that the proper standard with respect to the
         interpretation of the adjudicator‘s authority under the PSLRA was reasonableness simpliciter and
         that the reviewing judge had erred in adopting the correctness standard.


         Judicial Review and the lead up to Dunsmuir
Judicial review seeks to address an underlying tension between the rule of law and the foundational
democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create
various administrative bodies and endow them with broad powers.


                                                     53
     Courts, while exercising their constitutional functions of judicial review, must be sensitive not
         only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference
         with the discharge of administrative functions in respect of the matters delegated to
         administrative bodies by Parliament and legislatures.
Judicial review is the means by which the courts supervise those who exercise statutory powers, to
ensure that they do not overstep their legal authority. The function of judicial review is therefore to
ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.
     Thus, when a reviewing court considers the scope of a decision-making power or the
         jurisdiction conferred by a statute, the standard of review analysis strives to determine
         what authority was intended to be given to the body in relation to the subject matter.
This is done within the context of the courts‘ constitutional duty to ensure that public authorities do not
overreach their lawful powers: In essence, the rule of law is maintained because the courts have the last
word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of
review is accomplished by establishing legislative intent.

The legislative branch of government cannot remove the judiciary‘s power to review actions and
decisions of administrative bodies for compliance with the constitutional capacities of the government.
      Even a privative clause, which provides a strong indication of legislative intent, cannot be
         determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972).
The current approach to judicial review involves three standards of review, which range from
     1. correctness, where no deference is shown, to
     2. patent unreasonableness, which is most deferential to the decision maker, and
     3. reasonableness simpliciter lying, theoretically, in the middle.
In our view, it is necessary to reconsider both the number and definitions of the various standards of
review, and the analytical process employed to determine which standard applies in a given situation. We
conclude that there ought to be two standards of review — correctness and reasonableness (para
34). The existing system of judicial review has its roots in several landmark decisions beginning in the
late 1970s in which this Court developed the theory of substantive review to be applied to determinations
of law, and determinations of fact and of mixed law and fact made by administrative tribunals. In...

CUPE, Local 963 v. New Brunswick Liquor Corp, [1979] 2 S.C.R. Dickson J. introduced the idea that,
depending on the legal and administrative contexts, a specialized administrative tribunal with particular
expertise, which has been given the protection of a privative clause, if acting within its jurisdiction, could
provide an interpretation of its enabling legislation that would be allowed to stand unless ―so patently
unreasonable that its construction cannot be rationally supported by the relevant legislation and demands
intervention by the court upon review‖ (p. 237).

         The abolishment of the third standard of review
In Southam Inc., [1997] 1 S.C.R, a third standard of review was introduced into Canadian
administrative law. The legislative context of that case, which provided a statutory right of appeal from
the decision of a specialized tribunal, suggested that none of the existing standards was entirely
satisfactory. As a result, the reasonableness simpliciter standard was introduced. It asks whether the
tribunal‘s decision was reasonable. If so, the decision should stand; if not, it must fall.
      In Southam, Iacobucci J. described an unreasonable decision as one that ―is not supported by any
         reasons that can stand up to a somewhat probing examination‖ (para. 56) and explained that the
         difference between patent unreasonableness and reasonableness simpliciter is the ―immediacy‖ or
         ―obviousness‖ of the defect in the tribunal‘s decision (para. 57).
The defect will appear on the face of a patently unreasonable decision, but where the decision is merely
unreasonable; it will take a searching review to find the defect.
      The three standards of review have since remained in Canadian administrative law.


                                                      54
       The approach to determining the appropriate standard of review has been refined in
        Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
       Canada needs a simpler test!

         Reasonableness and Correctness defined/deference
We therefore conclude that the two variants of reasonableness review should be collapsed into a
single form of ―reasonableness‖ review.
      The result is a system of judicial review comprising two standards — correctness and
         reasonableness.
But the revised system cannot be expected to be simpler and more workable unless the concepts it
employs are clearly defined. Certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and
rational solutions.

        Reasonableness standard
     A court conducting a review for reasonableness inquires into the qualities that make a decision
        reasonable, referring both to the process of articulating the reasons and to outcomes.
     In judicial review, reasonableness is concerned mostly with the existence of justification,
        transparency and intelligibility within the decision-making process.
     it is also concerned with whether the decision falls within a range of possible, acceptable
        outcomes which are defensible in respect of the facts and law.
Deference is both an attitude of the court and a requirement of the law of judicial review. It does not
mean that courts are subservient to the determinations of decision makers, or that courts must show blind
reverence to their interpretations, or that they may be content to pay lip service to the concept of
reasonableness review while in fact imposing their own view.
     Rather, deference imports respect for the decision-making process of adjudicative bodies with
        regard to both the facts and the law. The notion of deference ―is rooted in part in a respect for
        governmental decisions to create administrative bodies with delegated powers‖ (Canada
        (Attorney General) v. Mossop.
     In short, deference requires respect for the legislative choices to leave some matters in the hands
        of administrative decision makers, for the processes and determinations that draw on particular
        expertise and experiences, and for the different roles of the courts and administrative bodies
        within the Canadian constitutional system.

      Correctness standard:
     When applying the correctness standard, a reviewing court will not show deference to the
      decision maker‘s reasoning process; it will rather undertake its own analysis of the question. The
      analysis will bring the court to decide whether it agrees with the determination of the
      decision maker; if not, the court will substitute its own view and provide the correct answer.
      From the outset, the court must ask whether the tribunal‘s decision was correct.

         Determining the appropriate standard of review
What is the method for determining these standards of review? The existence of a privative or preclusive
clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion
is appropriate because a privative clause is evidence of Parliament or a legislature‘s intent that an
administrative decision maker be given greater deference and that interference by reviewing courts be
minimized. This does not mean, however, that the presence of a privative clause is determinative. The
rule of law requires that the constitutional role of superior courts be preserved and, as indicated above,
neither Parliament nor any legislature can completely remove the courts‘ power to review the actions and
decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary

                                                    55
to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies
do not exceed their jurisdiction. Where the question is one of fact, discretion or policy, deference will
usually apply automatically (Suresh para 29-30). Deference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function, with which it will have particular
familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R (para
48). Deference may also be warranted where an administrative tribunal has developed particular expertise
in the application of a general common law or civil law rule in relation to a specific statutory context:
Toronto (City) v. C.U.P.E (para 72). Adjudication in labour law remains a good example of the relevance
of this approach.

A consideration of the following factors will lead to the conclusion that the decision maker should be
given deference and a reasonableness test applied:
     A privative clause: this is a statutory direction from Parliament or a legislature indicating the
        need for deference.
     A discrete and special administrative regime in which the decision maker has special expertise
        (labour relations for instance – CBC v Canada (Labour Relations Board)).
     The nature of the question of law. A question of law that is of ―central importance to the legal
        system . . . and outside the . . . specialized area of expertise‖ of the administrative decision maker
        will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other
        hand, a question of law that does not rise to this level may be compatible with a reasonableness
        standard where the two above factors so indicate. Findings of fact or credibility are generally
        due considerable deference (Dr. Q College of Physicians and Surgeons BC).

If these factors, considered together, point to a standard of reasonableness, the decision maker‘s decision
must be approached with deference in the sense of respect discussed earlier in these reasons. Correctness
review has been found to apply to constitutional questions regarding the division of powers between
Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National
Energy Board), [1998] 1 S.C.R. Such questions, as well as other constitutional issues, are necessarily
subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution:
Nova Scotia (Workers‘ Compensation Board) v. Martin, 2003 SCC, [2003] 2 S.C.R. As mentioned
earlier, courts must also continue to substitute their own view of the correct answer where the question at
issue is one of general law ―that is both of central importance to the legal system as a whole and outside
the adjudicator‘s specialized area of expertise‖ (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.).
Because of their impact on the administration of justice as a whole, such questions require uniform and
consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common
law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process — issues that
are at the heart of the administration of justice (see para. 15, per Arbour J.). In summary, the process of
judicial review involves two steps:

    1) First, courts ascertain whether the jurisprudence has already determined in a satisfactory
       manner the degree of deference to be accorded with regard to a particular category of
       question
    2) Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the
       factors making it possible to identify the proper standard of review.

We prefer to refer simply to the ―standard of review analysis” in the future (not pragmatic and functional
like in the past). The analysis must be contextual. As mentioned above, it is dependent on the application
of a number of relevant factors, including:
     (1) the presence or absence of a privative clause (silence of a privative clause is neutral and the
         stronger the privative clause the more deference owed – Dr. Q);


                                                      56
    (2) The purpose of the enabling statute as a whole, and of the particular section; here the court may
        consider, for example, whether the general function and the specific impugned decision of the
        ADM was primarily adjudicative (involving fact-finding, applying general standards to particular
        cases, or one party vs. the other), which goes against deference, or alternatively polycentric
        (agencies that balance different policy objectives, or interests of stake holders), which goes to
        deference. This may overlay with expertise because often these will tend to be experts in their
        field (i.e. does the labour relations legislation allow for collective bargaining? There may be a
        balance between the employer, union, and employee to maintain labour peace).
    (3) the nature of the question at issue (Pushpanathan said that questions of fact = more deference
        and questions of law = less deference. If it‘s mixed fact and law, ask whether it‘s more fact or
        more law intensive), and;
    (4) the expertise of the tribunal (Southan stated that this is the most important factor. Also looks at
        accumulated experience and whether members sit on the board for years – Dr. Q).
In many cases, it will not be necessary to consider all of the factors, as some of them may be
determinative in the application of the reasonableness standard in a specific case.

             What is the Standard of Review (on the facts of Dunsmuir)?
The specific question on this front is whether the combined effect of s. 97(2.1) and s. 100.1 of the PSLRA
permits the adjudicator to inquire into the employer‘s reason for dismissing an employee with notice or
pay in lieu of notice. This is a question of law. The question to be answered is therefore whether in light
of the privative clause, the regime under which the adjudicator acted, and the nature of the question of law
involved, a standard of correctness should apply.
     1. The inclusion of a full privative clause in the PSLRA gives rise to a strong indication that the
         reasonableness standard of review will apply (s. 101(1) PLSRA).
     2. The nature of the regime also favours the standard of reasonableness. This Court has often
         recognized the relative expertise of labour arbitrators in the interpretation of collective
         agreements, and counselled that the review of their decisions should be approached with
         deference: CUPE (pp. 235-36). The adjudicator in this case was, in fact, interpreting his enabling
         statute. Although the adjudicator was appointed on an ad hoc basis, he was selected by the
         mutual agreement of the parties and, at an institutional level, adjudicators acting under the PSLRA
         can be presumed to hold relative expertise in the interpretation of the legislation that gives them
         their mandate, as well as related legislation that they might often encounter in the course of their
         functions. The legislative purpose confirms this view of the regime. The PSLRA establishes a
         time- and cost-effective method of resolving employment disputes. It provides an alternative to
         judicial determination. Section 100.1 of the PSLRA defines the adjudicator‘s powers in deciding
         a dispute, but it also provides remedial protection for employees who are not unionized. The
         remedial nature of s. 100.1 and its provision for timely and binding settlements of disputes also
         imply that a reasonableness review is appropriate.
     3. Finally, the nature of the legal question at issue is not one that is of central importance to the
         legal system and outside the specialized expertise of the adjudicator. This also suggests that the
         standard of reasonableness should apply.

Considering the privative clause, the nature of the regime, and the nature of the question of law here at
issue, we conclude that the appropriate standard is reasonableness.

         Applying the Standard of Review
We must now apply that standard to the issue considered by the adjudicator in his preliminary ruling.
While we are required to give deference to the determination of the adjudicator, considering the decision
in the preliminary ruling as a whole, we are unable to accept that it reaches the standard of
reasonableness.


                                                     57
     The reasoning process of the adjudicator was deeply flawed. It relied on and led to a construction
        of the statute that fell outside the range of admissible statutory interpretations.
The adjudicator was required to take into account the legal context in which he was to apply the law. The
employment relationship between the parties in this case was governed by private law. The contractual
terms of employment could not reasonably be ignored. Where the employer chooses to exercise its right
to discharge with reasonable notice or pay in lieu thereof, the employer is not required to assert cause for
discharge. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for
discharge where the employer had the right not to provide — or even have — such reasons, the
adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment
contract and, thus, fatally flawed. For this reason, the decision does not fall within the range of
acceptable outcomes that are defensible in respect of the facts and the law.
     Therefore, the combined effect of s. 97(2.1) and s. 100.1 cannot, on any reasonable interpretation,
        remove the employer‘s right under contract law to discharge an employee with reasonable notice
        or pay in lieu of notice. The interpretation of the adjudicator was simply unreasonable in the
        context of the legislative wording and the larger labour context in which it is embedded. It must
        be set aside.

    Grounds

If there is a right of appeal in an ADMs enabling legislation, this will set out the grounds on which an
appeal may be brought; almost certainly on issues of law, and perhaps on issues of fact or mixed fact and
law. The Federal Court Act provides for JR of federal ADMs on substantive grounds in paragraphs
18.1(4)(a) (error of jurisdiction), 18.1(4)(c) (error of law), and 18.1(4)(d) (error of fact).

At common law the substance of an admin decision can be challenged on the grounds that the ADM made
an error of law, fact, or mixed fact and law, or that the ADM exercised its discretion improperly. It
remains essential to identify whether an ADMs enabling statute gives rise to an appeal to the courts or
whether the challenge must proceed by way of JR, and whether the basis of the challenge rests on an error
of law, fact, mixed law and fact, or discretion. These continue to be relevant for the selection of the
appropriate standard of review.


    Constitutional challenge to enabling legislation

The approach to JR or appeal where the issue decided by the ADM involves a con challenge to the
ADM‘s enabling legislation merits separate attention, because the jurisprudence indicates that before the
court can determine or apply the standard of review (as discussed above, likely a correctness standard), it
must first consider whether the ADM had the authority to decide such an issue.

The law on this point has undergone a significant shift in recent years. The leading authority is NS
(WCB) v Martin, [2003] 2 SCR. The background to Martin begins with a trilogy of cases decided in the
early 1990s, in which the SCC held that an ADM has the authority to decide on constitutional challenges
to its OWN legislation, if the enabling legislation expressly or impliedly authorizes the ADM to hear such
a challenge (Douglas College, Cuddy Chick Ltd, and Tetreault-Gadoury). Several years after the trilogy,
in Cooper v Canada (HR Commission), [1996] SCR, a majority of the SCC adopted a restrictive
interpretation of the trilogy, distinguishing between ―adjudicative‖ tribunals with authority to decide
―general questions of law‖ and ―purely administrative‖ tribunals that merely ―interpret and apply‖ their
enabling legislation. Only the former type of tribunal could be understood as invested by the legislature
with authority to hear a Charter challenge to its enabling legislation. Conversely, McLachlin J, in dissent,
was of the view that any ADM that has the ability to decide issues of law (here she rejected the restrictive


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delineation of ―general‖ questions of law) has the authority to determine whether its legislation violates
the Charter.

Martin vindicates the dissenting position of McLachlin J in Cooper. The case grounds its approach to
determining the authority of ADM‘s to apply the Charter not in a given tribunal‘s statutory mandate but in
s. 52 of the Con Act 1982 (which states that the Con is the supreme law of Canada, and any law that is
contrary to it is of no force and effect). The court additionally endorses the principle that
     ―Canadians should be able to assert the rights and freedoms that the Con guarantees them in the
         most accessible forum available, without the need for parallel proceedings before the courts.‖
The salient question according to Martin is:
     Does the ADM have authority, express or implied, to decide ―questions of law‖?
     Absent express statutory language vesting the tribunal with such authority, implicit authority may
         be inferred from the ADM‘s mandate. For example:
         (i)      whether its mandate requires it to decide question of law,
         (ii)     its interaction with other elements of the admin system (i.e. whether some other body
                  within the admin agency is better placed to decide such questions),
         (iii)    whether it is an adjudicative body (which is suggestive of this implicit authority),
         (iv)     and/or its capacity to decide such questions (i.e. whether tribunal members have legal
                  training). The latter consideration, however, is not to ―override a clear implication from
                  the statute itself.‖

If express or implied jurisdiction to decide questions of law is made out, the ADM is presumed to
have jurisdiction to interpret/decide those questions in light of the Charter unless that power is
expressly removed. Martin further confirms that an ADM‘s decisions involving application of the
Charter are subject to review on a standard of correctness. If an ADM upholds a Charter challenge to its
enabling legislation, s. 52 of the Con Act 1982 allows the ADM to suspend the application of the
offending section in the case before it, but does NOT allow the ADM to make a general declaration of
invalidity.

    1. Constitutional vs. administrative law analysis of the exercise of admin discretion

It is a fundamental principle of both con and admin law that admin discretion must be exercised within
the limits of con law, including the rights and freedoms guaranteed under the Charter. A final topic of
relevance to JR of ADM‘s substantive decisions goes to what mode of analysis the courts should adopt in
cases where both con and common (administrative) law bases are available for challenging a substantive
decision involving the exercise of admin discretion.

The majority decision in Multani v Commission Scolaire Marguerite-Bourgeoys, [2006] SCC indicates
that cases raising claims of violation of Charter rights through the discretionary exercise of admin powers
are most appropriately decided under the Charter rather than admin law principles of substantive review,
at least where the Charter claim may be characterized as central to the dispute.

REMEDIES

     1. Appeals
If there is an appeal section in the enabling legislation, this will identify the types of relief available in an
appeal is successful.

    2. Common law JR



                                                       59
The remedies available on common law JR fall into two categories: the prerogative writes (sometimes
referred to an ―extraordinary remedies‖), and remedies derived from private law (declarations and
injunctions).

        Prerogative writes
The prerogative writs most frequently used in common law JR are the writs of certiorari, mandamus, and
prohibition. In NS, the Rules of Court allow one to apply for ―an order in the nature of [certiorari,
mandamus, etc]. These remedies are
     Discretionary,
     Available only against public authorities,
     Not available against the Crown. This is not as broad a limit as it may first appear, however:
        ―while the prerogative writs...may still not be technically available against the Crown in the sense
        of the Queen in right of the governments of Canada and the provinces, to the extent that the
        modern day powers of the Crown (or the governments of Canada and the provinces) are in very
        large measure exercised by officials or agencies named in statutes, the restriction is generally
        avoided by naming the designated official as the respondent or defendant‖ (Evan, Admin Law 4th
        ED).

Certiorari – is used to quash or set aside a decision of an ADM
Prohibition – is used to prevent an ADM from making an unlawful decision or taking an unlawful action
Mandamus – is used to command the performance of a duty. For mandamus to be available, the enabling
legislation must clearly place a duty on the ADM to act in a particular way with regard to the individual
seeking the remedy, and there must have been a demand that the ADM perform its statutory duty, and a
refusal by the ADM.

NOTE: a claim for damages cannot be brought in conjunction with an application for a prerogative writ

Declarations and injunctions – these are private law remedies that in time were extended into the area of
admin law. A declaration is available against the Crown; however an injunction is not (see however the
comments above regarding the scope of this limitation).

     3. Statutory JR
Sections 18 and 28 of the Federal Court Act provide that the Federal Court has exclusive original
jurisdiction, with regard to federal ADMs, ―to issue an injunction, writ of certiorari, writ of mandamus, or
writ of quo warranto, or grant declaratory relief.‖ It is no longer necessary to identify which remedy is
being sought, however, since one simply makes an application for JR (subsection 18(3)).

Subsection 18.1(3) sets out the relief that may be obtained under the Federal Court Act. On an application
for JR, the court may:
     (a) Order a federal ADM to do any act or thing it has unlawfully failed or refused to do or has
         unreasonably delayed in doing, or
     (b) Declare invalid or unlawful, or quash, set aside, or set aside and refer back for determination in
         accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision,
         order, act, or proceedings of a federal ADM.
Thus, paragraph (a) provides the relief obtainable at common law through mandamus, while paragraph (b)
mirrors or expands the relief obtainable with certiorari, prohibition, a declaration or an injunction.

Statutes
Judicial Review Procedure Act (BC)
Administrative Tribunals Act (BC) ss. 43-45 and ss. 58-59


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