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Administrative law (ca)

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Procedural fairness and threshold

1THRESHOLD DEVELOPMENT- FROM FUNCTIONALIST TO CONTEXTUAL

Pre-Cooper, ie hearing requirements were only imposed for the exercise of judicial authority

  • Problem: no consistent definition of what constituted a judicial (as opposed to admin) function

Cooper confirmed Nicholson v. Haldimand-Norfolk Police Commissioners

  • CL provides a duty of fairness even in the absence of a statutory right;
  • Rejects functional distinction as threshold questions

Martineau v. Matsqui Inmate Board:

  • Court sets out a spectrum analysis w/ a flexible gradation of procedural fairness: Ministerial = only right to be heard and respond, judicial full panoply of proc protections

Cardinal v. Director of Kent Institution:

  • It cannot be argued that relief should be denied on the basis that no hearing could affect the outcome

Dunsmuir v New Brunswick:

  • The distinction between public office-holders and public contract workers / ‘statutory employees’ is irrelevant wrt the duty of fairness; whether a duty of proc fairness exists depends on the nature of the relationship btw the parties (rejecting Knight v Indian Head School, that only public office holder’s have recourse to CL fairness where the applicable law leaves him without any protection)
  • In determining the nature of the relationship one must take into account legal context (relevant statutes AND contracts [AND Charter]),
  • Where fairness is prescribed those prescriptions must be given effect to, to the exclusion of the CL public law duty of fairness
  • CL duty of fairness will apply where (i) there is no contract or contract does not offer any protection; or (ii) where contract/statute necessarily implies a duty of fairness (with the extent determined by the wording and context)
  • Where predetermined obligations of fairness are NOT performed in good faith, private law remedies apply (in employment context by increasing required notice)

2.TYPES OF DECISIONS STILL RELEVANT TO A DEGREE

2.1Emergencies:

  • It is likely that the court will pay considerable deference to the authority’s judgement as to the urgency of the situation (Mullan)

2.2Cabinet & Cabinet Appeals

Canada (Attorney General) v. Inuit Tapirisat of Canada: appeal to Gov-in-Council after Telecoms Commission denied ITS application for better coverage in remote areas as a prerequisite to Bell getting a rate increase approved

  • Proc fairnes depends on the statutory scheme as a whole to det what degree, if any, the legislator intended the duty to apply
  • Where the Exec has been assigned a function where the subject matter is polycentric (multiple & competing interests; not an individual concern), the duty of fairness will NOT be triggered.

2.3Bylaws & Rule-Making

Homex Realty v. Wyoming (Village): Homex development + no notice bylaw said no subdivision

  • Where a bylaw is created, and has immediate effect and a specific target, courts will imply a right to be heard unless there’s an express provision to the contrary
  • [suggests that where a bylaw or subordinate legislation of a more general character is enacted or promulgated, claims to procedural entitlements may be diminished or eliminated]
  • [consistent with spectrum analysis: bylaw generally broad and polycentric but not when affects individual rights]
  • The presence of a compelling public interest does not alone abrogate or diminish a citizen’s right to procedural protection (but will indicate legislat intention not to afford proc fairness rights)

2.4Policy Making

** Where the impact of a policy decision is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, NO procedural fairness (unless the legislation contains some indication of public participation or obligations of participation)


Can. Association of Regulated Importers: import quota for eggs changed without notice which significantly affected small group of historical

  • Decision was essentially a legislative or policy matter (so no proc fairness / court interference)

3INTERESTS AFFECTED / PROTECTED

3.1Decisions Affecting Rights, Privileges, or Interests

Re Webb and Ontario Housing Corporation: The Webb fam applied for and were granted tenancy in rent controlled apartments but it was later terminated without hearing

  • The threshold for proc fairness do NOT depend on privilege vs. interest/right BUT content of the duty does
  • Applicants are not entitled to proc fairness but once granted they have an interest/right

Hutfield v. Board of Fort Saskatchewan Gen. Hospital: Dr Hutfield applied for hospital privileges which was rejected by the Hospital Board without submissions or reasons.

  • The threshold for proc fairness do NOT depend on the case of modifying/extinguishing existing rights and an application where (exception to Webb)
          1. the decision involves facts or mixed fact & opinion (eg investigation of credentials, training, suitability, experience, and references);
          2. a refusal casts a slur on the applicant’s reputation or financial stability;
          3. the general interests of the public are affected by the decision (eg refusal of hospital privileges impairs his ability to provide the level of medical treatment that his license entitles the public to assume he has)

Baker v Canada: the fact that a decision is administrative and affects the right, privileges, or interests of an individual is sufficient to trigger the application of the duty of fairness


Moreau-Berube v New Brunsiwick: the duty to act fairly applies to all administrative bodies acting under statutory authority


3.2Non-Dispositive Decisions

Re Abel and Advisory Review Board: Advisory Review Board conducted annual reviews of those psychiatric patients who had been discharged from criminal charges by special verdict of insanity and submitted recommendations to the LG who would take the final decision.

  • Non-dispositive / preliminary decisions will NOT trigger proc fair, but more final one may
  • Where there is rubber stamping, it can be argued that the decision is being made by the preliminary decision maker
  • The proximity btw the preliminary decision maker / investigator and final decision maker is critical in determining whether there is a duty of fairness
  • Although the LG is not bound to act on the recommendations in the Board’s report, the favourable recommendation is too crucial to his decision – rubber stamping

Dairy Producers Coop v Saskatchewan (HRC): an investigating officer was appointed by the HRC after sexual harassment complaint to recommend whether a board of inquiry should be appointed.

  • Power to investigate/recommend DNE proc fairness
  • Where interim ADM has power to affect the rights of a person ∴ borders determinative powers

3.3Legitimate expectations

  • A legitimate expectation refers to an expectation of a hearing which may arise out of,
  1. an express statement or representation (i.e. a promise); and/or
  2. an established practice


Reference re Canada Assistance Plan:


  • No substantive relief and cannot fetter the decision following the representation

Furey v. Roman Catholic School Board: Board decided to close an elementary school w/ notice but some years earlier established a process to be followed in the case of closings.

  • Court of Appeal recognised public law estoppel but was unable to find any evidence that the residents believed past practice would be followed, ie there must be knowledge and reliance

Mount Sinai Hospital v. Quebec (Minister of Health & SS) (SCC, 2001): Minister agreed that if hospital was relocated, he would issue it a license for the new premises. The license what later refused

  • Majority felt it unecessary to deal with public law estoppel + LE
  • Dissent:
  • LE focus on govt conduct (obj) NOT reliance (subj), ie knowldge/reliance sufficient but not necessary
  • LE focus is on promoting regularity, predictability, and certainty in govt’s dealing w/ the public
  • LE based on narrower requirements than estoppel and can operate as a cause of action
  • Public law estoppel: Public interest may override establishing estoppels [doubtful you could estopp if it meant the ADM doing something illegal or ultra vires]

CUPE v. Ont. (Ministry of Labour): labour dispute resolution practice could be interpretted in such a way as to require arbitrators appointed by mutual agreement but Minister appointed 4 retired judges of his own choosing and TUs not consulted.

  • A general ambiguous promise NOT sufficient to trigger LE, must be unequivocal set past practice

4CONSTITUTIONAL DIMENSIONS

  • Since Parliament cannot enact laws contra the Const, all AA must conform with the Charter
  • Esp nb when dealing with ‘due process’ ito BoR s 1(a) and ‘fundamental justice’ ito Charter s 7 – both of which incorporate elements of natural justice
  • The BoR / Charter allows you to attack the legislative scheme in place; the common law duty of fairness only allows you to attack the decision-making process
  • Once a claimant shows a Charter breach (eg deprivation of LLSP AND no FJ) the onus is on the govt to prove justifiable ito s 1

4.1Applicability

The Canadian Bill of Rights

  • BoR only applies to Fed, no relevance to prov statutes or decision making under prov jurisdiction
  • Section 2(e) gives FJ right in s 1(a) quasi-constitutional status – it declares its primacy over all other legislation unless that legislation contains an express override provision
  • Unlike the Charter, the Bill of Rights protects property rights

The Charter of Rights and Freedoms

  • Binds all law (s 52) and all conduct/law (s 24)
  • Section 32 means the charter applies to any statutory authority including regulations, bylaws, orders, decisions, etc. (Douglas/Kwantlen Faculty Assoc v Douglas College; Slaight Communications v Davidson; Eldridge v BC)
  • Canadian courts have established that the Charter does NOT apply to universities or hospitals; McKinney and Stoffman, respectively

4.2BoR and Charter as sources of procedural protections

Authorson v Canada (Attorney General): Bill of Rights: fed Act barred interest claims to money kept by govt obo disabled veterans in clear and specific language., ie the Crown was under a fiduciary duty to pay interest on veterns’ pension funds but it was extinguished by the statute.

  • A property claim only protected by BoR s 1(a), NOT Charter s 7
  • Due process in the context of a legislative body means the decision maker (Parliament) is bound only by self-imposed procedural restraints (manner and form) on its enactments (ie 3 readings in both houses and Royal assent), ie the courts will not impose additional requirements of proc fair

Singh v. Canada (Minister of Employment & Immigration): maj = Charter / dissent = BoR: Minister, acting on advice determined refugees were not CAT convention refugees ito Immigration Act. They claimed the legislat infringed Charter s 7 (LLSP + FJ) b/c at no point in the process were they given a chance to be heard or to know the case against them

Majority (Wilson J):

  • The Act precluded the CL duty of fairness BUT is unconst b/c it violated s 7
  • FJ ito s 7 includes procedural fairness at a minimum [ie CL rights the minimum but more can be obtained ito Charter]
  • Written submissions may be satisfactory in some cases but an oral hearing is necessary where there is a serious issue of credibility

Dissent (Beetz J):

  • We should look to the Bill of Rights b/f looking to the Charter
  • Act contravenes due process under s 2(e)
  • Due process will NOT impose an oral hearing in all cases but might given (i) the nature of the rights at issue; and (ii) the severity of the consequences to the individual

Chiarelli v Canada (Min of Jutice): C was a permanent resident about to be deported after being convicted of a crime.

  • In assessing whether a procedure accords with fundamental justice it may be necessary to balance the competing interests of the state and the individual

4.3Life, Liberty and Security of the Person

  • Charter s 7 does is limited to ‘life, liberty, and security of the person’ (NOT property)
  • only deprivations of these rights by ADMs will trigger proc fairness

Wilson v. British Columbia (Medical Services Commission): the Medical Services Commission established a scheme for limiting the numbers of practicing doctors and restricting the geographic areas of their practices in order to control costs and even distribution of health care throughout the province

  • ‘Liberty’ is NOT confined to mere bodily restraint – it may embrace individual freedom of movement, including where to pursue one’s occupation
  • Here, the scheme was not justified by principles of FJ b/c it was based on vague and uncertain criteria, which combined w/ uncontrolled discretion, leaves room for arbitrary conduct
  • ‘Liberty’ does NOT encompass a right to work, but it does include a right to follow one’s chosen profession

New Brunswick (MOH & Comm. Services) v. G.(J.): Minister sought to extend a judicial order granting the Minister custody of the appellant’s 3 kids for an additional 6 months

  • ‘Security of the person’ will be infringed where state action has a serious and profound effect on the person’s psychological integrity
  • The effects of the state interference must be assessed objectively w/ a view to their impact on the psychological integrity of a person of reasonable sensibility
  • This need not rise to the level of nervous shock or psychiatric illness; but must be greater than ordinary stress or anxiety

Blencoe v. British Columbia (Human Rights Commission): BC MP accused of sexual harassment and Premier removed. Hearings were scheduled before the BC Human Rights Tribunal over 30 mos. after the initial complaints were filed and things descended into a media circus. Resp claimed unreasonable delay caused serious prej to him and his family amounting to a denial of natural justice

Majority (Bastarache J):

  • Security of the person: only stress that is (i) serious; and (ii) caused by the state can violate security of the person.
  • This was serious but was not caused by the state (in administrative proceedings, it is a citizen making the allegation and the state is resolving the complaint cf. criminal proceedings).
  • Protection of reputation and freedom from stigma are values that must guide courts in their interpretation of the Charter but are not serious enought to be freestanding rights under s. 7

Dissent (LeBel J.):

  • Focused on the impact of the delay on B’s life, not on his hearing – career finished, family chased across the country, clinically depressed, couldn’t coach kid’s soccer team
  • Abusive administrative delay is wrong; it doesn’t matter if it wrecks your life or your hearing


Duty of fairness and content (choice of procedures)

  • Once the threshold is crossed, we must consider the content of procedural entitlements
  • Notice? Access to evidence? An oral hearing? Counsel? Cross-examination? Reasons?

1STATUTORY POWERS PROCEDURE ACT’S PROVISION FOR CONTENT

Statutory Procedures Act (Ont):

  • 3(1) Application- The Act applies where a tribunal is required by the Act, another act, common law, or the Charter to afford someone procedural fairness; ie it applies where an enabling act require it or where the CL threshold has been crossed
  • 3(2) Where Act does NOT apply- to a proceeding
  • Before the Assembly or any committee of the Assembly;
  • In or before Ontario courts
  • Before an arbitrator to which the Arbitrators Act or Labor Relations Act applies;
  • Investigations and reports, w/ or w/o recommendations, where the report is for the info or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or
  • tribunal empowered to make regulations, rules or bylaws in so far as its power to make regs., rules or bylaws is concerned
  • etc.
  • For the most part, the SPPA is considered irrelevant b/c the common law has advanced beyond the procedures afforded in the SPPA
  • But it is important ∵ where parties are entitled to an oral hearing under statute OR at common law, the SPPA then applies and
  1. there is a codified list of the procedures owed to that party; and
  2. the SPPA may offer a procedure that the common law does not
  • Note: Under common law, an oral hearing will not always be required but may be, for example, in cases of serious credibility (Singh)

2COMMON LAW

Baker v. Canada: Jamaican woman applied for a humanitarian and compassionate consideration exemption under the Immigration Act. Subordinate officer did the application then submitted notes to Immigration Officer who, relying on those notes, refused her application. She was provided w/ the notes

  • Content of fairness = consider all of the circumstances
  • Court provides a non-exhaustive list of factors to be considered in context of circs
  • Basic idea: the purpose of the participatory rights contained w/in the duty of fairness is to ensure that admin decisions are made using a fair & open procedure where those affected can put forward their views and evidence
  • Baker factors affecting the content of the duty of fairness =
  1. The nature of the decision being made and the process followed in making it-
  • Considerations = the process provided for, the function of the tribunal, the nature of the decision making body, and the determinations that must be made to reach a decision.
  • The more these resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
  1. The nature of the statutory scheme & the terms of the statute pursuant to which the body operates-
  • Greater protections req’d when statute does not make provision for appeal procedures
  1. The importance of the decision to those affected by it
  • The greater the impact, the more stringent the protections req’d
  1. Any legitimate expectations-
  • LE that a procedure will be followed, this procedure is required by the duty of fairness.
  • LE of a certain result, more extensive procedural rights may be required [but NOT substantive relief]
  1. ADM’s choice of procedure (not determinative, but nb)-
  • Especially relevant when the statute admits the ADM discretion or when it has an expertise in determining what procedures are appropriate in the circumstances

Suresh v. Canada (Minister of Citizenship & Immigration): Suresh’s immigration applicantion turned down. Minister issued a certificate that he was a danger to Can’s security which was a prelude to an order of deportation and he might be tortured back in Sri Lanka. S had the opportunity to make written submissions and file material w/ the minister but did not have a copy of the immigration officer’s report on which basis the certificate was issued.

  • In order to pass the threshold a refugee must show prima facie (evidentiary threshold) that there is a real risk of torture before being entitled to the above requirements under s. 7
  • Content: Whether deprivation is in accordance with FJ, Canada’s interest in combating terrorism must be balanced against the refugee’s interest in not being deported to torture [Canada considers the latter to almost always trump]
  • The minimum content of the duty of fairness to meet the the requirements of FJ are (i) access to all relevant information the ADM intends to rely on; (ii) at minimum a written submission re his danger to Canada and the risk of torture; and (iii) reasons
  • Where these procedural safeguards are denied, the action will NOT conform with FJ and it is unlikely/impossible such an act will be justifiable under s 1
  • Section 7 does NOT require a full oral hearing

Ahani v. Canada (Minister of Citizenship and Immigration): Ahani (Convention refugee) was informed he the Minister was going to issue a security-warning certificate; a prelude to deportation. He was given the chance to make submissions which he did, claiming he would face torture. The Min still decided to issue the certificate and A filed an application for judicial review of his decision based on s 7.

  • Applying the framework from Suresh, the Court held that he failed to clear the evidentiary threshold required to access s. 7 protection (a prima facie case), ie substantial risk of torture upon deportation

3CONTENT OF PROC FAIRNESS: POSSIBLE PROCEDURES


3.1Notice (Pre-Hearing)

  • Of the procedural rights a person entitled to a hearing may have, notice is the most important b/c w/o notice, the other rights cannot be exercised effectively or at all (Charkaoui v Canada)
  • Aspects of notice

 All aspects can be provided for in the legislation or, if omitted, courts will imply from context

  1. Form-
  • Written notice is the norm unless context requires some other form (ie oral)
  1. Manner of service-
  • Personal service is the norm (subject to context)
  • Service must be effected in such a way that affected persons can reasonably comprehend from the notice that their rights, interests, or privileges would be affected (Re Central Ontario Coalition)
  1. Timing-
  • The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate or to prepare (Krever Commission)
  1. Contents-
  • Notice must provide enough info to enable the party to respond in a meaningful way (Krever Commission)

Canada v. Krever Commission: incidents of HIV and Hepatitis C from tainted blood prompted ministers of health to convene an inquiry to examine the blood system holding extensive hearings. On the final day of hearings, the Commission sent out confidential notices to blood system participants (path labs etc.) that the Committee might reach conclusions re professional misconduct. Issue was whether the Commissioner failed to provide adequate procedural protections or by the timing of the release of the notices

  • Timing:
  • Timing of notices depends on the circumstances of the case (criminal, admin etc.)
  • The more extensive and complex the evidence is, the more likely (and the more acceptable) it is that the notices will be closer to the end of the inquiries
  • The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate or to prepare
  • Here notice was sufficient ∵ (i) it was impossible ot give full detail; (ii) Commission itself not concerned with civ/crim liability so no ‘case to meet’

3.2Discovery (Pre hearing):

Canadian Pacific Airlines v. Canadian Air Line Pilots Assn

  • Ito jurisdiction to control discovery, administrative bodies only have power to order/control discovery to the extent that the power is expressly stated in their empowering statutes

Ont. (HR Comm.) v. Board of Inquiry (Northwestern Gen. Hosp.): Board of inquiry set up under Ontario HR Code to hear complaint of racial discrimination made by 10 nurses. Board was ordered by the Commission to provide the respondents w/ the statements of the complainants and witnesses. Board applied for judicial review arguing the doc were privileged (produced for litigation purposes)

  • The combination of ss 8 and 12, SPPA amounts to a recognitions that th criminal standards for pre-hearing discovery apply in SOME admin contexts, ie complete disclosure subject only to privilege or irrelevance
  • Rationale for disclosure:
  • Justice is better served when the element of surprise is eliminated and the parties are prepared to address issues on the basis of complete information of the case to be met
  • The fruits of the investigation are not the property of the Commission, but the property of the public to be used to ensure justice is done

CIBA-Geigy v. Canada (Patented Medicine Prices Review Board): Patent Board was investigating CIBA for selling its drugs at an excessive price. Statute alllowed Board to review report from its staff on the pricing issue to decide whether a formal hearing was necessary. Under the statute, CIBA could ask for disclosure of all documents relied on by Board staff in making the report but Board refused.

  • Distinguishes criminal/human rights context from economic regulatory context
  • There are serious eco consquences here BUT no power to affect human rights in a way akin to criminal proceedings

May v Ferndale Institution: the Correctional Service used a computer programme to score inmates ito their appropriate security level. May was transferred from a minimum to medium-security institution (more restrictive of liberty). He applied to for habeas corpus to go back to which end he also applied for a certiorari for the scoring matrix. The Act required the ADM to give all the information to be considered in the taking of the decision a reasonable period before it is taken

  • The Stinchcombe principles do NOT apply in the administrative context.
  • In the administrative context, the standard of disclosure is such that the individual knows the case he has to meet
  • Outside Stinchcombe this means the ADM must comply with statute and CL proc fairness
  • The CCRA imposes onerous duties of disclosure on ADMs
  • Considering (i) the legislative scheme, (ii) the nature of the undisclosed information and (iii) the importance of the decision, there was high level of disclosure req’d by the statute

3.3Delay

Kodellas v Saskatchewan:

  • Whether a delay is unreasonable for the purposes of s 7 depends on a number of factors
  1. Whether it it prima facie unreasonable
  2. The reason for the delay having regard to the conduct of the complainants
  3. The prejudice or impairment caused by the delay
  4. Not numerus clausus

III(4)Oral Hearings (In-Hearing)* Advantages to a full blown oral hearing:

  • establish clients credibility,
  • tap into boards sympathy,
  • examination,
  • tribunal members can hear outside concerns and ask for clarification
  • Disadvantages to an oral hearing:
  • time and money,
  • assessment of credibility depends on views and stereotypes of adjudicators,
  • dangers of cross-exam,
  • emotional costs of putting a victim up on the stand
  • TEST on whether the circumstances warrant an oral hearing
  • Claim to an oral hearing is also one that is situation-sensitive
  • Issues of credibility ALWAYS warrant an oral hearing (Singh, Suresh)

Masters v. Ontario: Ont agent general (appointed on prerog of Premier) in NYC faced allegations of sexual harassment. Premier made investigations and found that M had harassed 7 women. M took a financial settlement and resigned. M then claimed there was a breach of natural justice b/c there should have been an oral hearing at which he could interview the complainants

  • Court applies the factors from Bakerto det whether oral hearing necessary
  • Nature of decision was discretionary (prerog power) so less procedural protections (Martineau)
  • Decision maker’s choice of procedures was investigatory not determinative (less procedural protection, Inuit Tapirisat)

Khan v. University of Ottawa: K failed an exam but claimed one of her answer books went missing. A Committee met to decide on failures, and dismissed her without a hearing.

  • Granting an oral hearing: where (i) credibility is an issue (only her word to say she wrote a 4th book); and (ii) the consequences are serious (loss of an academic year by a failing grade can delay, if not end, the career for which the student is studying)
  • Content of oral hearing: should incl an opportunity to appear, make oral reps, and correct/contradict circumstantial evidence on which the decision would be based

3.5Open Hearings (In-Hearing)

SPPA, s 9: Presumption in favor of openness and creates specific considerations in re whether to proceed in camera in whole or in part.

  • Decision to hold an in camera hearing is still left to the discretion of the tribunal
  • Factors that tribunals consider:
  • Privacy of the victims
  • Ensuring that witnesses will be willing to testify
  • National security or commercial competitiveness (if these are issues)
  • Freedom of the press and other Charter rights (Pacific Press)
  • Protecting the reputation of the accused (more common justification to keep in camera proceedings in professional misconduct hearings)
  • Alternatives to in camera hearings: publication bans, testifying in private, etc.

3.6Right to Counsel (In-Hearing)

SPPA, s 10: permits representation by counsel or an agent for parties to proceedings governed by the Act [recall exceptions]


Re Mens Clothing Manufacturers: labour context (no SPPA). after decades of resolving disputes in Toronto’s mens clothing industry in arbitration w/o lawyers, a TU wanted counsel

  • No absolute right to counsel at CL – discretionary
  • Where a dispute is dependent on law (statute, arbitration agreement), whether counsel are allowed is determined by the words of that law
  • If a person (NP/ JP) is entitled to be represented, they are entitled to choose by whom
  • Where JPs are involved, to deny the right to counsel would deny the right to select the agent of choice, esp a particular class of persons widely retained for such purposes in other industries
  • If one party is entitled to counsel, the other must be ipso facto

Re Parrish: ship captain summoned before an investigator of a statutory board after ship crash. He appeared with counsel but the investigator refused to admit them, even after allowing previous members of the crew, and the Cpt refused to testify

  • Right to counsel required where words of statute require, or its practical application indicate
  1. Individual is subpoenaed, required to attend, and testify under oath with a threat of penalty-
  2. Absolute privacy is not assured and the attendance of others is permitted
  3. The reports are made public
  4. Potential to be deprived of rights or livelihood

Howard v. Stony Mountain Institution: hearing held to decide charges against a prisoner under the Penitentiary Service Regs. which could result in a loss of earned remission days and punishment in the form of solitary confinement

  • Rationale for counsel = opportunity to adequately present one’s case
  • Charter, s 7 creares a qualified right to counsel
  • TEST: non-exhaustive list of factors
  1. Circumstances of the case: the need for reasonable speed in making their adjudication and the need for fairness between the parties
  2. Seriousness of the charge and of the potential penalty
  3. Nature of the case: Is it a question of law (greater right to counsel) or fact?
  4. Complexity of the case: Are there any procedural difficulties?
  5. Capacity of the party to understand the case and present his defence himself.
  • NOT a matter of discretion (as under CL) but a matter of right where the opportunity to present the case adequately calls for a right to counsel.
  • Where the circumstances do not point to a breach of FJ (eg change in terms of sentence), the effect of the law may may still affect residual liberty (not liberty per se but the conditions of liberty) and therefore require greater proc fairness in the form of counsel

NB (MOH and Community Services) v. G.(J.): policy under the Legal Aid Plan prohibited the granting of legal aid certificates in custody-order renewal proceedings. Issue was whether s 7 of the Charter required that a mother be provided with counsel to resist an application by the Child Welfare authorities for renewal of an order placing her 3 children in the custody of the state.

  • A parent need NOT always be represented by counsel in order to ensure a fair custody hearing.
  • 3 factors to determine if a party has a right to counsel:
  1. Seriousness of the interests at stake: obviously serious
  2. Complexity & adversarial nature of the proceedings: procedure to resist application included adducing evidence, cross-examining witnesses, expert testimony etc
  3. Capacities of the individual: intelligence, communication skills, composure, familiarity w/ the legal system

3.7Disclosure (In-Hearing)

  • General Principle: A party is entitled to know what evidence and representations have been given and is entitled to an adequate opportunity to respond (Kane v Board of Governors, Univ BC)

Access to Information Statutes

  • Just b/c info falls under an exception from disclosure under freedom of info legislation does NOT mean that its disclosure will also be denied in proceedings to which the rules of natural justice and procedural fairness apply, eg Access to Information Act (fed), ‘Act is without prejudice to other laws governing access to information’

Crown privilege

  • Common law Crown privilege was codified in the Canada Evidence Act
  • Crown can object to disclosure on the grounds of:
    1. A specified public interest (s. 37(1)) although Court can overrule this if public interest in disclosure outweighs the specified public interest (s. 37(2))
    2. Disclosure would be injurious to IR/national defence or security (s. 38(1))
    3. Information constitutes confidence of Queen’s Privy Council for Canada (s. 39(1))
  • An application can be made to prevent disclosure (s. 37(3))

Other common law privileges

  • Common law privileges NOT codified: solicitor-client privilege; adjudicative privilege

Access to Agency Information

  1. Agency collected info about the individual from another person and the individual wants the person’s identity: General rule: what is reasonable given the circumstances
  1. Agency collected info about an individual itself and the individual wants that info

Re Napoli and Workers’ Compensation Board: N was injured at work but appealed his disability award. The Board declined to disclose medical reports on his file and denied his appeal.

  • Whether disclosure is warranted at all depends on:

(i) if credibility and issue (chance to cross-examine); and

(ii) where the consequences are serious

  • The extent of disclosure depends on:

(i) what is necessary to answer the case (precise statement, where, when, and who); and

(ii) policy rationales (sunlight likely to ensure greater care in preparing reports)


Charkaoui v Canada: C a permanent resident but a security certificate issued labelling him a security threat (potential for lengthy detention + deporation) The info on which the decision was based was confidential and not to be disclosed to the person named in the certificate or anyone acting on the person’s behalf or in his interest. He claimed a s 7 infringement

  • The overarching principle of FJ is that before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick v. G. (J.)
  • Ito a s 7 deprivation the aspects of proc fairness that must ALL be satisfied are (in other context which have to be satisfied will vary): (i) the right to a hearing before an independent and impartial magistrate; (ii) a decision on the facts and the law; (iii) the right to know the case put against one; and (iv) the right to answer that case.
  1. Agency collected commercially sensitive info about a business and other parties want disclosure

Eg. Anti-Dumping Act

  • S. 29(3) prevents the disclosure of Anti-Dumping Tribunal info of the business in question to the public such that it will be available to competitors for use
  • Hearing held but evidence in camera (Magnasonic Canada v. Anti-Dumping Tribunal)
  • Confidential briefs, documents and exhibits are made available by the Tribunal only to counsel who are appearing for parties represented at the hearings, and those counsel are required to give an undertaking not to reveal confidential info to their clients (Anti-Dumping Tribunal Study)
  1. Agency may have material that it has created for itself and any party may want disclosure

Eg. Staff studies / reports / investigations on which ADM decisions based

  • General principle: NO discloure EXCEPT where will affect rights in a substantial way (non-dispositive vs. final decisions, 3.2)
  • Arguments for full staff document disclosure:
    • Staff documents contain info that might assist parties in preparing their submissions
    • Fairness and impartiality
    • Public is entitled to have much of the information – accountability
    • Reports are likely more well thought out and more carefully based on accurate information
  • Arguments for non-disclosure (not very persuasive):
    • Ministerial responsibility would be undermined by disclosure of staff documents
    • Having to disclose everything would result in undue delays
    • Staff will be less candid in its advice
  • Recommendation by LRC:
    • factual portions of staff documents should ALWAYS be open to public unless there is some ground justifying non-disclosure (i.e. confidentiality);
    • advice of agency staff should NEVER be disclosed
  • Ultimately: we have to determine whether the individual has the opportunity to meet the case against him or her

3.8Official notice (In-Hearing) (≈ judicial notice)

  • Definition: Official notice is where an ADM agency may use material that is not introduced in evidence in making its decisions (i.e. extra-record evidence)
  • Two types of facts:
  1. Adjudicative facts: a finding of fact concerning the immediate parties (who, what, where…)
  • Adjudicative facts are those to which the law is applied
  • Must always be supported by evidence / no official notice permitted
  1. Legislative facts: facts which help the ADM det the content of law or policy
  • Ordinarily general in nature and do not concern immediate parties
  • Will usually be det by legislation or case law but where could needs to develop law or policy, it may, but need not necessarily, resort to legislative facts outside the record
  • Rationale = to promote convenience
  • NOT allowed: (i) adjudicative facts; (ii) the right of parties to have the opportunity to meet the facts that influence their case


Official notice likely No official notice (notice + response req’d)
Legislative facts Adjudicative facts
Peripheral facts Critical facts
Certain facts Uncertain facts

Township of Innisfil v. Township of Vespra: land to be annexed from neighbouring townships det by formula, the use of which was approved by the gov/t. A dispute arose and at the hearing a letter from the minister was introduced as proving the required amount of land

  • An ADM intending to use an independent, extra-curial decision of fact must give parties notice and an opportunity to respond to it

Lawal v. Canada (Minister of Employment & Immigration): immigration panel took official notice of a newspaper article. relying on s. 68(4), Immigration Act that allows the panel to take notice of facts that may be judicially noticed & other generally recognized facts

  • The material was not properly the domain of judicial notice, it was not generally recognized fact

3.9Admissibility of evidence (In-Hearing)

  • RULE: Agencies are NOT governed by formal rules of evidence used by courts unless some statutory provision requires them to (and such provisions are rare)
  • An administrative body’s rules of evidence will be determined by,
  1. The body’s empowering legislation; or
  2. The SPPA, ss. 15(1), (2) [incl everything but privileged info and info excluded by other statute]
  • Exception: fairness may require an agency to abide by formal rules of evidence to the extent that it allows a party to make his case (Miller v Min of Housing; Universite du Quebec v Larocque)

3.10Cross-examination (In-Hearing)

SPPA s. 10.1(b): A party to a proceeding may, at an oral or electronic hearing, conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.


Township of Innisfil v. Township of Vespra: issue was whether the municipalities could cross examine of the letter, ie that is was the correct determination

  • Where the rights of a citizen are involved, SSPA, s 10.1(b) entitles him to a full hearing, ie incl cross examination
  • Only in the clearest of cases (ie clear statutory language) will the exec be able to give binding policy directions on a tribunal

Armstrong v. RCMP: after disciplinary hearings phase where A did not ask to cross examine, a sergeant wrote a memo to the Board and on that basis A’s discharge was confirmed. Issue was whether sergeant’s memo was new material which A was not given an opportunity to dispute

  • To waive a right a party must be clear as to the consequences of his or her act. By failing to ask for the right to cross-examine, a party does not waive the right to cross-examine.
  • The right to cross-examine is not absolute (Innisfil v. Vespra) [BUT where statute is silent on cross-examination, courts will be reluctant to impose the right unless fairness requires]
  • Factors militating towards a right to cross-examine include:
  1. where the evidence is contradictory or conflicting
  2. where there is an attack on a party’s credibility

3.11Limits of the Trial-Type Hearing

Thomas McGarity,

  • Principle: enhance accuracy of factual determinations
  • Limiting factor: ‘transaction cost’ (i.e. reduced admin efficiency and increased expenses) may outweigh any benefits derived from increased accuracy
  • Trial-type procedure is NOT useful for enhancing the accuracy of policy and scientific determinations (questions do NOT lead to greater clarity / simply reveals the depth of disagreement)

Glen Robinson

  • McGarity’s conclusion that policy not suitably considered in trial-type hearings is INCORRECT
  • Even legislative facts rest on general conclusions inferred from factual data and an evaluation of probabilities
  • Trial-type procedures can be valuable in testing forecasts and generalized conclusions underlying policy decisions
  • Advantages of subjecting policy decisions to trial-type procedures:
  • allows one to probe inferences on which expert bases his interpretation
  • exposes possible bias or lack of sound foundation
  • puts burden on agency to explain the assumptions & foundations on which its policy rests
  • prospect of having to justify policy decisions will result in more well thought out decisions

3.12Reasons (Post-Hearing)


Threshold of the Duty to Give Reasons

  1. Under statute:
  • s 16.1(3), SPPA: An interim decision or order need not be accompanied by reasons.
  • s 17(1), SPPA: A tribunal shall give reasons in writing if requested by a party. 
  1. At common law (Baker):
  • There is an obligation on ADMS to give reasons for decisions
  • Situations where the obligation will be triggered
  • Where the decision is of significance to the individual
  • Where there is a right of appeal / JR
  • The empowering statute otherwise provides for it

Content of the Duty to Give Reasons

  • Reasons must reflect purposes served by a duty to give reasons (VIA Rail Canada), which include
  • To give a party a chance to affect the decision maker; and
  • To limit the risk of error by the tribunal
  • Reasons should be sufficient to be able to scrutinize decision on judicial review
  • If a decision involves discretion, then reasons should demonstrate how the power exists and the factors relied on when exercising that discretion
  • If a decision is based on certain facts, those facts and the evidence supporting them should be highlighted
  • If credibility of a witness is an issue, then the tribunal should show why it did/didnt think the witness credible
  • If the ‘reasons’ requirement is to be meaningful, those reasons must at a minimum shed some light on the actual reasons of the decision-maker
  • A more substantive rather than symbolic application of the reasons requirement

Suresh v. Canada (reasons in a s 7 deportation to torture case)

  • Reasons must articulate and sustain the finding that individual will not be subject to torture
  • Reasons must articulate why the individual is a danger to the security of Canada
  • Reasons must come from the decision-maker (and not the subordinate official like in Baker)

VIA Rail Canada Inc. v. National Transportation Agency:

  • Test for adequacy of reasons: Do the reasons provided reflect the purposes for which a duty to give reasons was imposed?
  • Purposes are reflected when:
  • The decision-maker sets out findings of fact and the evidence on which those findings are based.
  • The reasons address the major issues.
  • The reasoning process is set out & reflects the consideration of relevant factors.

Effect of Breach of the Duty to Give Reasons

  • ALL REMEDIES ARE DISCRETIONARY
  • Remedies NOT available if:
  1. Defect in reasons is technical
  2. Court finds no substantial wrong or miscarriage of justice
  • Remedies available for breach of duty to give reasons:
  1. Decision is set aside if:
  1. Decision maker misinterpreted the legislation or committed some other error of law
  2. The tribunal failed to consider relevant issues
    • Exception: if the reasons show the tribunal considered the most important reasons (inference drawn that it considered less important issues as well)
  1. Order the production of reasons if there is a legal duty to give reasons and tribunal fails/refuses
  2. Remit the decision back to tribunal if
  1. the tribunal failed to consider a matter it was legally obligated to consider; or
  2. If the tribunal took into consideration some irrelevant factor
  1. Reverse the decision
  2. Injunction
  3. Quash the decision (usually if no reasons are given at all)

Bias and lack of independence


1BIAS: A GENERAL TEST

  • RULE: Baker v Canada: rule against bias applies to all persons who play a signifianct role in the making of the decision, not just the final person
  • GENERAL TEST: well informed RP + thought matter through + reasonable apprehension of bias (Committee for Justice and Liberty case)
  • It does not matter if there is actual bias – there must only be a real likelihood of bias; how much of a likelihood depends on the circs (Newfoundland Telephone)
  • It is an ‘informed’ reasonable person – informed by the context of the statutory scheme and the tribunal in question
  • NOTE: Canadian law follows a GENERAL TEST for bias (cf past distinction between pecuniary and other interests rejected in Energy Probe case).
  • Various grounds exist on which one could base a claim of a reasonable apprehension, ie showing one of these recognised grounds will indicate the specific requirements (CONTEXTUAL) for showing a reasonable apprehension

1.1Pecuniary and other material interests

Energy Probe v. Canada (Atomic Energy Control Board): AECB approved an operating license for a nuclear power station for Ont. Hydro. Energy Probe objected b/c one AEC Board members was president of a company that supplied cables to nuclear power plants.

  • Distinction between pecuniary interests and other interests REJECTED
  • Test for bias depends on the nature of the tribunal: adjudicative = mere possibility sufficient, administrative = interest must be more immediate and certain and give rise to substantial likelihood
  • A pecuniary interest on the part of a decision maker will constitute bias where,
  1. The decision maker has a direct interest (i.e. direct r/ship);
  • Exception: a contingent expectation of pecuniary gain is not a direct interest.
  1. The pecuniary benefit will arise with certainty; AND
  2. The interest is present at the date the decision was made

1.2Antagonism during the hearing

  • Manifests itself in:
          1. Denying procedural fairness (e.g. not being allowed to present one’s case)
          2. Behaviour of decision-maker including
  • Unreasonably aggressive questioning
  • Unreasonably aggressive comments about testimony; Gooliah v. Canada
  • An attitude toward the issue being decided
  • Personal dislike of the claimant
  • Lack of sympathy w/ legislative objectives; Baker
          1. Behaviour of other parties who have a specific link to decision making process (e.g. lawyers, etc.)
  • Reasonable app? Balance to be struck –tribunals controlling their proceedings vs needless antagonism

1.3Association between party and decision maker

  • Factors
          1. Nature and function of the Board (Marques)
  • If the Board requires persons with expertise being appointed, it is expected that there will be some level of prior association with the parties.
  • Mere professional r/ship is not enough (need something more direct) in this context
          1. Nature of the relationship between the parties
          2. Amount of time lapsed between the proceeding and the prior association

1.4Involvement of decision maker in earlier stage of process

Quebec Inc. v. Quebec (Regie des permis d’alcool):

  • Investigators must NOT overlap with decision-makers

Committee for Justice and Liberty v. National Energy Board: Application made for construction of a natural gas pipeline. The chairman of the board at the time of the application had been involved (as member of a Study Group) in discussions and planning for the applicant company.

  • Test for earlier involvement: Can the decision maker draw back and bring an impartial mind to bear on the issue to be determined? (Township of Vespra v. Ontario)

1.5Attitudinal bias

Great Atlantic & Pacific Co. v. Ontario (HR Commission): HRC did intensive investigation into sex discrim case and then created a committee to hear the complaint. B (a lawyer with a background in sex dscrim cases) was appointed to the Committee but she had been a complainant to a similar complaint before the HRC prior to her appointment.

  • There was a reasonable apprehension of bias b/c of her involvement in another complaint

Imperial Oil v. QB (MOE): Imperial polluted so the Minister ordered it to prepare a decontamination measure study at its own expense. IO argued bias b/c the Minister was involved in prior decontamination work and was being sued by the present owners of the land.

  • The contextual nature of the duty of impartiality nb:
    1. Nature of the functions to be performed: the Minister is performing a mainly political role which involves his authority & duty to choose the best course of action in the public interest; he is not performing an adjudicative function. Duty applying to a politician NOT equivalent to a judge or admin ADM
    2. Legislature’s intention: legislation defines Minister’s role as requiring him to give notice to the person, receive and review representations and info submitted by that person and give reasons to that person for his decision.
    3. Nature of the personal interest: Any interest they may have had in recovering the costs of the proceedings was too remote and attenuated to give rise to a reasonable apprehension of bias; the only interests the Minister was representing were the public interest and the interest of the state in protecting the env/t.

1.6Institutional bias:

Quebec Inc. v. Quebec (Regie des permis d’alcool): Registrar of Alcohol Permits revoked company’s liquor permits for violations of statute. Company claimed inst bias ∵ of the functions exercised in making the decision (≈ judicial) overlapped with the Registrar’s administrative and enforcemenet duties

  • Factors to be considered:
  1. Authorization in statute allowing a degree of institutional characteristic
  • If the legislation is silent on the possibility that the tribunal may act dependently, it is necessary to consider how the tribunal operates in practice
  • Are there any constitutional or quasi-constitutional protections that apply? If yes, even if there is express legislative authorization of bias, it must still not violate the rights endowed in constitutional or quasi-constitutional documents
  1. Nature of the decision to be made
  • Judicial or quasi judicial body = low threshold (higher standard)
  • Admin tribunal = high threshold (low standard)
  1. Duties of the admin agency other than adjudicating the dispute
  • Plurality of function in a single admin agency is NOT sufficient in itself to raise reasonable apprehension of bias BUT excessively close relations among members in different stages of the process may be
  1. The operational context as a whole
  • The lack of separation of function will raise a reasonable apprehension of bias.
  • Functions of prosecutor and adjudicator cannot be exercised together.

Wewaykum Indian Band v. Canada: two bands disputed exclusive entitlement to reserves on Vancouver Island. Some year earlier Binnie J. worked for the DOJ and had received info concerning one of the Band’s claim and that he attended a meeting where the claim was discussed.

  • The SCC (Binnie J. writing for a unanimous Court) dismissed the band’s claim.
  • Multiple ADMs – general rule is that the bias of one decision maker will taint the impartiality of other decision makers (Baker) so: two stages
          1. Individual bias
          2. Impute to other decision makers
  • STAGE 1: Individual judicial bias (general test)
  • A judge’s impartiality is presumed; training etc.
  • Application: no bias b/c his involvement was limited and supervisory, he was responsible for thousands of files at the relevant time, and long time ago
  • STAGE 2: imputation of institutional bias
  • Exception to Baker-rule in the case of the SCC (and other large ADM bodies): no RP could conclude that 8 other judges who heard the appeals were biased or tainted; judges prepare independently, express indep opinions, decisions on who will prepare draft reasons

2.INDEPENDENCE

  • Institutional AND individual (R. v. Valente):
  1. Institutional independence – the extent to which the governing statutory scheme (for a particular tribunal) renders the tribunal free from external control or influence
  2. Individual independence (a question impartiality, see grounds 1. Bias): the extent to which individual tribunal members are free to adjudicate w/o undue influence
  • Independence req’d on spectrum: more adjudicative = more independence req’d; more policy = less independence req’d (Matsqui Indian Band)
  • If the relevant statute clearly authorizes dependence, there will be no remedy available unless those affected can rely on a constitutional or quasi-constitutional argument; Ocean Port v. BC +

R. v. Valente:

  • Criteria for INSTITUTIONAL Judicial Independence =
  1. security of tenure;
  • tenure secure against discretionary or arbitrary interference by exec or other appointing authority
  1. financial security;
  • the right to salary & pension established in law and not be subject to arbitrary interference by the exec in a manner that could affect judicial indep
  • it is preferential that judicial salaries be (i) fixed by the legislature rather than by the executive; and (ii) charged from the Consolidated Revenue Fund rather than requiring annual appropriation
  • BUT neither of these two factors should be regarded as essential
  1. Administrative indep wrt decisions bearing directly on the exercise of its judicial functions
  • requires that the tribunal be able to govern its own administration (eg which judges hear which cases)
  • These minimal conditions which arise from the collective independence of the judge are in addition to the individual judge’s impartiality (ie bias)

Canadian Pacific Ltd. v. Matsqui Indian Band: The Indian Act allowed bands to levy tax on people using the reserve with tribunal for reviewing these levies. Members of the tribunal could but need not be paid and had no tenure in office. Band members were eligible appointees + appointed by Band Chiefs

  • test for institutional indep: whether a reasonable & right-mind person, viewing the whole procedure, would have a reasonable apprehension of bias on the basis that tribunal members are not independent
  • contextual
  • Higher level of independence & more strict application of Valente criteria when tribunal judicial in nature and affects security of person than when polycentric in nature and relating to property rights
  • NOT ALL 3 Valente principles are required in order to satisfy the test for independence.

Bell Canada v. CTEA: in employment dispute Bell brought a motion arguing the HRC was not indep because (i) its guidelines wrt ‘a class of cases’ fettered it; and (ii) the tribunal chair had the power to extend members’ terms in ongoing inquiries infringing security of tenure

  • Mixed functions: the tribunal exercises adjudicative function (high indep) but also implements the policy of govt (ie doesn’t have to be impartial in that respect)
  • neither of the 2 powers challenged by Bell compromises the procedural fairness of the tribunal.
  • Guidelines are law and being fettered by law cannot amount to partiality
  • Extension of tenure is to finish current inquiries and no RP would see this a way for the Chairman to pressure Committee members

CUPE v. Ont. (Ministry of Labour): labour dispute resolution practice could be interpretted in such a way as to require arbitrators appointed by mutual agreement but Minister appointed 4 retired judges of his own choosing and TUs not consulted. TUs complained that appointees lacked expertise, tenure, experience and independence from government.

  • The tribunal DOES NOT lack independence b/c:
  • Labour arbitration is not characterized by financial security or security of tenure beyond the life of the arbitration
    • Chosen to be so by legislature
    • Historically always done this way – deference to this
  • Independence of arbitrators is guaranteed by training and experience
    • Since legislation requires appointment of people w/ the above characteristics, the proper exercise of the appointment process would satisfy concerns about institutional independence
    • Retired judges as a class have no greater interest than other citizens in arbitration outcomes and there is no reason to think they would exercise their power impartially in order to secure further appointments

Institutional decision-making


1DELEGATION

  • Definition: conferring authority hich otherwise that person would have to do himself.
  • Delegation typical of large admin organizations often employing hundreds of staff, making thousands of decisions, and having to work in teams to deal with a range or complex matters
  • RULE: delegates non potest delegare – a delegate may not re-delegate.
  • Exceptions to the rule:
  1. A tribunal or agency may still obtain opinions from someone else (i.e. fact finding may be delegated) provided they comply w/ the duty of fairness;
  2. No delegation if the delegator exercises a substantial degree of control over the discretion that it can be said to direct its own mind to the matter (International Woodworkers)
  3. Delegation can be explicitly or implicitly permitted by the statute conferring the discretion (language, purpose, etc.) – eg ‘Minister’s sole discretion” implies no delegation
  • Balance: duty of fairness vs. agency’s institutional means to discharge its statutory mandate efficiently and effectively

Vine v National Dock Labour Board: NDL Board was responsible for allocating dock labourers to stevedoring companies and had the express power to delegate its functions to local dock boards. Vine did not show up to work, the company complained, and the local board dismissed him.

  • Whether an ADM may delegate depends on (i) the nature of the duty and (ii) the character / constitution of the ADM

2ONLY MEMBERS WHO HEAR A CASE MAY DECIDE IT (CONSULTATION AMONGST MEMBERS)

  • RULE: Only those members of an agency who hear a particular case may decide it.
  • Rationale: A person is denied an adequate opportunity to influence the decision if unable to address directly those who make or participate in making it.

2.1Deciding without hearing:

Jeffs v New Zealand Dairy Production Board: the NZDP Board had power to establish monopolies over certain dairy producing districts after ‘hearing’ the relevant parties. It set up a Committee to hear a demarcation of territory issue and accepted its recommendations without alteration and without hearing any evidence of the hearings.

  • Appointing another to ‘investigate’ (as opposed to ‘deciding’) is not a problem
  • However, the automatic acceptance of the recommendation without a hearing - whether written or oral (indicating they couldn’t have directed their own minds to the evidence) – is not

2.2Consultations among ADM members:

International Woodworkers of America v. Consolidated-Bathurst Packaging: After a hearing, a 3-member Labour Relations Board discussed the case w/ other members of the Board at a “full-board” meeting and then gave its decision. The discussions were only of policy and not of facts related to the case.

  • Content of non-delegation duty (whether and if so to what extent disucssions can occure):
  • Contextual approach: The advantages of holding full board meetings must be weighed against the disadvantages involved in holding discussion in the absence of the parties.
  • Advantages: (i) experience of all the members; (ii) fosters coherence in decision making
  • Disadvs: (i) may jeopardize the opportunity to respond; (ii) may compromise independence if meetings held to reach consensus
  • Independence ≠ absence of influence but rather the freedom to decide according to one’s own conscience and opinions (no compulsion)
  • Safeguards such as no votes, no minutes, no mandatory attendance, and no recordings will go to proving independence & impartiality.
  • No new argument or policy should be proposed during such consultations and discussions should be limited to matters of policy and not issues of fact – otherwise the parties are entitled to respond

Tremblay v. Quebec: T was on social aid and sought reimbursed for dressing and bandages. A two-member panel drafted a decision in the T’s favor but the President of the Commission reviewed the draft, expressed disagreement and called for consultation. At the consultation, the majority of members supported the president’s position and one of the two panel members changed their decision. Due to a tie, the Act stipulated that the President acts as the tie-breaker and the decision went against T

  • The general rule of deliberative secrecy is trumped where the litigant can show valid reason for believing a breach of procedural fairness has occurred
  • Aspects of consultation that may exert undue pressure on decision makers contra proc fairness:
  • Automated process – meetings were held without the decision maker’s request
  • Meeting included votes to arrive at consensus (not just recommendation)
  • Minutes taken
  • the consultation is not limited to questions of policy and law; and
  • the consultation is imposed by a superior level authority within the administrative hierarchy;
  • The President’s involvement was not just to offer an opinion – he called meetings b/c of his disagreement and acted as the tie-breaker.

Ellis-Don Ltd. v. Ontario Labour Relations Board: A TU filed a grievance that employer subcontracted work to a non-TU subcontractor contrary to a collective agreement. The 3-member panel’s first draft decision would have dismissed the grievance, but after a full board meeting a majority of the panel upheld the grievance. ED alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change.

  • Tension b/n the fairness & deliberative secrecy
  • Deliberative secrecy trumps fairness of process here ∵
  • Strong presumption in favor of regularity of the admin process
  • Presumption will be rebutted if there has been a change of facts founding the reasons for the decision (a change limited to questions of law & policy will NOT rebut presumption)
  • Delib secrecy nb for independence and consistency
  • Any risk of breaching fairness in consultation can be addressed by notifying the parties of any new issue addressed in the board meeting and allowing an opportunity to respond.

Payne v Ontario (HRC): investigation staff to employment discrim case recommended the Commission refer complaint to a Board of Inquiry. After 3 meetings the Commission decided not to refer the complaint. Employee had an affidavit of a former member of the Commission that it decided on inappropriate grounds, but no evidence other than that. She asked for disclosure

  • To overcome the presumption of deliberative secrecy, an applicant must present some basis for a clearly articulated and objectively reasonable concern that proc fairness has been infringed
  • Examinations based on conjecture or mere speculation are not to be allowed.

2.3ADM counsel:

          1. At the hearing: counsel cannot overstep the boundary of advisor and assume the ADM’s functions,
  • eg making rulings, intervening to raise issues or question witnesses, or deciding on adjournments
  • Nature of the tribunal nb: in inquisitorial matters, counsel can be more active, adversarial less so
  • Failure to object to counsel’s presence at the hearing may = acquiescence
          1. The preparation of reasons: how much reliance can an ADM place on counsel to prepare reasons without breaching the duty not to delegate or create a reasonable app of bias?
  • The decision made must be that of the tribunal members themselves; counsel should not retire with them to deliberate or else create a reasonable app of bias
  • The reasons of the ADM must be in substance its own not their clerks’ or counsels’

International Woodworkers of America: courts will not be overly critical of language employed by discipline committees (ameliorate negatives of excluding lawyers)

Spring v LSUC: the LSUC adopted the reasons of the Discipline Committee and disbarred Spring for conduct unbecoming. The Committee’s decision and reasons were prepared by a clerk who was not a member of the Committee

  • Held, the clerk merely acted as an amanuensis
  • Dissent: the impact of the decision means a higher threshold of proc fairness is required

Khan v College of Physicians: Khan’s license was revoked after being found guilty of misconduct by a Discipline Committee. In consultation with the Committee, counsel reviewed its first draft, which was sent back for further review and revision before release to the College. The Committee said his advice was restricted to journalistic and administrative assistance and did not involve ‘legal advice’

  • Counsel CAN assist to accurately reflect the reasoning processes of the committee as long as that influence did not extend to interfering with the freedom of the tribunal members to decide independently
          1. Reasons review: where agencies draw up policies to which the reasons of ADMs must conform

Bovbel v Canada: Immigration and Refugee Board referred a draft of a its decision to counsel ito an agency policy

  • The existence of a policy does not per se violate proc fairness, although its content might
  • Counsel’s involvement to ensure coherence of reasons is ok. If they were to discuss findings of fact it would NOT conform with proc fairness

2.4ADM guidelines:

  • Guidelines assist in achieving bureaucratic coherence and transmitting collective experience
  • Should be made available to parties appearing

Thamotharem v Canada: T was an unsuccessful refugee applicant/ The Guidelines to the Immigration and Refugee Protection Act stated that the member of the Board reviewing the application would start the questioning of the applicant. He claimed the proc fairness req’d the right to be his

  • Balance effective decision making + proc fairness = in refugee claims generally: seriousness of rights involved and the generally ‘judicial’ character of the hearing (high proc fairness) vs. proceedings are inquisitorial, and informal, and high case load (low proc fairness)
  • The guideline does not breach the duty of fairness
  • An administrative agency does not require an express grant of statutory authority to issue guidelines and policies to structure the exercise of its discretion (implied duty of consistency in the exercise of discretion)
  • Guidelines can NOT be
  • mandatory, even if they have express statutory licence (unlawful fetter of discretion)
  • monitored for non-compliance

Substantive review


  • History: reticence and functionalism (preliminary vs collateral questions) – Diceyanism (Anisminic)-- significant deference (CUPE v NB Liquor Corp) -- recidivism; juris errors and errors within juris (L’Acadie + Bibeault) -- pragmatic and functional; deference depends on context and purpose not type of question (Pushpanathan) -- only 2 stds of review (Dunsmuir)
  • Jurisdiction: jurisdiction to act is made up of 2 conditions:
  1. a determination of whether the conditions precedent to the exercise of authority are present (‘preliminary question’); AND
  2. the permitted or mandatory exercise of powers that determination (i) establishes (‘collateral question’)
  • Both are questions of interpretation
  • NO satisfactory test has emerged to distinguish the two
  • Both factual, legal (express and implied), or discretionary factors
  • Standard of review analysis: an analysis of the appropriate level of deference
  • Application: interpreting the relevant statutory scheme and evaluating the evidence against the backdrop of the applicable standard of review

1ESTABLISHING THE MODERN STANDARD OF REVIEW

CUPE v. New Brunswick Liquor Corporation: Union went on legal strike and employer replaced striking employees w/ management personnel. The Public Service Labour Relations Board decided management fell within the strikebreaking provision that prohibited ‘other employees’ from scabbing. Issue was whether the Board has juris to hear the matter and if so whether its interp of the provision was PU.

  • REJECTS the notion that courts can define the scope of a ADMs authority by classifying a question as preliminary or not
  • Std of review a matter of interpretation: we look to the enabling statute: statutory context and legislative purpose
  • High deference ∵ of Board’s understanding of collective bargaining and experience (area of expertise / heart of its jurisdiction), and presence of a privative clause

Doctrinal importance of the case:

  • Expertise: co a specialized body better suited to det the most appropriate interp to be given to its jurisdiction ∵ it is better placed to understand the ends the Leg had in mind wrt its area competence
  • Ambiguous provisions: where legislation ambiguous (and thus capable of many interps) the court opened the door to patent unreasonableness review, ie if specialist ADMs were in a in better position to determine the most appropriate interp of its juris, the maintenance of the courts’ juris could only be based on an ADM construction that could not rationally be supported by the relevant legislation
  • Preliminary questions: shifted the focus from a preliminary vs collateral question to focussing on the intent of the legislature more broadly (beginning of the P&F approach); no distinction between ‘juris errors’ and ‘errors within juris’

 Dichotomy obviously problematic from a realist perspective, ie a court could go out of its way to interpret a clause as an error of jurisdiction and say the decision was ultra vires for a trivial error

2THE MODERN STANDARD

Pushpanathan v. Canada: Appellant convicted of trafficking drugs and while on parole, he renewed his claim for Convention Refugee Status. The Immigration and Refugee Board rejected him ∵ he was guilty of acts against the purpose and principles of the UN. Issue was what the proper std of review was

  • The central inquiry in determining the standard of review is the legislative intent of the statute creating the tribunal whose decision is being reviewed,
  • Specifically, whether the question which the provision raises is one that was intended by the legislators to be left to the exclusive decision of the Board.
  • We can still speak of ‘jurisdictional questions’ which must be answered correctly by the ADM to be said to act intra vires but a question that ‘goes to jurisdiction’ is simply descriptive of a provision for which the proper standard of review is correctness, based on the outcome of the P&F analysis
  • That a question is jurisdictional is not determinative of the standard of review to be applied, it is a classification that is a function of a correctness standard of review being deemed appropriate on the P&F analysis
  • Factors to be considered in determining standard of review :
  1. Presence or absence of a privative clause or statutory right of appeal
  • More stringent the privative clause (‘full privative clauses’, ef ‘final and conclusive’, ‘no appeal’ etc) the more deference
  • The absence of a privative clause is neutral
  • A statutory right of appeal means a lower level of deference applies
  1. Relative expertise of the tribunal
  • Expertise is a relative concept w/ 3 dimensions:
  1. expertise of the tribunal;
  2. court’s own expertise relative to that of the tribunal;
  3. the nature of the specific issue b/f the admin decision maker relative to this expertise
  • Fundamental question: Does the decision making body have a high level of expertise relative to the court and relative to the particular issue in question?
  • Expertise depends on a number of factors incl (the composition of the board (ii) how often it deals with the kind of case; (iii) Board follows some special procedure giving it a relative advantage over the courts; (iv) appointed ad hoc or permanent?
  • Where an issue lies at the core competency of the tribunal = high deference (CUPE)
  1. Purpose of the Act as a whole and the provision in particular
  • Where the purposes of the statute & ADM are to resolve disputes or determine rights between two parties = low deference
  • Where the purposes of the statute & ADM are to balance competing interests (“polycentric issues”) = high deference
  1. Nature of the problem: A question of law, fact, or mixed law & fact
  • Questions of law (esp highly generalized ones)  low deference to ADM
  • Question of fact  higher deference to tribunal b/c it was primary finder of facts.
  • But there is no clear line between questions of law and fact and many determinations involve questions of mixed law and fact.

CUPE v. City of Toronto

Dissent (LeBel and Deschamps)

  • Reasonableness = after a ‘probing’ examination’, whether the reasons given, when taken as a whole, support the decision. If so, the decision stands even if the explanation is not one the court finds compelling.
  • Patent Unreasonableness = The court must ask whether the decision is so flawed that no amount of deference can justify letting it stand. When the defect is obvious, that decision can be described as ‘clearly irrational’
  • Criticism that the patent unreasonableness and reasonableness simpliciter are indistinguishable
  • PU and reasonableness standards both require an assessment of rationality.
  • Either a decision is rational or irrational.
  • To allow PU would be to require parties to accept a decision that is est as unreasonable
  • What diff does it make if the irrationality is obvious or requires probing to be discovered?
  • In the end, the essential question remains the same under both standards: Was the decision taken by the tribunal in accordance with reason? If not, it is invalidated. Seems to suggest a fusion of the reasonableness & PU standards into one standard.

Dunsmuir v New Brunswick: Dunsmuir was employed a legal officer by the Dept of Justice and employment was regulated ito private law and the Civil Services Act. After a rocky relationship he was sent a termination letter with pay in lieu of notice (ito CSA). Dunsmuir took the matter to adjudication where the arbitrator interpreted the PSLRA (a question of law) to mean he could inquire into the reasons for dismissal. After inquiring into these reasons, the arbitrator reinstated D. Issue concerned the JR of the arbitrator’s decision. The PSLRA contained a full privative clause

  • JR court must balance the rule of law, and avoid undue interference with the discharge of administrative functions iro the matters delegated to administrative bodies by Parliam + Legs
  • P&F test provides great flexibility but little real on-the-ground guidance and offers too many standards of review, ie big thing is clarity wrt the standards of review
  • There ought to be only 2 standards of review
  1. correctness
  2. reasonableness
  • Reasonableness = a decision will be unreasonable if it is not supported by any reasons that can stand up to a probing examination, ie if any of the reasons sufficient to support the decision will stand up to a ‘somewhat probing examination’ the decision is not unreasonable (Law Society of NB v Ryan)
  • reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also whether the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, ie there can be more than one reasonable outcome
  • more deferential
  • Correctness = court will conduct its own reasoning process to arrive at the decision it thinks is correct, which if different from the administrator, is then substituted as the decision made
  • least deferential / most exacting
contd
  • Pushpanathan factors:
  • Not always necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard (the minimum) in a specific case.
          1. presence or absence of a privative clause,
      • presence is strong indication of reasonableness review
      • presence can never completely remove scope for JR
      • presence or absence, a measure of deference appropriate where a particular decision had been allocated to an ADM rather than to the courts
          1. nature of the question before the ADM: A question of law, fact, or mixed law & fact
      • Question is one of fact, discretion or policy, correctness review
      • Legal and factual issues are intertwined, correctness review
      • Question is one of law of central importance to the legal system and outside the specialized area of expertise of the ADM, correctness review (CUPE v Toronto)
  • const issues (Martin)
  • ‘true’ juris issues (narrow interp, ie where the provision explicitly provides for an issue to be constitutive of authority)
      • Deference even if legal question if (i) ADM is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity, OR (ii) ADM has developed particular expertise in the application of a general common law or statutory law rule iro a specific statutory context, reasonableness review
          1. Relative expertise of the tribunal
          2. Purpose of the Act as a whole and the provision in particular

3REARTICULATING THE MODERN STANDARD

*** see Administrative Tribunals Act SBC 2004, ss 58-59: legislating the standard to be applied in the case of the presence or absence of privative clauses in BC acts


Canada (Citizenship and Immig) v Khosa: immigrant was convicted of criminal negligence for dangerous driving and a removal order was issued to return him to India. An appeal body denied special relief on humanitarian and compassionate grounds ito the Immigration Act which included a privative clause. The decision was based on the facts of the crime and K’s position, esp K’s unwillingness to admit he was racing.

The Federal Court dismissed his application for JR, holding that the special relief question and the factors employed were highly polycentric and required high deference, ie patent unreasonableness.

The Federal Court of Appeal held that the one factor considered by the body - the possibility of rehabilitation - was a legal factor that did not attract high deference, ie reasonableness simpliciter. It set aside the IAD decision.

At issue was the exercise by judges of statutory JR powers ito the Federal Court Act which ostensibly stipulated the std of review in various circumstances (fact, law, discretion etc.) independent of context

  • Dealt with the approach to take iro the interplay of JR legislation and the common law
  • Where the legislature has enacted judicial review legislation specifying a particular standard of review, that legislation is the first order of business
  • The leg must be interpreted purposefully in light of its text, context (esp the CL) and objectives
  • By using terms like ‘PU’ or ‘reasonableness’, the Legislature obviously intended the statute to be understood in the context of the CL (gives eg of BCs Admin Tribunals Act)
  • Also the presumption that legislation and CL meant to be read together as far as possible
  • although the formal term PU may exist in the legislation, its content is determined by the change in the principles of admin law brought about by Dunsmuir
  • The intent was to capture when the FCs can review federal ADMs (grounds) NOT how it must do so (standards)
  • Note however the legislature can by clear and explicit language oust the common law in this as in other matters, ie a legislature has the power to specify a standard of review if it manifests a clear intention to do so
  • Where the language is not clear, the courts will
          1. will not interpret grounds of review as standards of review,
          2. will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and
          3. will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth).

5PATENT UNREASONABLENESS

  • Dunsmuir said that the reasonableness standard of review must be ‘animated by the principle that underlies the development of the previous two standards of reasonableness’, ie Dunsmuir reasonableness subsumed patent unreasonableness, it did not replace it.

Domtar Inc v Quebec:

  • When decisions are not (patently) unreasonable, the principles underlying curial deference should prevail and administrative tribunals have the authority to err within their area of expertise
  • A lack of unanimity [inconsistency] is the price to pay for the decision-making freedom and independence given to the members of these tribunals; recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of those principles given that administrative tribunals and the legislature have the power to resolve such conflicts themselves

Toronto Board of Education v OSSTF District 15:

  • A finding of fact based on no evidence is (patently) unreasonable BUT a court should not intervene where the evidence is simply insufficient, ie only intervene where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact
  • In order to decide whether a decision of a tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law but the court should NOT weigh evidence

The use and misuse of discretion


1. ABUSE OF DISCRETION AS A GROUND OF JUDICIAL REVIEW

  • Definition: Discretion means an express legal power to choose a course of action from a range of permissible options, including the option of inaction.
  • NB grounds for judicial review of discretion:
  1. Bad faith
  2. Ulterior purpose (purpose not contemplated by statute)
  3. Irrelevant ground / failure to consider a relevant ground
  • Constitutional limitations on discretion: all discretionary decisions must conform - like the statutes from which they draw their authority - with the Charter (Slaight Communications)

Roncarelli v Duplessis: Courts are justified in performing an oversight function because of their independence of the administration and their expertise in the interpretation of statutes


Baker v. Canada:

  • P&F approach / standard of review applies to discretionary decisions as well as well as mandate one
  • Discretionary decisions will generally be given high deference
  • However, that discretion must be exercised in accordance w/ boundaries imposed by the statute, the rule of law, Charter values etc.

1.1Abuse of discretion as a ground of review

Suresh v. Canada: What is the standard of review to be applied to the following discretionary decision: whether Suresh's was a danger to national security?

  • Std of review: Applying the Pushpanathan factors to the P&F analysis the Minister had a broad discretion in issuing his opinion & thus high deference should be afforded
  1. Presence or absence of a PC or ROA: Although opinion not protected by a privative clause, it may only be appealed by leave to the Fed Court. Parliament intended only a limited right of appeal = high deference.
  2. Relative expertise of the decision maker / level of political seniority: Minister has access to special information and expertise in matters of national security = high deference.
  3. Purpose of the provision & Act generally: Purpose is to permit a ‘humanitarian balance’ of various interests; Minister is in superior position to make this assessment = high deference.
  4. The nature of the question: Inquiry is highly fact-based and contextual; not one involving the application or interpretation of definitive legal rules = high deference.
  • (used language of PU) Broad discretionary decision should only to be set aside where arbitrary, mala fide, cannot be supported by evidence, failure to consider relevant factors.
  • The court should NOT reweigh the appropriate factors merely b/c it would have come to a different conclusion

Shell Canada Products Ltd. v. Vancouver (City): city of Vancouver adopted a resolution not to do business with Shell while it did business in apartheid South Africa. Question was whether the City of Vancouver exercised its statutory discretion for an improper purpose b/c the City’s decision not deal w/ Shell was based on conduct by Shell outside Vancouver, & hence irrelevant to municipal concerns.

Majority (Sopinka J. + 4)

  • Adopts a narrow view of municipal powers & a less deferential approach to review; as creatures of statute, municipalities must stay w/in the powers conferred on them by the provincial legislature; any exercise of their powers are reviewable for vires.
  • A municipality can only act in accordance with its purposes (health, welfare, good govt etc):
  • If purposes are express, the decision is reviewable for vires
  • If purposes are implied, any ambiguity must be resolved in favour of the citizen, especially when those purposes are outside of the ‘usual range’

Dissent (McLachlin J. + 3)

  • Adopts a more generous view of municipal powers & a more deferential approach to review
  • Courts must accord respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them;
  • Intervention is only warranted where the municipality’s exercise of its powers is clearly ultra vires.

1.2Failure to consider relevant factors

  • ADMs cannot be expected to assemble ALL the factors they may lawfully take into account, distinction btw permissive relevant considerations and mandatory relevant considerations
  • Whether a particular factor is mandatory or permissive is determined by (i) the express and implied terms of the statute, and (ii) its importance to the discharge of the statutory mandate

CUPE v Ontario: case re appointment of labour arbitrator that TUs thought had to be mutually agreed on but ito the relevant hospital labour act, had to be “a person who is, in the opinion of the Minister, qualified to act”. The TUs claimed his appointments tool into account the wrong factors (ie he chose retired judges)

  • The Minister’s discretion is constrained by the scheme and object of the Act as a whole, which is to create a ‘neutral and credible’ arbitrator
  • Although the power is expressed in broad terms, the Minister still required to have regard to relevant labour relations expertise, independence, impartiality and general acceptability within the labour relations community
  • The p&f approach applies to the JR of the exercise of a ministerial discretion and factors such as the existence of a privative clause, the Min’s expertise in labour relations, the nature of the question and the wording of the Act all call for considerable deference. A PU appointment is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand.

1.3Multiple purposes and considerations

  • Prevailing view is the court will only hold such decisions to be ultra vires if the unlawful purposes or relevant/irrelevant consideration played a dominant or material role in the exercise of the discretion, Canadian Regulated Importers

2 DISCRETION AND THE CHARTER

Slaight Communications: D was dismissed by Slaight and at arbitration the possible remedies included ‘any other thing that is equitable to require the employee to do in order to remedy or counteract any consequence of the dismissal’. The arbitrator ordered Slaight to give D a letter of recommendation of specified content (the positive order) and to respond to inquiries made about D solely by sending the letter (the negative order). Issue was whether the negative order was acceptable given Charter s 2(b)

  • Application of the Charter: The negative order was a remedy contemplated by the statute (within the remedial jurisdiction of the adjudicator) the arbitrator was part of the govt in making the decision and thus s 32 sees the Charter apply
  • The order is a breach of s 2(b) but justifiable ito s 1 on an Oakes test

Chamberlin v Surrey School District: a teacher asked the surrey School Board to approve 3 books depicting families were the parents were same-sex ito its discretion ito the Schools Act. The Board refused on the basis of parent’s religious objections to the morality of such unions. C challenged the decision on the bases that (i) the Board acted outside its mandate ito the Schools Act and (ii) the decision violates the Charter

  • To determine the std of review we adopt the P&F approach and take the Pushpanathan factors into account
  • Deference ∵ of expertise etc. is tempered (HR dimension of the issue) by the School Act’s requirement that the discretion to approve books conform to norms of tolerance, respect for diversity, etc. = reasonableness review [intermediate form of review, before Dunsmuir]
  • Factors
  • Purpose: Secularism, diversity etc. are overt policies of the Schools Act
  • Role of the Board: elected and representative of the community but not a legislature; defined ito statute that it must conform to
  • The exercise of discretion is constrained by the a purposive mandate of the statute
  • The relevant Charter values are incorporated in the requirements of the School Act, religion can be taken into account (representative role) but can NOT be used as a basis for advancing particular religious agenda
  • The Board, proceeded on an exclusionary philosophy in makings its decision, rather than on the basis of respect of all types of families
  • The Board acted outside the mandate of the School Act by failing to apply the criteria required by the Act, ie the decision was based entirely on religious grounds and breach the requirements of secularism and tolerance in its enabling statute

3REVIEW OF DISCRETION IN CREATING DELEGATED LEGISLATION

  1. Governor-in-council made delegated legislation:
  • delegated leg not reviewable if dealing with matters of public convenience and general policy but otherwise must comply with statutorily prescribed limits (Thorne’s Hardware)
  • delegated leg must conform with the purposes of the enabling statute (Toohey)
  1. Ministers and independent agencies made delegated legislation (regulations)
  • A decision made under regulations will be ultra vires on the basis of the nature and objectives of the legislation and the precise boundaries of the area of activity over which the ADM is given statutory power BUT deference is given to the fact that Parliament delegated the power to decide to the ADM (Cox v College of Optometrists)
  1. Municipal bylaws:
  • Grounds of review (greater scrutiny of municipalities) = municipal action can be reviewed on lack of juris (express/implied authority, incl purpose), abuse of power (effect of exercise of power), and failure to observe required formalities in the exercise of power (eg publicity) (Immeubles Port Louis)
  • Abuse of power (effect of exercise of power) = a wider class of circumstances may give rise to an abuse of power (i) unreasonableness; (ii) oppression; (iii) discrimination (Shell v Canada)

4UNREVIEWABLE DISCRETIONARY POWERS?


4.1Prerogative powers and non-justiciability

  • Def/n of Justiciability: Something that is w/in the jurisdiction of the courts.
  • Until the mid-80s, it was normally assumed that the principles of judicial review applicable to the exercise of statutory discretion did not extend to the non-statutory powers of gov/t
  • The majority of admin programs are delivered under stat. authority
  • BUT there are some areas in which the gov/t relies on the CL power of the Crown, including the royal prerogative, eg passports, honours, treaties, armed forces
  • Now, in determining whether any discretionary power is exempt from review on the grounds normally applicable to the exercise of discretion, the courts will be influenced more by the nature of the particular power in question and less by its legal source.

Lorne Sossin, An Overview of the Law of Justiciability in Canada

  • Criteria used to make the determination of justiciability:
  • The capacities and legitimacy of the judicial process;
  • The constitutional separation of powers
  • The nature of the dispute b/f the court

Operation Dismantle v. the Queen: claim that testing of cruise missiles in Canada pursuant to US agreement violated their Charter rights under s. 7 ∵ it increased the risk of attack on Canada.

  • Appellants’ claim was struck down for disclosing no reasonable cause of action
  • Abolished the doctrine of political questions in Canada (entitled the courts to refrain from deciding an issue b/f it on the ground that the issue in question was ‘political’ in nature)
  • Issue of justiciability:
  • The executive branch of gov/t is subject to the Charter wrt both decisions made pursuant to its stat. authority AND its prerogative powers
  • However the particular issues raised in this case were deemed non-justiciable, not simply b/c of evidentiary difficulties (causal link), but b/c they involved moral & political considerations which are not w/in the province of the courts to assess.
  • Doctrinal significance: Courts may now review decisions made by the gov/t under prerogative powers (provided justiciability is satisfied).

Black v. Canada (Prime Minister): UK gov/t was going to grant Conrad Black the privilege of sitting on the HOL but PM Chretien called the Queen and exercised his prerogative power ito the Nickel resolution (requesting sovereign not to grant honours to Canadians).

  • The source of the power – statute or prerogative – should not determine whether the action complained of is reviewable, rather its subject matter is determinative
  • The exercise of a prerogative power will be amenable to the judicial process if it affects the rights of individuals
  • At one end of the spectrum are issues of high policy: non-judiciable exercises such as signing treaties and declaring war and at the other end of the spectrum are mundane affairs of govt: judiciable exercises such as refusal of a passport.
  • The honours prerogative falls somewhere in between
  • Here the actions of the PM in exercise of the honours prerogative was not judicially reviewable b/c no important individual interests were at stake
  • Black’s rights were not affected; no Canadian citizen has the right to an honour
  • The conferral of an honour engages no liberty, proprietary, or economic interests; it enjoys no proc. protection; it doesn’t have suff. legal component to warrant the court’s intervention
  • Instead, it involves “moral and political considerations which it is not w/in the province of the courts to assess” (Operation Dismantle)

4.2Public interest immunity (state privilege)

  • Claims to public interest immunity are reviewable. Depending on the type of document involved (cabinet meetings, police informers etc.) the guidelines differ but judges may privately examine them to make the determination
  • Ss 37-9 Evidence Act exempt certain federal docs from even private scrutiny (Charter?)

The jurisdiction of tribunals to decide constitutional challenges


1.JURIS OF TRIBUNALS TO DECIDE CONST CHALLENGES TO THEIR OWN ENABLING LEGISLATION

Martin v. Nova Scotia Two injured workers got temporary benefits but cut off once ‘injury’ became ‘chronic pain’. They claimed s 15 for disability discrimination to Workers Compensation Appeal Tribunal

  • Methodology to det if tribunal has Charter juris (implication should generally arise from the statute itself, rather than from external considerations)
          1. Does the statute gives the tribunal express juris to decide questions of law
          2. Does the statute as a whole give the tribunal implied juris to decide questions of law:
  • Statutory mandate: is deciding questions of law necessary for the tribunal to fulfill its statutory mandate, ie does it interpet / apply CL principles and other legislation
  • Interaction with other elements of the administrative system:
  • Tribunal adjudicative in nature: power to summons, compel testimony etc.
  • Practical considerations: incl capacity to hear questions of law (although practical considerations cannot override clear implication)
          1. If found to have explicit / implied juris to decide questions of law it will be presumed to include jurisdiction to determine Charter issues
          2. Party alleging lack of jurisdiction may rebut the presumption by:
  • pointing to an explicit withdrawal of authority to consider the Charter; or
  • the statutory scheme indicates that the legislature intended to exclude the Charter (or constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal.
  • Authority once established
  • Subject to JR on correctness standard (question of law)
  • Can declare a section of its enabling Act invalid
  • Declaration NOT binding on future decision-makers either within or outside of the tribunal’s own administrative scheme (formal declaration by court needed to bind)

Paul v. BC (Forest Appeals Commission): Paul, a registered Indian, cut trees. Logs were seized from him for violating the general prohibition against cutting Crown timber but he claimed he was exercising aboriginal rights under the Charter and was entitled to timber. Issue was whether the provincially est Forest Appeals Commission could here the aboriginal rights defence (a constitutional issue)?

  • The same approach applied in Martin for a Charter issue is applied here for a Constitutional issue (ie s 52(2) texts), ie Charter AND distribution-of-powers review

***see

  • ss 43-45, Administrative Tribunals Act SBC 2004:
  • ss 10-16, Administrative Procedures and Jurisdiction Act RSA 2000: allows the Alberta LG to designate ADMs as competent to hear Const issues

2THE APPROPRIATE FORUM

Webber v Ontario Hydro: Webber was on workman’s comp ito a collective agr. Ontario Hydro sent a PI to investigate him for malingering and this resulted in his benefits being suspended. He claimed a Charter privacy infringement. Employer argued the Ont LRA req’d collective agreement dispute to go to arbitration. Issue is whether an arbitrator (or any ADM) is ‘a court of competent jurisdiction’ ito s 24.

  • ADMs are empowered to grant such remedies as the law allows them; in order to award a Charter remedy, an ADM must have specific juris to do so
  • 2 part test to s 24:
          1. whether in general the ADM is the type of body that can be granted remedial juris (‘a court’); +
          2. whether it in fact has jurisdiction over the matter ito a) the parties, b) the subject matter, and c) the remedies sought (‘of competent juris’)
  • A matter of statutory interp if the leg grants powers to make Charter determinations, it is implied that the ADM has power to Charter dispense remedies

3THE STANDARD OF REVIEW

  • Administrative decisions about (constitutional) jurisdiction are subject to review on a correctness standard (Cuddy Chicks; Douglas College; Martin)
  • If it had jurisdiction, its decision on the constitutional question is also subject to correctness review (Cuddy Chicks)

Multani v. Commission scolaire: Sikh student dropped his kirpan at school. His parents and the school board agreed that he would wear his kirpan sewed it into his clothes. The school Governing Board refused to ratify the agreement. It was argued it was unconst

Majority (McLachlin J.) - direct to Charter

  • Since the complaint is based entirely on freedom of religion, the administrative law standard of review was not relevant.
  • Where the legislation confers a discretion and does not confer, either expressly or by implication, the Charter juris, the decision should be subject to s 1 analysis
  • Compares reasonableness review and minimal impairment

Dissent (Abella & Deschamps JJ.) - Charter application (if relevant) through the std of review

  • The admin law approach must be retained for reviewing mere decisions made by admin bodies (no application of Charter to individuals)
  • If an admin body makes a decision or order that is said to conflict with fundamental values, the mechanisms of administrative law — including the standard of review — are readily available.
  • Does NOT agree with equating minimal impairment (ito s 1) and reasonableness review; the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties, the justification of minimal impairment is based on societal interests.

Standing


Advantages of Granting Public Interest Standing:

  • Democratic accountability
  • Greater judicial recognition and vindication of group rights

Disadvs of Granting public Interest Standing:

  • Increases burdens overburdened judicial system
  • Floodgates
  • Institutional competence of courts to evaluate concrete issues,
  • politicization of the courts
  • Costs of litigation mean only the privileged can take advantage

1INDIVIDUAL INTEREST STANDING:

Finlay v. Canada (Minister of Finance): Finlay was receiving social assistance and sought an injunction of fed transfers to Manitoba under the Canadian Assistance Plan claiming it would result in him getting less assistance.

  • Finlay did NOT have a sufficient personal interest in the legality of the federal cost-sharing payments:
  • TEST: personal interest = likely to gain some advantage if his action succeeds (other than the satisfaction of righting a wrong, upholding a principle or winning a contest) or to suffer some disadvantage if his action fails. (other than a sense of grievance or a debt for costs)
  • Here, it was not certain what the prov. gov/t would do if the feds made the proper transfer

2PUBLIC INTEREST STANDING (OUTSIDE OF CONSTITUTIONAL ISSUES)

Finlay v. Canada (Minister of Finance): Issue was whether, if Finlay did not have a personal interest in the legality of the transfer payments [which he didn’t], the court have a discretion to recognize public interest standing? If it did have such a discretion, should it be exercised in favour of Finlay?

  • Courts have a discretion to grant public interest standing to an individual where the following 3 factors are satisfied:
  1. Is there a serious justiciable issue regarding the validity of a challenged law or action?
  • Is there a legal issue w/in the proper role of the courts?
  • If there is a legal issue it doesnt matter that its policy context is better left to Leg or Exec
  • Are the claims too wide/sweeping/cover too much of the Act? = against standing
  • Are the claims too hypothetical? = against standing
  • Are the claims too political? = against standing
  • Application: Questions raised by Finlay are questions of law
  • Is that legal issue serious or frivolous?
  • Applications: real issue here / not frivolous
  1. Does the interested party have either a direct interest or a genuine interest in the validity of the legislation or action?
  • Has the party demonstrated a real and continuing interest in the issues?
  • Application: Finlay was a person in need of assistance and has a genuine interest
  1. Is there no other reasonable and effective way of bringing the matter before the court?
  • Court has the benefit of the competing points of view
  • Have others been consistently bringing challenges? = against standing
  • Can others bring more concrete and clear factual basis ? = against standing
  • Is it well established that the group is vulnerable to continued existence of legislation in an unchallenged form? = for standing
  • Application: Nature of legislation demonstrates that no one else has a more direct interest 

Notes:

  • One of the implications of Finlay is that the discretion of the court only comes into play when the applicant fails to establish standing by reference to the traditional CL rules or relevant statutory provisions wrt standing. Where CL or statutory standards are met, the pl is entitled to bring the case as of right.

Can. Council of Churches v. Canada (Minister of Employment & Immigration): CCC represented group for the protection and resettlement of refugees. Amended Immigration Act changed the procedures for determining who was a Convention Refugee. CCC claim the amended provisions violated the Charter

  • CCC not granted public interest standing b/c it failed to meet 3rd part of the Finlay test
  • The purpose of granting status is to prevent immunization of legislation or public acts from challenge. The granting of public interest standing is NOT required when, on a BOP, it can be shown that the measure will be subject to attack by a private litigant.
  • Ie failed on the no other reasonable and effective way test: other people in a more concrete factual manner are likely to bring a challenge (refugees themselves)

Vriend v Alberta: Vriend fired from religious school where he taught for being a homosexual. Claimed redress under Alberta Individual Rights Protections Act but denied ∵ it did not prohibit same-sex discrim. Gay + lesbian org’s and he brought a s 15 challenge on the employment provisions (indiv interest) but ALSO all the provisions of the Act with a list of proscribed discrim which did not include same-sex

  • Members of the public can bring a claim against legislation offending constitutional interests
  • It was a serious and justiciable issue (const issue), they had a direct interest (this is not really an employ discrim case), and there were no other reasonable and effective ways to bring the issue before court (waiting for someone else to be discriminated against would be unfair to the litigants – imposing cost, delay and person vulnerability – besides being a wasteful of judicial resources)

Harris v. Canada: Harris was a member of an organization that seeks to ensure the fair administration of the taxation system. He claimed Min National Revenue had acted illegally in providing another taxpayer w/ a favourable private advance ruling while maintaining a different position publicly. Harris requested that the AG bring the case twice; but he refused. Harris claimed ulterior motive (serious infringe)

  • If Revenue Canada makes compromise agreements or covert deals or provides preferential treatment to certain taxpayers w/o statutory authority, public interest standing may be granted to challenge the tax treatment that Revenue Canada affords the taxpayers who benefit
  • It was a serious and justiciable issue (improper motive), he had a direct interest (taxpayer + organization rep), and there were no other reasonable and effective ways to bring the issue before court (AG refusal + unlikely taxpayers would do so ∵ favourable to them)
  • Shows importance of AG refusal in satisfying 3rd part of Finlay test

3THE ROLE OF THE ATTORNEY GENERAL

  • Traditionally, the unreviewable discretion of the AG needed for public interest standing
  • BUT, conflict of interest (AG part of Cabinet), AG not receptive to diversity of the public int, impractical that AG be sufficiently vigilant

Energy Probe v. Canada (Atomic Energy Control Board): Energy Probe challenged the renewal of a nuclear reactor license on grounds of bias of a member of the licensing authority. The court accepted it had pub int standing but it then argued the AG should not be a party to the dispute.

  • Basis for AG standing is
  1. the protection a Crown interest [prob det by Finlay adv/disadv individual int test]; and
  2. the issue b/f the court was one of “general importance” and of such a nature that the Court deemed it beneficial to hear the arguments of the AG to ensure all arguments canvassed.

4THE STATUS OF THE AUTHORITY UNDER ATTACK

Ontario (Children’s Lawyer) v. Ontario Information & Privacy Commissioner: CLO was litigation guardian for child in 3 civil cases. When she became an adult, she wanted her file but the CLO refused relying on Freedom of Information and Protection of Privacy Act (disclosure exemption for info/recommendations prepared by Crown counsel/public servants). She appealed to the Information and Privacy Commissioner who ordered the release but CLO applied for JR of the Commissioner’s decision on the basis that he did not have standing to participate in the application.

  • Judicial Review Procedure Act (ON) gives a tribunal the right to be a party to a proceeding if it chooses to do so; Commissioner’s choice regulated by its empowering statute (Privacy Act)
  • Where a tribunal’s empowering legislation does not specifically articulate the tribunal’s role (which it doesn’t), the scope of standing accorded to it is a matter for the court’s discretion.
  • This discretion will be exercised based on considering 2 relevant factors:
  1. The importance of having a fully informed adjudication of the issues b/f the court
    • Principal Question: Whether the participation of the tribunal is essential to achieve a fully informed adjudication of the issues b/f the court.
    • A tribunal is likely to be given standing, and be able to make submissions, where:
  1. The tribunal has specialized expertise (i.e. the decision involves matters peculiarly w/in the tribunal’s expertise), or
  2. There is no alternative knowledgeable advocate (ie would otherwise be unopposed)
  1. The need to maintain the tribunal’s impartiality
    • Principal Question: would participation of the tribunal undermine future confidence in its objectivity.
    • A tribunal is not likely to be given standing where:
  1. The tribunal’s role was not to evaluate the interests of an applicant against a legislative standard but to resolve disputes b/n 2 litigants;
  2. The nature of the issue under review is such that participation of the tribunal might create an apprehension of bias
  • Court finds in favour of full tribunal participation

Remedies


1COMMON LAW REMEDIES – PREROGATIVE WRITS

  • Types of writs (* newly added)
  1. Certiorari: to quash the decision
  2. Mandamus: forcing the public actor to do a particular thing
  3. Prohibition: preventing the public actor from doing something
  4. Habeas Corpus: reviewing the detention of an individual
  5. Quo warranto: challenge the assumption of public office
  6. *Injunction: court stops the proceedings (enjoins parties from proceeding)
  7. *Declaration: court-made statement of relationships/duties/rights (NOT available where individuals bring action)

1.1The reach of public law remedies: govt in private relations

Volker Stevin v Northwest Territories: under a policy doc issued by the govt of the Northwest Territories an Advisory Committee was set up to designate certain businesses as having preferential status when it came to applying for govt tenders. In administration of that policy, the Committee revoked VS’s preferent status and it applied for certiorari to quash the decision

  • Purely commercial relations NOT reviewable, eg procurement
  • This was NOT the exercise of statutory authority but it was the exercise of govt power; part of the machinery of govt
  • Reviewability depends on the nature of the power exercised and not necessarily its source
  • ∴ even though the this had a procurement dimension it went beyond accepting /rejecting a tender bid; it affects the ability of VS to do business in NW Territories

2ALLOCATION OF REVIEW AUTHORITY (FED/PROV)

  • BNA, s 101, grants the federal govt the power to make new courts to supervise the laws of Canada
  • On the basis of its power under s. 101, the fed gov/t enacted the Federal Courts Act which then created the FCTD & the FCA (“s. 101 courts”)
  • Fed courts have the power (under statute) to review the decisions of federal boards & agencies
  • Fed courts have NO inherent juris so their juris depends on conferral ito the FC Act) or the enabling legislation (Roberts v Canada)
  • BNA s. 96, allows provincial Superior Court judges to be appointed by fed (“s. 96 courts”)
  • Source of powers of the Superior Court: (1) statute; and (2) inherent jurisdiction
  • Inherent juris cannot be removed by Parliament through ordinary leg (eg FC Act)
  • Mostly, the choice on whether fed / prov will depend on the source of the power, ie tribunals created by Parliament = fed review, tribunals created legislatures = prov review

3SCOPE OF FEDERAL REVIEW POWER

  • Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which have presumed juris, unless removed by statute)

Exclusive Judicial Review Jurisdiction of the Federal Court

s 18(1): subject to s 28 (FCCA excl juris) the FCTD has exclusive JR jurisdiction wrt any federal board, commission or other tribunal…and the court can issue injunction, certiorari, prohibition, mandamus, or grant declaratory relief.


Defn of “federal board, commission or other tribunal” (main threshold to application of FCA and Fed JR)

s 2: any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body established under a law of a province or any persons appointed under or in accordance with a law of a province or under s. 96 of the Constitution

∴ Fed court excl juris extends to

              1. Acts of Parliament (primary / suborinate);
  • Does NOT apply to corporate bodies established ito fed legislation including Crown corporations, band councils, boards of directors of corps. Incorporated under the CBCA; Canada v. Lavell
              1. instruments issued in exercise of a royal prerogative (regulations etc.)
  • Does NOT apply to direct exercises of a prerogative power; Black v. Canada (Nickel resolution prerog power exercised to recommend no honour on Black)

Exclusive jurisdiction of FCCA (ie excl from both Superior Courts and FCTD)

28.(1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:

  • Incl those under Agricultural Products Act; Radio-television and Telecommunications Commission Act; the Canada Pension Plan; Canadian International Trade Tribunal Act; National Energy Board Act; Canada Labour Code; Public Service Labour Relations Act; Copyright Act; Canada Transportation Act; etc.

3.1Test for Federal Court juris

  • Federal courts have juris that is expressly conferred or implied by statute (cf. Prov courts which have presumed juris, unless removed by statute)
  • Test basically a matter of the defn of “federal board, commission, or other tribunal” in FCA, s2
  • However, s 2 does not reach all bodies employing federal power (esp Crown Corporations) so International Terminal Operators v Miida Electronics
    • 3 part test
        1. A statutory grant of jurisdiction by Parliament: Federal Courts Act or the enabling statute
        2. An existing body of federal law which is essential to the disposition of the case and which underpins the statutory grant of juris: the case must be governed by a federal Act
        3. The law on which the case is based is a “law of Canada” ito BNA s 101: the federal Act must be valid, ie pass distribution-of-powers muster

3.2Remedies that can be granted by a FC

Powers of Federal Court

s 18.1(3): On JR application, FC may

  1. order a federal board, commission or other tribunal… to do any act/thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; OR
  2. declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

s 18.1(4): The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

  1. acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
  2. failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
  3. erred in law in making a decision or an order, whether or not the error appears on the face of the record;
  4. 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;
  5. acted, or failed to act, by reason of fraud or perjured evidence; or
  6. acted in any other way that was contrary to law. (some counsel make their argument under (f) and then stick to the common law language)

Fed court discretion to deny relief

  • Under s. 18.1(3) and (4) it is clear that the federal courts have the discretion to deny relief
  • Common grounds to deny relief: Statutory right of appeal, prematurity, delay, mootness, lack of practical utility, misconduct of applicant, waiver and balance of convenience, & public interest
  • Problem: it could legitimate unlawful admin action

4SCOPE OF PROVINCIAL (ie SUPERIOR COURT) REVIEW POWER

  • Prov courts which have presumed juris, unless removed by statute (cf. Federal courts have juris that is expressly conferred or implied by statute)
  • Prov courts still possess concurrent and at times exclusive (prov Acts)

4.1Judicial Review Procedure Act (Ontario)

Judicial Review Jurisdiction

s 2(1) Applications for judicial review – On an application … the court may, despite any right of appeal, grant any relief that the applicant would be entitled to in any one or more of the following:

  1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
  2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

s 1 Definitions:

“statutory power” means a power or right conferred by or under a statute,

  1. to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
  2. to exercise a statutory power of decision
  3. to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing
  4. to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

  1. the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
  2. the eligibility of any person or party to receive, or to the continuation of, a benefit or license, whether the person or party is legally entitled thereto or not, and includes the powers of an inferior court.
  • The use of “in the nature of” in the statute can mean the JRPA applies not only to old prerogative writs but also other remedial regimes that are like or in the nature of prerogative writs, ie injunctions and declarations (Re Rees)
  • Purpose of limiting application s. 2(1) to exercises of statutory powers only was to limit application of the Act to the public law sphere
  • While prerogative writs naturally are only public law remedies (Bezaire; Martineau), injunctions and declaratory relief are found in private law.
  • Via s. 2 the legislature is signalling that the Court in reviewing may only grant public law remedies rather than private law remedies.

4.2Concurrent jurisdiction / exception to rule of no prov auth over fed tribunals (habeus corpus)

May v Ferndale: the Correctional Service of Canada used a computer programme to formulate a score for inmates determining their appropriate security level. May – a federal inmate – was transferred from a minimum to medium-security institution (more restrictive of liberty). In provincial superior court, he applied to for habeas corpus to go back to which end he also applied for a certiorari for the scoring matrix. The BCCA felt prov courts could NOT exercise juris

[decided under BC Judicial Review Procedure Act but basically same as Ontario’s Act]

  • JR is available for decisions relating to prisoners wrt the liberty they have left (‘residual liberty’), ie the rule of law applies within prison walls
  • The nature of habeus corpus should be interpreted purposively, ie protection of individuals against wrongful restraints of liberty
  • Prov courts will have jurisdiction to issue certiorari in aid of habeas corpus in respect of detention and administrative segregation in federal penitentiaries in order to protect residual liberty interests.
  • Prisoner should have the choice of forums (CONCURRENT JURIS: prov court ito habeus corpus and Fed courts ito statutory JR)
  • Prov courts are suited because of their expertise with the remedy, timeliness, and local access
  • Prov court should NOT exercise juris (goes to Fed instead) =
  1. Where a statute (eg Criminal Code) confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be;
  2. Where Parliament has put in place a complete, comprehensive and expert procedure for review of an administrative decision (ie does the scheme reflect and intention to exclude any other court or tribunal from entertaining any type of proceedings)
  • There is no Act dealing with administrative detention and Parliament has not put in place a procedure for dealing with the confinement of prisoners

5INTERIM RELIEF

  • Interim relief (i.e. stay of proceedings or interlocutory injunctions) are sought for two reasons in the admin law context:
  1. to prevent an administrative process from proceeding pending disposition of an application for judicial review;
  2. to prevent actions being taken by those subject to the admin process pending the conclusion of a hearing/investigation

5.1Stays of proceedings

Manitoba (Attorney General) v. Metropolitan Stores: After a TU applied for imposition of a contract, MS (employer) wanted declaration that provisions of LR Act authorizing such applications were contrary to the Charter. In the context of the Charter challenge, MS sought a stay of further action by the Board until the court disposed of the Charter challenge.

  • Conditions for granting a stay in the administrative process (American Cyanamid):
  1. There is a serious question to be tried (i.e. not a frivolous or vexatious claim);
  2. Applicant will suffer irreparable harm unless the injunction is granted; and
  3. The harm resulting to applicant if the injunction is NOT granted > harm to the other party if the injunction IS granted – ‘balance of (in)convenience’
  • In constitutional litigation, an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in the balance of convenience & weighed together w/ the interest of private litigants

5.2Injunctions

  • An ADM can be given authority to make interim rulings pending a decision but if not, the courts can be asked to award interlocutory relief

Brotherhood of Maintenance of Way Employees: BCSC was asked to award an injunction restraining an employer from implementing a change to the work schedule pending arbitration

  • Courts retain a residual discretionary power to grant interlocutory relief where there are no adequate alternative remedies
  • Requires there to be a justiciable right but that right need not fall for determination before the same court from which the interlocutory relief is sought

** Note: When you bring a claim for judicial review, damages are available. To claim damages, a party would have to commence a separate action in provincial court


Residual discretion of the court to deny relief


  • Prerogative writs – as the name implies – are not available as of right
  • Apart from standing and jurisdiction, the courts have a residual discretion to control access to a determination on the merits of admin decision making
  • Not necessarily and all-or-nothing approach, eg quashing orders can be postponed (Cowessess Indian Band)
  • (i) exhaustion of alternative remedies; (ii) ADM must be functus officio; (iii) mootness; (iv) delay; (v) misconduct of applicant; (vi) waiver; (vii) balance of convenience

1EXHAUSTION OF ALTERNATIVE REMEDIES

  • This is an issue of the appropriateness / adequacy of alternative remedies (ie not their mere existence)

Harelkin v University of Regina: student was excluded and instead of utilising the available right of appeal to the University Senate he applied for JR

  • A right of review / appeal in an empowering statute will be adequate unless it is unequivocally clear that it would not amount to a fair hearing (clear from words of statute, unreasonable delay, refusal to perform its duty etc)
  • Factors taken into account in determining adequacy incl (i) the procedure on the appeal, (ii) the composition of the appeal body, (iii) its powers and the manner they will probably to be exercised, (iv) the burden of a previous finding, (v) expeditiousness and (vi) costs.
  • An applicant is not entitled to use the courts merely because they are more convenient remedy ito costs or expeditiousness BUT costs + expeditiousness will be sufficient if, in addition, there is no other way to protect the right

Canadian Pacific Ltd v Matsqui Indian Band: CP had levies imposed on it by a Indian tribunal est ito The Indian Act. The Act allowed the tribunal to review levies allowing the bands to tax people using the reserve. CP went to court without pursuing the appeal procedures established under the Act

  • Factors taken into account in determining adequacy incl (i) Legislative intention, (ii) the convenience of an alternative remedy, (iii) the nature of the error, (iv) the nature of the appeal body
  • Factors not a closed list & should be contrasted and weighed against one another in a contextual enquiry

2ADM MUST BE FUNCTUS OFFICIO

  • An applicant for JR must ensure that the first ADM cannot review its own decision (cf. Exhaustion dealing with a superior review of an ADM decision)
  • The decision maker must be functus officio, having discharged his duty, an ADM ceases to have any authority over that matter (Chandler v Alberta Association of Architects)

3MOOTNESS

  • The matter must have practical significance and cannot be hypothetical or abstract (Borowski v AG)

4DELAY

Friends of the Oldman River Society: Minister approved a dam building project without an EIA and the challenge only came 3 years after, when the project was 40% complete

  • Factors taken into account = (i) whether other parties who have relied on decision will suffer prejudice; (ii) when applicant became aware of decision; (iii) other action taken against decision; (iv) the gravity of the problem with the decision (eg was it a criminal offence)

Re Consolidated Maybrun Mines Ltd: mining company ordered by Minister of Environ to clean up transformers containing PCBs in their abandoned mine (posing an environ risk). They ignored the order and when charged by the Ministry sought to have the order declared invalid, ie in their criminal case

  • Involves a collateral attack: a challenge to an admin decision in proceedings that do not have as their direct target the validity of the relevant decision or action; ie challenging the validity the admin decision by way of defence to a prosecution for breach of that law
  • Overarching principle re collateral attack: what forum did the Leg intend to deal with the issue of invalidity?
  • Factors taken into account in det Leg intention, ie whether a court can rule on a collaterally attack admin decision: (i) the wording of the statute from which the power to issue the order derives; (ii) the purpose of the legislation (preventative, remedial, punative); (iii) the availability of an appeal (ie remedy within the ADM other than quashing its order); (iv) the reason for the collateral attack (their own refusal to cooperate); (v) the penalty on a conviction for failing to comply with the order

Garland v Consumer Gas Co: CGC was a gas utility that charged it customers a flat one-time fee for payments after the due date. It was allowed to implement this by a decision of the Ontario Energy Board. For a significant number of customers – who paid their fees relatively soon after the due date – the fee equated to CGC charging them a very high interest rate. A few consumers alleged this was contra the Criminal Code making it an offence ot charge interest over 60%. It was argued this was a collateral attack on the OEB’s decision to allow the late-charge in the first place

  • The doctrine of collateral attack can prevent a party from undermining previous orders issued by a court or administrative tribunal , often invoked where the party is attempting to challenge the validity of a binding order in the wrong forum
  • To amont to a collateral attack the party must be bound by an order and then seek to avoid it by challenging its validity (rule of law and repute of admin of justice rationale), ie there must be a threat to the integrity of the system
  • This is not a collateral attack on the OEB’s decision as this is essentially a claim to recover money that was illegally collected as a result of Board order.
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