ADMINISTRATIVE

LAW

1) ADMIN LAW SUBJECT MATTER

What is Administrative Law:

Administrative is the body of law that governs how people exercising power pursuant to a delegation of power in a statute
(or occasionally the royal prerogative) go about their business.
 In most cases, the people who have this form of power (again, typically given to them by a statute) are members of the
executive branch of government, although often at some arm’s length from it. In our system, based on the rule of law,
we want to make sure that people with this power exercise it properly. Almost all of administrative law is about
deciding what we mean by “properly”

Role of the Courts: to ensure the decision-makers do not step outside the boundaries of what they are legally empowered to do
(via statute). For example, the courts review delegated decision-making.

 Brown 2000: The overreaching theme of JR at time intertwined Constitutional Law and Admin Law:
Example: BC Electric Railway v CNR 1932: successful challenge prevent Board from exercising jurisdiction
over foreign-owned BC rail operator (rather, jurisdiction was limited to railways provided for by FED leg).

Subject Matter of Law: law governing the implementation of public programs, particularly at the point of delivery, where
they are likely to have their most immediate impact on the lives and rights of individuals.

Reasons for Expanding Administrative Law:

(1) Desire to depoliticize certain decisions
(2) Need for greater specialization in decision making
(3) Reluctance to have courts hear matter not suitable to JR because floodgate

Administrative Law Concerns:

 The legitimacy of the decision given the significant impact a decision could have on an individual and the fact
that boards and tribunals were not publically accountable to same way the government is (ie: passing leg via
HoC)

Theories of Admin Law: (Conflict/Tension)

Legal Formalism: (A.V Dicey and followers)

 Law was composed of ‘scientific legal rules’ rules are discerned by close examination/ study of previously
decided cases.
 Legal docs spoke for themselves by looking at ‘plain meaning’ of word.
 Judges could ignore the policy implications of the impartial ruling.
 Dicey emphasized ‘individualrights’and role ofcourt as upholder of these rights. Did not like expansion of ADMs.

 Rise of Welfare State= Resistant- Role of lawyer to rise up and protect the rule of law against the executive.
o Lord Hewart: “Depotism” meant placing government departments ‘above sovereignty of Parliament and beyond
the jurisdiction of the Courts’, and he was dismayed at the delegation by Parliament of legislative powers to
government department

 Formalism begun to affect constitutional interpretations such that Administrative agencies were increasingly
challenged as being outside the jurisdiction of the fed or prov creator. Ultra vires. Critics thought ADM tribunals
reduced the primacy of the Courts.

Progressives: (Pound)
 Common law reasoning should be instrumental and seek social welfare
 Functionalists: (Direct Opposition to Legal Formalism)
 Where Dicey argues ‘liberty’ imposed a negative obligation on government (not to interfere with individuals and their
actions, they argue liberty imposed + obligation on government: to provide individuals with basic qualities of human
life.
 View delegated legislation as essential to achievement of goals and social welfarism.
 Why? John Willis: if state was to look after subjects, then sweeping delegation of Parliament power to Admin
was necessary for welfare state to operationalize itself. Based on efficiency.
 ROLE OF COURTS: JR would always be sporadic and in any event, the judges ignorance of policy should disqualify
them from a major role.

Subject Matter of Public Admin:

Principle Institutional Roles:
BODY ROLE
LEGISLATURE Principle public forum where decision are explained/ debated. Nearly all
public programs originate with statute enacted by either PROV or FED
CABINET Minister has responsibility for department (fed) or ministry (prov) that is
established by statute. Minister is accountable for exercise of powers
assigned to her or those under his discretion.
MUNICIPALITIES Exercise powers which are delegated by PROV, subject to provincial
guidance/control. But as elected members they debate and pass bylaws
and resolution within their granted powers.
CROWN CORPS Enjoy substantial independence in day-to-day operations. Purpose of
independence: to enable them to make commercial decisions without
government interference. Gov still have considerable influence: eg. CBC.
PRIVATE BODS/ PUB FUNC Some derive legal authority from contract, and may resemble admin
agencies that otherwise discharge governmental functions. EX: Sporting
Bodies, Child Welfare
IND ADMIN AGENCIES: Most distinctive institutions of Admin State (board, tribunals,
commissions). They have been created in every jurisdiction without an
overall organizations plan.

Feature of Independent Similarities:

Admin Agencies (most, if not  Measure of independence from gov. dep
all):  Those likely affected by decision are given opp to participate in
decision making process by providing evidence
 Operate at ‘sharp-end’ of admin process—aka they apply to the
individuals. EX: denial of license, refugee determinations
 They are specialized
Differences:
 Different sized policy-making mandated
 Some resemble courts in their structure
 Some agencies have giant caseloads

Where do Courts get their Power to review?

3 Sources of Review Power:
(1) Original Jurisdiction: Ordinary courts have jurisdiction over decision of admin- decision-makers when they are
challenged on grounds that state has infringed an individuals private legal right (tort/contract)
(2) Statutory Right of Appeal: Right must be provided for in statute, there is no automatic right to appeal the substance of
admin decisions
(3) Court’s inherent Judicial Review jurisdiction: Superior Courts in each prov may review decisions made by institutions
and officials with responsibility of administering public programs, via courts inherent JR jurisdiction (s.96)

Effect of Privative Clauses: The legislature often inserts privative clauses into statutes in an attempt to stop courts from
reviewing the decisions of admin decision-makers; courts ignore the clause or interpret them in a very restrictive way.
McRuer Commission 1968:
 WATERSHED MOMENT – previously courts relied on the ancient writs
 Helped to bring about a basic codification process of procedures for admin tribunals
 Set up response to criticism of a government bill conferring a broad-ranging investigatory power to a Commission.

CODIFICATION PROCESS: (procedures to extend availability of JR):

Statutory Powers Procedure Act, Ontario 1971 (SPPA)
1971 Judicial Review Procedure Act: established rules for courts reviewing errors of both law/fact of ADMs.

Federal Court Act 1970: allowed for almost complete transfer of ‘remedial jurisdiction over federal ADMs from provincial
superior courts to newly created Federal Court of Canada.

Section 96 CA 1867: power to enact federal courts

 Statute provides a foundation for the court’stonotaccept privative clauses as ‘ousting their authority’.

o Admin Agencies/Tribunals only derive power from legislation, thus powers are limited. PAR SUP Parliament
can enact anything. However, arguments exist that there is an implied constitutional guarantee via 96-100 of JR
of admin action
o Provinces do not have the jurisdiction to enact s.96 courts, however they enact administrative tribunals (de facto
s.96 courts) by inserting privative clauses for immunity.  unconstitutional.

 Superior Court have developed a 3 part test to determine whether an administrative tribunal is actually acting like
a s.96 court (thus unconstitutional) as its without jurisdiction to do so:

(1) Is admin decision similar to one that at time of Confed, would have been exclusively within power of a
superior court?
(2) Is impugned power a ‘judicial’ power as opposed to an admin/ legislative power? (Judicial power being one
where private disputes between parties, and adjudicated through a recognized body of law)
(3) Has decision making power in its contemporary institutional setting sufficiently changed its character such that
it did not conform to the jurisdiction of the court?

Crevier v AG(QB) 1981: [leading admin tribunal masquerading as s.96 court]

Facts:
 Quebec Professional Tribunal hears appeals from discipline committees of most statutory professional bodies.
 Tribunal was composed of provincially appointed judges. Act included a privative clause stating tribunals
decisions were final
Issue: Was QPT acting like s.96 Court?
Held: Per Laskins CJ:
 SC had jurisdiction. QC tribunal could include a privative clause if it allowed SC jurisdiction to review
questions of jurisdiction even if there was limited JR of all other kinds of decisions from tribunal. Wording
of clause ousted SC thus unconstitutional.
Analysis:
Ratio: There is a constitutionally recognized right to JR, s.96 courts are entitled to check jurisdiction of admin
board.
Grounds of Judicial Review (JR):

There are 4 grounds of review that may overlap:

(1) Procedural fairness: ADMs generally have a legal duty to act in a way that is procedurally fair. This may require
prior notice and a reasonable opportunity to respond to those likely affected.
(2) Illegality: Court must determine the scope of the legal powers and duties of the agency by interpreting the relevant
legislation. Admin action has not legal validity if it is not authorized
(3) Unreasonableness: Admin also have a legal duty not to exercise their powers unreasonably. Lack of reasonableness is a
grounds of review. Similarly, admin action might infringe on Charter right and must be justified under s.1
(4) Unconstitutionality: Since Charter, common that lawyers frame court challenges to admin action in terms of both
common law and the constitution. There is an overlap in admin and constitutional law.

Intro to Procedural Fairness Review:

Procedural Fairness:

Procedural fairness or natural justice as required by Section 7 Charter, requires court in reviewing actions of tribunal to
determine whether the procedure followed by the tribunal in coming to the decision was proper.

Step 1: “Threshold Question”:Is the kinds of decision that should attract some kind of procedural right?

WHAT Court is asking whether it should review the decision- maker’s procedures or conclude that whatever decision
maker decides to do by way of procedure is sufficient?
 Where an individuals right/ interest is affected by the decision= entitlement to procedural fairness
 Legitimate expectation? – should individual be entitled to certain procedural rights if some representation has been
made that such rights are forthcoming?
 Basic principle: fair process may be required even if not provided for in statute.

Cooper (UK) – right to notice before having House destroyed.

Nicholson v Haldimand PC 1979 SCR: Laskins CJ held that a police constable employed during a probationary period
could not be dismissed arbitrarily without being given reasons.
See also, Knight – “at-will” employee had a duty of fairness
 Step 2: Where threshold for some form of procedural fairness has been met, court determines what those procedures will be:

Baker v Canada (Minister of Cit/ Imm) 1999 SCR [leading case]

Facts:
 Appellant near deportation, request minister of immigration to use discretionary powers on H/C grounds to
remain in Canada with 4 children/illness while applying for permanent residency. App denied. SC accepted
there were sufficient reasons for decision:
Significance: Identified 5 Factors to determine a general level of PF required:
 The nature of decision and process followed in making it
 I.e. more resembles judicial fn, more process required
 The Nature of statutory scheme
 I.e. if no way to appeal, more process is required
 Importance of decision to individual affected
 Legitimate expectations of parties
 Procedures chosen by tribunal.
 Should respect choices made by tribunal

Context: In having decided a general level of PF exists, court will decide from a range of possibilities what specified
procedures are required: notice, disclosure, opportunity to participate, hearing, oral/written reasons for decision,
opportunity to give evidence.

Ratio:
 Admin decision-making is now seen as falling somewhere on a spectrum between quasi-judicial and
legislative decision making, with procedural entitlement varying according to the place on that spectrum.
“Once an individuals, rights, privileges or interest are at stake- the duty of fairness applies and the
question then becomes one of degree.

Step 3: Ask, whether board is so dependent on or connected to the government, that, if appointed, they cannot be perceived as
being sufficiently able to make an independent decision. Here institutional independence is related to the concept of bias

Intro to Substantive Review:

Substantive review looks at the substance of the decision: the decision itself and not just the procedure that were followed.

Step 1: Court asks themselves what the standard of review is appropriate?

Key Case  Dunsmuir v NB 2008 SC:

2 Categories of SUBSTANTIVE REVIEW:

(1) Standard of Correctness: (was it a correct decision, the same decision the court would have reached?)
(2) Standard of Reasonableness: a more respectful/forgiving standard (did the tribunal’s decision fall within a range of
reasonable alternatives?)

Context: If deferential= reasonableness. If no deference shown= correctness standard

o Intra-vires: evolved into the present standard of reasonableness: that is, a reviewing court will only overturn a tribunal’s
decision if it is unreasonable
o Ultra-vires: evolved into the present ‘correctness’ standard: that is, the court will only overturn tribunals decision if it is
not what court itself could have decided.

Step 2: having determined the standard, the court then applies it to the decision in question.

Context: Having determined standard, it may determine that in review the decision, the standard has been met = The decision
is the same as what would be reached by court, thus, decision will not be overturned.
 Del Vecchio v Canada (Public Safety) 2011 FC:
FACT: Decision by Minister of Public Safety not to transfer prisoner from US to Canada.
HELD: SC found a high degree of discretion was provided via statute thus, Minister was owed deference (applying a
reasonableness standard). But by arbitrarily allowing A’s accomplice to transfer, the minister was outside his
jurisdiction. (thus same decision would not have been reached by courts)

The RULE OF LAW (RoL) and the Administrative State:

The preamble to the constitution recognized the principle that government should be subject to law Reference Re Secession QB
1998 SCC.

 Van Harten: argues that an important function of ADMIN LAW, is the maintenance of the RoL (courts being at center)

 This is demonstrated by the fact that contemporary admin law reflect Dicey’s RoL:
1. no one should be made to suffer except for a distinct breach of law
2. government and citizens alike are subject to the general law of the land
3. law of government should be administered in the ordinary court
 Dicey asserts: There is no distinct body of public law applying to relations between individuals and state that is
administered outside of the ‘ordinary courts’.
 This ultimately provides justification for the exercise of the s.96 Courts in JR, even when legislature have used privative
clause.

Functionalist Criticisms:
o Argue that Dicey’s understanding of the role of s.96 courts could only frustrate the implementation of legislative
arrangements for regulation and redistribution in the public interest.
o Argue: Dicey’s version of the ‘rule of law’ put’s public administration into a straight jacket.
o Positivi st legal tradition has failed to appreciate that law is intertwined with policy!
o Functionalist approach stresses the facilitative and legitimizing roles of law- as regulator and provider of benefits, state
should be regarded as a source of good law.

David Dyzenhaus 2002:

 Functional approach attaches insufficient weight to considerations of democratic accountability and fundamental
rights as to the positive contribution courts can make to realizing these goals
 HOW Rework Functionalist Approach to RoL in order to provide for law of JR in advancing these values in
contemporary admin state:
(1) With the apparent dissolution of public confidence, it is appropriate for admin law, via Judicial Review to ensure
procedural openness and enhance accountability in public administration
(2) Scrutinize more closely those decisions that are contrary to the intended beneficiaries of the legislation.
(3) Agree with functionalist, that the most reliable guide to the ‘intent of the legislature’ is an interpretation that best
furthers the purpose of the statute (a matter the agency will often be better placed to determine then a reviewing
court)
 My argument: mix of both is best!
2. PROCEDURAL FAIRNESS MATERIALS

1) Different Sources of Procedural Fairness:

We begin with procedural obligations that administrative decision-makers must observe in exercising their powers. The
starting point is understanding where these come from:

ENABLING STATUTE:
 To determine whether it is required by law to afford procedures and if so, which ones, Courts look at enabling statutes:

Singh v Canada (MEI):

Significance: IMM Act provided a complete procedural code governing refugee status determinations, thus displaced CL
duty of fairness.

SUBORDINATE LEGISLATION (Admin policy/practice)

 Leg may choose to statutorily delegate to executive, minister or board itself, the power to enact regulations/ rule of
procedural requirements (because of expertise)
 Issue: delegated rule makers are not respecting the wishes and expectations of the delegator’. To minimize this risk,
delegated legislation is subjected to various mechanisms of accountability and scrutiny: such as public consultation or
judicial review where statutorily prescribed mandatory steps for the effective enactment are not followed.

POLICIES/ GUIDELINES:
 Public authorities will issue guidelines and policies. It is a form of soft law that need not be provided for in the authorities
enabling statute.
 They play a dominant role in public authorities decision making
 Example: Baker ‘H&C Guidelines relied on

GENERAL PROCEDURAL STATUTES

 General procedural statutes which constitute an additional source of procedural requirement:

Ontario Statutory Powers Procedures Act (SPPA) 1990:

 Feature: most detailed stat codification of procedural safeguards, 1994 amendments made that expressly
empowered tribunals to make general rules governing their practice/procedure. (Product of CJ McRuers
Commission)
 Significant: sets out procedural safeguards that broaden powers of boards to structure on proceedings efficiently

Alberta Admin Procedures and Jurisdiction Act 2000:

 Much less detailed, not conferring broad power.

BC Administrative Tribunals Act 2004:

 Similar to ON
 Empowers tribunals to make own rules governing their practice and procedure tailored to specific circs.
 COMMON LAW PROCEDURAL FAIRNESS

 If procedure not required by public authorities enabling statute, valid leg, or general procedural statute, the authority may
still be obliged to provide CL procedural fairness

 Require: (1) Entitled to be heard by authority in (2) impartial/indep hearing- coming from natural justice.

Nicholson v Haldimand-Norfolk RPC 1979 SCR [leading case]

Facts:
 A at 15 months was discharged by board within probation period = opportunity for submission, pursuant to
Police Act, requiring 18 months for rights
Issue: Was there no protection between natural justice and arbitrary removal for A who was less then 18 months

Held: Cannot be denied protection.

RATIO: In sphere of Quasi-judicial, the rules of natural justice run and admin decision making = general duty of
fairness.

CHARTER:

 Section 7 (life, lib, security) established a higher threshold than simply demonstrating that a right, privilege or interest is
affected.
 When s.7 right is breached, s.1 justification is often available.

RE BC Motor Vehicle Act:

Significance: SCC held principles of fundamental justice includes procedural fairness protection
2) PROCEDURAL OBLIGATION TRIGGERS
(Knight “Three-Prong” and the Concept of “Legitimate Expectation”)

Now that you understand that procedural obligations come from a number of different sources, you need to understand which of
these procedural rules applies where. We call this the “trigger” (or threshold) – where is a given procedural obligation triggered?

Today, there are two triggers for common law procedural fairness and other triggers available:
(1) Knight three prong trigger (CL)
(2) Legitimate Expectation (CL)
(3) Emergencies and Legislative Decisions
(4) Charter & Bill of rights

Where the requirements of the triggers are met, then procedural fairness is owed by the administrative decision-makers.
(Pay ATTENTION TO MODERN RULES)

MODERN COMMON LAW DOCTRINE:

DEVELOPMENT:
o Cooper: court willing to impose hearing requirements based on how they categorized the nature of their decisions making.

o Ridge v Baldwin 1946 AC: Judicial character of the decision-maker’s power could be inferred from the nature and power
and, in particular, could be implied from the mere fact that rights were being affected

o Nicholson v Haldimand- Norfolk RC 1979 SCR: Where quasi-judicial decision—rules of natural justice run.
Administrative and executive decisions require a general duty of fairness.

CURRENT:
Following Nicholson Canadian procedural fairness gradually expanded to areas of administrative decision making that had
previously escaped judicial scrutiny for compliance with the rules of natural justice:

Knight v Indian Head School Division No.19 1990 SCR [Key Case]
Facts:
 Board of Education dismissed R (director of education- appointed at pleasure) after he refused to renew
contract of employment for shorter terms than original term. A alleged wrong dismissal, and entitlement to
procedural fairness before dismissal.
Issue: Could procedural fairness be required to an office-holder appointed at pleasure?

Held:
 SC held procedural fairness was due to an individual appointed at pleasure, however, the requirements of
procedural fairness had been satisfied
Ratio: Rejected the rigid categories that had characterized pre-Nicholson/ Baldwin case law:
(1) Divided line of New Threshold of the duty of fairness, based on distinction btw decisions of legislature and
general nature and acts of an admin and specific nature
(2) Embraced the conception of procedural fairness as a free-standing common law right
 Consequences: AVOIDS need to find in the decision-makers enabling statute, any provision that
expressly/impliedly conferred on office-holder a right to be heard.

(3) May be a general right to PF, autonomous of the operation of any statute, depending on the Consideration of
3 factors, which are determinative of such right (If Considerations lead to conclusion that A was entitled to PF—
Education Act and terms of the contract of employment, must be considered to determine whether this
entitlement is either limited or excluded entirely

(4) Content of the duty is informed by the context (in particular decision is made and various according to a # of
factors) (Syndicates)
1. FIRST COMMON LAW TRIGGER

Three-Prong Trigger [From Knight] 

Common Law Procedural Fairness

STEP 1: The existence of a general duty depends on: (laid by Cardinal v D or Kent)
(1) Nature of the decision to be made by the admin body
(2) The relationship existing between body and individual
(3) The effect of that decision on the individuals rights

(1) Nature of the Decision to be made by the admin body:

No longer need to distinguish between Judicial and quasi/admin decisions. Distinguish between decisions of
leg/general nature vs. acts of a more admin and specific nature. The former not entailing a duty of PF (not all admin
bodies are under duty).
o Decisions of a prelim nature will not in general trigger the duty to act fairly. Decisions of a more final nature will trigger a
duty

NOTE: In relation to this case, since the decision of the board was final, as director was terminated, the decision to
dismiss could entail the existence of a duty

(2) The Relationship between the Employer and Employee (Baldwins 3 possible employment relationships):

(a) master vs. servant (no duty to act fairly when deciding to terminate)
(b) office held at pleasure (some duty)
(c) office from which one cannot be removed except for cause (duty)

NOTE: In this case, the office was held was not a pure “master-servant” because of its public nature. The office was
more of statutory nature since duties are listed in ss107, but there may be feature that demonstrate that his function is not
‘purely’ statutory. Therefore R falls into ‘office held at pleasure’.

NOTE: SCC concluded that it does not necessarily mean that Board was not under a duty to act fairly, because Admin
Law has evolved so as to make procedural fairness essential requirement of an admin decision to termi nate either (b)/(c).
Public policy: b/c public has interest in proper use of delegated power- and b/c board making decisions derive powers
from statutory delegation.

(3) Impact of the Decision on the Employees

There is a right to procedural fairness only if the decision is a significant on and has an important impact on the
individual. Various courts have recognized loss of employment= sign decision imposing duty on admin body

NOTE: In this case, Court concludes that the impact of the decision made by the Board is compatible with the imposition
of a duty to act fairly.

STEP 2: Having concluded there is a general right to procedural fairness:

(a) Statutory framework must be examined in order to see if it modifies this right
(b) Contract of employment must be examined

(a) Statutory Framework:

Statutory framework must be quite clear for PF= restrictive interpretation.

NOTE: In this case, Court find Education Act does not explicit excuse the Board from acting fairly when terminating the
employment contract of one of its administrative personnel. But the s.112 demands by necessary implication that reference
be made to the contract of employment in order to determine whether the rules of natural justice have be abrogated

(b) Contract of Employment

In interpretation the contract, must be explicit or clearly implicit provision to the contrary to override this presumption
WHAT IS THE DUTY TO ACT FAIRLY (Knight):

 The content of the duty to act fairly will be decided on the specific context of each case (Syndicat des employes de production
du Quebec v Canada).

NOTE: This flexibility however, means the difficulty of differing notions of fairness= In Knight, because he was an office
holder for pleasure, the basic requirements of the duty to act are only to give reasons for the dismissal and a hearing. Thus, as
the Board provided notice of the Boards dissatisfaction with the R’s employment and afforded him opportunity to be heard,
this would be sufficient to meet the duty!

FAIRNESS = minimum duty= Courts ask whether Procedural protection in circumstances = Adequate, not ideal.

RESULT (Knight):

HELD: CA concluded that the procedure following by the Board was fair, as R was made fully aware of the grievances of the
Board and had ample opportunity to present his side of the story.

De Smith 1980: “aim is not to create ‘procedural perfection’ but to achieve a certain balance between the need for fairness,
efficiency and predictability of outcome.

Common Law Threshold (HISTORY):

Following Nicholson, it was unclear whether there was still a threshold (between natural justice/ procedural fairness), and if so,
how was it defined? Nicholson held that in some circumstances, admin decision-makers owed affected parties a duty of PF,
thus the formalist approach lost all importance:

Cardinal v Director of Kent 1985 SCC: Per Le Dain J- new threshold: duty of fairness lies in every public body whenever
decisions affect rights, privileges and interest of individual.

Re Webb and Ontario Housing Corp 1978 ONCA: [intersection b/w PF claims and SPPA and sliding scale in
procedural claims depending on nature of the interest at stake]:
FACT:
 Ontario Housing Corp (OHC) owned buildings, MPM managed building for low incomes. W (+children) tenants in 1970.
1972 MPM recommend termination. OHC approves and termination brought under Landlord Tenant Act 1970. W application for
review of OHC decision and application under LTA was dismissed. Appeal
ISSUE:
 Is this a case that warrants application of fairness?
HELD:
 W’s benefit from property and OHC’s depriving her of this benefit, procedural fairness was required. It is a right and not
a privilege. However she was well aware of complaints/ opportunity to answer. So long as person adversely affect is advised of
case and permitted to answer, that is sufficient.

Hutfield v Board of Sk General Hospital 1986 ABQB:

FACT: Doctor’s application to be appointed to medical staff pursuant to s.11(d) was refused. Board rejected him and
refused to give reasons.
HELD: No duty to grant hospital privileges to Dr even if qualified. But there is no doubt his professional interest would be
affected by adverse decision – poor reputation, substantial hindrance on interests, etc. Therefore procedures necessary. They
were required to give him reasons.

Distinction b/w benefit applicants and benefit holders do not delineate a threshold below which procedural fairness does not
apply. However, does influence degree of fairness owed.

(CURRENT- VIEW BELOW)

Leading Case on Scope and Content of Common Law Duty of Fairness:

Baker v Canada (Minister of Cit/ Imm) 1999 SCR:

Facts:
 A near deportation, request minister of immigration to use discretionary powers on H/Compassionate grounds
to remain in Canada with 4 children/illness while applying for permanent residency.
 App denied relying on report of an immigration officer who wrote in inflammatory report indicating she was a
strain on social welfare, mental health etc.
 SC accepted they were sufficient reasons for decision.
 She argues she should have been granted an oral interview, children should have been given notice and allowed
to make submission, permission to attend and argue officer’s note gave rise to reasonable bias
Held:
 SCC found Baker entitled to procedural fairness protection, but content of duty was minimal in the
circumstances: oral hearing not required, rather written submission sufficient.

SIGNIFICANCE: Per L’Heureux Dube

 Reiterated the purpose of DoF (ensuring decisions are made using fair/open procedure and ID’d 5 Factors
relevant to determining a general level of PF: TEST FOR GENERAL LEVEL OF PF NEEDED:

(1) Nature of decision and process followed in making it:

More process provided for – i.e. Judicial v. Quasi-judicial, look at the function of the tribunal, nature
of decision making body, determination that must be made to reach a decision, the more likely it is that
procedural protections closer to the trial model will be required by DoF.
(2) Nature of stat scheme:
 Pay close attending to legislation that authorizes a decision to be made. Greater fairness protection will
usually be required if ie final decision w/o appeal.
(3) Importance of decision to individual affected
 Content of duty increases in proportion to the importance of the particular decision to the person that is
affected (ie: when employments at stake)
(4) Legitimate expectations of parties
 Where A led to understand he will be provided with particular procedural protection (oral hearing)
before decision is made, they may have a legit expectation, thus it has to happen. Can stem from
representation, undertaking, and past practices.
(5) Procedures chosen by tribunal.
 Procedural choices made by decision maker must be taken into account b/c decision-maker will have
superior knowledge of their own needs/needs of the community. I.e. need for efficiency, cost-saving, etc.

RATIO:
 Admin decision making is now seen as falling somewhere on a spectrum between quasi-judicial and
legislative decision making: with procedural entitlements varying according to placement on that spectrum.
‘Once right, priv, interests are at stake, duty of fairness applies and question then becomes one of degree’.

NOTE: Having decided the general level of procedural fairness, courts will decide from a range of possibilities:
 Notice
 Disclosure R v. Stinchcolmbe
 Oral hearing Singh v. Minister of Employment i.e. when credibility is at issue
 Right to counsel – generally only in criminal cases
 Right to call evidence/cross-examine witnesses
 Timeliness/delay Blencoe v. B.C. – delay may result in deprivation
 Oral/written reasons
2. SECOND CL TRIGGER: Legitimate Expectation:

The 2nd CL trigger for Procedural Fairness.

WHAT

HOW Procedures will be required by reason of expectations generated in an affected person and not be entirely contingent on a
detached analysis of the statutory power in question.

BIRTH ‘Legit Expectation’ arose because of difficulty of inferring from legislative silence that there was an implicit delegation
to court to decide between when decision maker owes obligations and where no such entitlement arises.

Ridge v Baldwin UK [development of term]

Significance:
Per Denning: ‘all depends on whether he has some right/interest or some legitimate expectation of which it would not be
fair to deprive him without hearing what he has to say.

NOTE: Term also used to describe nature of substantive interest for which procedural protections were being sought Hutfield:

R v. Liverpool Corp 1972 HL: Municipal officials had told association that # of taxi licenses would not be increase without a
hearing  entitlement to such opportunities on the particular circumstances (this laid foundation for modern doctrine).

Modern Legitimate Expectation:

In Canada = an expectation of a hearing arising out of an express representation, or common practice. The doctrine may
also represent a significant evolution in the law relation to estoppel and public officials.

It has been acknowledged by the SCC in 5 cases, however all cases have failed to properly invoke doctrine. This has led to the
doubt of LE actual reach in the CJS:

Old St. Boniface Res Ass Inc v. Winnepeg 1990 SCR:

ISSUE: Was argument that there was an legitimate expectation (based on residents association) that there would be no more
development of the kind at issue?
HELD: Expectations could not prevail against applicant developer, court also found that any such claim could not be made in
the face of all the other procedural protections provided for in relevant legislation.

NOTE: Per Sopinka- describes doctrine as one by virtue of which procedural claims can be made in circumstances where
otherwise no procedural obligations would exist.

Reference re Canada Assistance Plan 1991 SCR:

FACT: Canada Assistance Plan (fed stat) authorized gov to enter into agreements with province for sharing costs of
provincial assistances and welfare programs. Section 8 of Plan provided that these agreements would continue in force for as
long as the relevant provincial law was in operation, subject to termination by consent or unilaterally by 1 years notice. Fed as
part of deficit reduction policy introduced bill that limited increase in its financial contribution to BC, AB and ON. No notice
given
ISSUE: Can Feds be precluded from introduction Bill by virtue of legitimate expectation that amendments would only be
made by agreements of consent?

HELD: AG argued it was illegal b/c violated legit expectation. Per Sopinka: Courts will not intervene during legislative
process, as Parliament would be paralyzed if doctrine of legitimate expectation could be applied to prevent government from
introducing legislation in Parliament.

NOTE: Sopinka rejects any notion of legitimate expectation being anything other then a source of procedural claim, thus
never generating a claim to substantive outcome (as AG claimed that if doctrine required consent and not merely consultation)

NOTE: Baker upheld that substantive expectations can generate an entitlement not to substantive outcomes but to
procedural protections.

COMPARE: GCHQ 1985 AC HL: where a practice of consultation between gov and union for alterations of employment
conditions. Minister of civil service made order forbidding GCHQ employees from belonging to national trade unions after
union striked. Union sough declaration that order was void because it was made without consultation: HL held order entitled
 to JR because union has legitimate expectation that they would be consulted before decisions made. However, claim failed
because national security outweighed expectation (thus beyond courts).

Mount Sinai Hospital v Quebec (Minister of Health) 2001 SCR [not available for substantive decision]:
FACT: Minister agrees with Hospital to regularize license after relocation. New minister refuses. Sought mandamus to
compel based on legitimate expectation.

HELD: Per Bastarach J: no issue of public estoppel/ legitimate expectation. Because earlier minister had already made
decision, current minister had no basis for overturning.

Per Binnie J: Note: English cases on doctrine would fit comfortably within our principle of procedural fairness. At the high end,
they represent a level of judicial intervention in government policy that Canadian Courts consider inappropriate. At the low end,
there is concern that by treating PF as a subset of LE, it would unnecessarily complicate and inhibit rather than encourage the
development of the highly flexible rules of PF. Legitimate expectations therefore involve procedural relief in circumstances
where there would be no such opportunity. Here, no need to expand LE to grant relief when PF can do.

FUTURE OF DOCTRINE: Very uncertain. If it is to play a significant role, it will most obviously be as a surrogate for the
failure of the CL principles to provide for the imposition of procedural entitlement in the context of rulemaking/ bro adly based
policy considerations.

Apotex v. Canada – Drug mfg challenges regulation restricting its patents. Claims it has a LE of consultation before regulation
is passed. HELD: (In principle) Although legislative nature, St Boniface and LE allows Court to supply participatory rights when
none otherwise would be provided. Here, no LE of consultation b/c Cabinet had already approved the regs w/o knowledge of
duty of consultation. Not for courts to trample on Cabinet’s jurisdiction.

Canada v. Mavi – Sponsors of immigrants obliged to pay back benefits the government pursuant to the IRPA. They argued PF.
Gov argues right to automatically collect. HELD: Right to PF: 1) notice; 2) opportunity to respond in writing; 3) consider
relevant circumstances; 4) notify gov’s decision. Additionally, right to LE if representations are procedural in nature and do
not conflict with statute. Analogy to private law of contract. Here, PF applied b/c decision was final and specific and had
significant impact on sponsors. LE applied b/c representations that Gov can defer, not forgive debt.

Agraira v. Canada – Immigrant found to be inadmissible under IRPA b/c of participation in terrorist group. IRPA had an
exception if found not detrimental to the “national interest,” and guidelines were promulgated to consider this factor. App
argued, Gov deemed App inadmissible w/o considering such factors. HELD: LE applies and requires procedural framework for
handling relief applications. Here, however no evidence gov didn’t adhere/consider to guidelines. Not for courts to question
gov’s interpretation of guidelines.
3. THIRD TRIGGER: Emergencies & Legislative Decisions:

WHAT CL procedural fairness rules may fail to be triggered to be triggered where there are emergencies and where decisions
are said to be of a ‘legislative nature’.

Decisions of a Legislative and General Nature (Limitation on PF) [exception to]

The term “Legislative Nature” is ambiguous:

o Clearest sense= no procedural fairness needed where admin decision-maker is introducing a regulation (ie: delegated
legislation)
o Yet means more = a decision that is sufficiently general and not particular to or focused on a narrow subset of persons
i.e. Wells v. Newfoundland – Utilities board adopted regulations restructuring board, leading to Wells being fired. Court held no
PF was due to Wells. This is because Board’s decision was bona fide deliberated and enacted by the elected legislature. It was a
“legislative and general” decision and not a “specific and administrative” decision. Not a personal matter, but a policy choice.

The term “General Nature”= no PF where decision is legislative in nature, this is however subject to exceptions

Re Canada Assistance Plan (BC) 1991: [public bodies exercising legislative functions may not be amendable
to judicial supervision, where decision is of a general nature]
RATIO: Rule governing procedural fairness will not apply to legislative decision and functions.
NOTE: Court has never explained what is meant by ‘legislative functions, but it is clear that primary legislation (whether
passed by Par/Leg) is not subject to CL duty of fairness.
NOTE: This reconfirmed what was stated in Knight. Knight also included that decisions of a ‘general nature’ could fail to
attract a duty.

ISSUE What is ‘general’ mean? It has thus far been left undefined

Cabinet and Ministerial Decisions:

EXEMPTION?  Not subject to the legislative exemption per se, but easy to characterize Cabinet and Minister decision
as legislative in nature, thus exempt from duty.

Canada (AG) v. Inuit Tapirisat of Canada 1980 SCR: key case

FACT: Fed Cabinet rejected an appeal from the Intuits regarding an unfavorable decision of the CRTC. Cabinet heard
from utility (Bell) and the CRTC and took advice from ministerial officials, but Inuit were left out of proceedings.
Cabinet dismissed the Intuits’ appeal.

ISSUE: Was Cabinet power legislative in nature, in part because Section 61(1) National Transport Act authorized
Cabinet to overturn decision of CRTC on its own motion?

HELD: Mere fact that stat power is vested in Cabinet does not mean its beyond JR. However, this was ‘legislative
action in its purest form’. Parliament pursuant to s.64(1) has not been burdened with guidelines in exercising
review function, nor were any procedural standards imposed. Court did not want to burden Parliament with hearing
requirements. Concerned about undermining Cabinet’s public policy-making powers.

SIGN: Always construe stat scheme as whole in order to see what degree, if any, the legislator intended the principles to
apply. In this case s.64 supervisory power was vested in Cabinet to respond to political/ ec/social concerns at the moment.
Therefore under s.64, Cabinet was exercising delegated power, unless otherwise directed in enabling statute.

Bylaws and Rulemaking Decisions:

EXEMPTION? Subordinate legislation is made pursuant to exec authority and thus accountability may be minimal,
however, in general courts have not imposed procedural requirements on the subordinate law-making function.
The requirements that do exist are however established by legislation.

There are however exceptions:

Homex Realty and Dvlp Co.ltd v Wyoming (Village) 1980 SCR: [ill motive/ property rights]
FACT: Ill-motivated by-law affecting developer and puts undue restrictions on property.
HELD: Passage of municipal bylaw was subject to duty of fairness, because it was clear that village’s motivation for
passing bylaw was an ongoing dispute it had with a particular developer. The effect was on one particular person.
SIGN: Prior to limiting property right, A must be given opportunity to be heard where body seeks to limit rights.
Courts will imply right to be heard unless express declaration to contrary exists.
 RATIO: “Spectrum” purely ministerial decision, on broad grounds of pp will typically afford little/no
procedural protection.If on the other hand, targeted to one individual, then procedural protections OK.
Here, some procedural safeguards were required, at minimum: notice.
safeguards, particularly where property rights are targeted.

BROAD AFFECT: Where the impact of a decision being made is scattered, affecting a broad spectrum of the public =
claims to PF are hard to justify. In a generally undifferentiated manner, claims to participatory rights (PF) are hard to
justify (**unless legislation contains indication of public participation or obligation of consultation):

Vanderkloet v Leeds Grenvill (Board of Edu) 1985 ONCA:

FACT: Min of Ed issued guidelines for closing schools to require public participation/consultation.
A challenged boards decision to relocate students b/c did not follow ministerial guidelines or board’s own policies.
HELD: Where decision scattered/ affecting broad spectrum of public, claims to participatory rights are hard to justify
(even where guidelines available via stat). Moreover, relocation isn’t closing under the guidelines.

SIGN: Board acting in good faith within statutory authority has control over relocation of students within the district
and is not affecting legal rights of any persons.

COMPARE: Bezaire v Windsore RCSSB’92: Contrary to guidelines/ board policy, board closes 9 schools in face of
financial crisis, affected parties given no opportunity for input. HELD- Guidelines = doctrine of fairness, School
closing is different from school relocation – has a real effect on the community – social, cultural, and recreational
impact.

BROAD CLASSIFICATION: The classification of broad regulatory functions as ‘ministerial’ or ‘policy-based’

has also precluded regulated industries and producers from successfully claiming an entitlement to consultation before
decision with significant economic impact:

Canadian Association of Regulated Importers v Canada (AG) 1993 FC:

FACT: Ministerial decision changed quota system of importation of eggs and chicks, which significantly
affected the importer. Association claimed they had not been consulted in change:

HELD: Rules of Natural Justice are not applicable to legislative or policy decision. It was a ministerial rather than
board that was establishing quotas (although minister role was broader then usual). Although damaging, other
gained, and because exercise is a legislative or policy matter, not within courts to interfere.
Decisions made during Emergency:

EXEMPTION= In emergency situations, even where there is a basis for action, compliance with duty may be suspended
until after the required decision has been made:

Key Case R v Randolph 1966 SCR:

HELD: Post Officer Department suspended mail to one person b/c of suspected criminal activity. Purpose of investigation
without respondents having heard or without opportunity to object.

HELD: Interim orders validly made pursuant to Section 7 Act after-the-event hearing. Section enables Post General to act
swiftly in performing the duty of protecting public

Cardinal v Director of Kent 1985:

HELD: Per Le Dain- while duty applied to imposition of isolation or segregation of prison inmate, in ‘urgent/emergency
circs’ there could be no requirement of prior notice/opportunity to be heard before decision. But once recommendation
to end segregation of prisoner has been made by review body duty of fairness requires prison director to inform inmates
of his intended decision to reject the recommendation, provide reasons and afford opportunity to context his intended
decision.
4. FOURTH TRIGGER: Charter & Bill of Rights

Section 7 of the Charter and the Bill of Rights (1)(2) are triggers for another source of procedural obligation:

Section 7 Procedural Threshold:

WHAT Protects right to not be deprived of life, liberty and security of the person in accordance with the principles of
fundamental justice. Provision does impose the requirement to observe “fundamental justice” – a concept with procedural content
– on at least some administrative decision-makers,

Key Case Re BC Motor Vehicle Act 1985 the SCC held that the principles of fundamental justice include procedural
fairness protection, but the right does not constitutionalize the duty of fairness.

WHEN Applies only in context of decisions which - deprive life, liberty, security, thus a higher threshold then CL duty.
o NOTE: When one of these is not to be found in accordance with principles of FJ, it is unlikely that it will be considered
justified under s.1 Oakes Test under Charter
o NOTE: Pursuant to s.32(1), Charters application is restricted to Parliament and government of Canada and its legislation,
thus it is restricted within administrative to bodies or activities = ‘government’ *therefore must be Gov body)

Singh v Canada (Min of Imm) 1985 SCR [bodies operating at arm’s length]
FACT:
 Minister on Advice of Immigration Committee revokes Conventional refugee status. A applied to Appeal board for
redetermination of status, arguing no oral hearings because board found no reasonable grounds for belief that A could
establish claim. Appeal to FCA alleging s.7 Charter breach

ISSUE: Are they entitled to fundamental freedoms via Charter or Bill of Rights?

RATIO- Charter:
In determining whether A has been deprived of s.7, must first look at what rights A has under Immigration Act. Here,
Immigration Act was complied with. Next Ask whether deprivation of rights afforded by act amount to a deprivation
within meaning of Charter. Must look at life, liberty, and security of the person in separate terms.
Here, there was fear of persecution, therefore, security of the person is affected. FJ requires procedural fairness.
Immigration Act was inadequate to enable C the opportunity to know case against him and meet case. Especially since
credibility is at issue, an oral hearing is required. Act as it stands allows summary adjudication w/o hearing. This is
irreconcilable with s.7. And could not be saved via s.1. Cost savings cannot outweigh FJ.

Charkaoui v Canada (Immigrant & Citizenship) 2007 SCR:

FACT: Convention refugees were named in certificates of inadmissibility. These security certificate issued under IRPA, sets
procedures for review of certificate. Decision was final under scheme. Impartial judge reviewed certificate. Refugees were given
no disclosure, except non-sensitive matters.
ISSUE: Had state interfered with s 7 (LLS) conforming to principles of fundamental justice?
HELD: Section 7 requires fair process having regard to nature of proceedings and interests at stake.
RATIO: Therefore, s.7 does not permit‘free-standing inquiry’ into whether particular legislative interest strike a balance
between individual/societal harm, it requires limits be imposed respecting FJ. Otherwise, no difference b/w s7
and s1.

Overarching FJ applying here is that before state can detain, it must afford fair process: (each must be met)
(1) Hearing before independent/impartial judge
(2) Decision must be on facts and law
(3) Right to know case put against you and right to answer case

o Right to know need not be absolute when there are national security concerns. Chiarelli, Suresh. However, here there are
tremendous individual interests at stake in the context of deportation. IRPA tries to meet FJ via review mechanism. However,
secrecy required by scheme denied named person opportunity to know case put against him, therefore undermined judges ability
to come to decision based on all relevant fact/law. This is not in accordance with FJ pursuant to s 7. This is not saved by s1:

Pressing objective & proportional means –

 o Applying Oakes Test (R v Oakes 1986):
A finding of proportionality required:
(a) mean rationally connected to objective
(b)minimal impairment of rights
(c) prop between effect and importance of ob.

HELD: protection of national security = pressing and substantive objective and IRPA procedures were rationally connected to
objective. However, non-disclosure did not minimally impair named persons rights. Thus unconstitutional.

Wilson v BC (Medical Services Commission)

FACT: Scheme for limiting number of practicing doctors and restricting the geographic areas to control $ HC
ISSUE: Was “liberty” s.7 broad enough to encompass opportunity of a qualified licensed doctor to practice medicine in BC
without restraint as to place, time, purpose even though there is an incidental economic component to the right
being asserted?
HELD: Right to work infringes upon liberty interests – right to pursue livelihood/profession and connected with sense of
dignity and self-worth; not purely economic right. Scheme did offend principles of FJ in violation of s 7– based on vague and
uncertain criteria, which leaves room for arbitrary conduct.

Blencoe v BC (HRC) 2000 SCR

FACT: BC HR tribunal rendered decision 30 months after sexual harassment complaint. Leads to attention, depression, un-
employability complaint against commission for unreasonable delay = serious prejudice to family= abuse of process and
denial of natural justice. CA stayed HR proceedings finding deprivation of s.7 security, not in accordance with FJ.

ISSUE: Does Charter apply to BCHRC? Threshold issue- Was Commission and tribunal agents of government pursuant
to s.32 Charter (Does Charter apply to BCHRC)

HELD: Since HR Code grants various powers to commission to investigate, commission cannot escape Charter
scrutiny because it is operating at arm’s length (Pursuant to Eldridge, Commission is carrying out legislative scheme of
HR Code). Consequently, once complaint is brought before Commission, admin proceedings must comply with Charter.

ISSUE: Has s.7 been violated by delay in HR proceedings?

DEFINITIONS / MEANINGS: For the purpose of the appeal, the outcome is dependent upon the meaning to be given to the
interest of “liberty” and “security of the person”.
o Liberty no longer constricted to freedom from physical constraint- sufficient it affects important fundamental life choices.
o Security protects both physical and psychological integrity of the individual. Therefore: psychological harm must be
state imposed and psychological prejudice must be serious. (Morgantaler). There must be connection between state-caused
delay and the prejudice suffered by the respondent.
o Ordinary stresses and anxieties that a reasonable person would suffer does not equal serious profound effect on R’s
psychological integrity.

HELD: Only in exceptional cases where state interferes in profoundly intimate and personal choices of an individual
st
and state-caused delay in HR proceedings could trigger s.7 security. Respondent is unable to cross the 1
threshold. Court is not convinced the delay in this case was inordinate.

 However Court shows concerns for lack of efficiency of commission. Cost awarded pursuant to s.47 SC Act in
favour of C. (Average length= 19.9 months)
Bill of Rights Threshold:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of
race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof
except by due process of law;

2 (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determinatio n of his
rights and obligations;

WHAT Bill of Rights real relevance is confined to where Charter is absent. From this perspective there are 3 threshold
dimensions to the Bill of Rights that promise a more extensive reach in terms of procedural protection than provided by the key
Charter provision in s.7:

(1) Terms: ‘individual (BoR) vs “everyone (C)

(2) Inclusion of ‘enjoyment of property’ (s.1)(a) in (BoR)
(3) Attachment of procedural guarantees in hearings to ‘determinations of rights and obligations s.2(e) (BoR).

Could Procedural protections in ss.1(a) and 2(e) apply to Legislative proceedings; or were they subject to a threshold simila r to that
established for common law procedural fairness (Inuit Tapirisat):

Authorson v Canada AG 2003 SCR:

FACT:
o C is disabled vet whose pension administered by DVA were limited pursuant to Parliamentary statute 5.1(4)
Department of Vet Affairs Act providing no claims could be made after coming into force of provision. Vets sued
Crown for breach of fiduciary duty, arguing they were statute barred and statute was inoperative pursuant to Bill of
Right 1(a); 2(e):

ISSUE 1: 1(a)What process is guaranteed by BoR when property rights are extinguished?

HELD: Procedural protections in BoR do not apply to Legislative proceedings and does not protect against the
expropriation of property by passage of unambiguous legislation.

ISSUE 2: S.2(e) Applies only to guaranteed FJ of proceedings before a tribunal / admin body that determines rights/ob.

HELD: Section. 2(e) protections are operative only in application of law to determine individual rights and obligations. No
duty to provide hearing before enactment of legislation.

RATIO
o Due process protecting in BoR do not grant procedural rights in the process of legislation enactment. BUT they do
confer certain rights of notice/opportunity in the adjudication of individuals rights/obligations. Authorson appears
to mean that the quasi-constitutional norms prescribed by BoR are of no assistance in decision making context that
fall on the legislative end of the legislative/administrative threshold for the application of common law procedural
fairness.

Note: this last point was confirmed by Larmer J, in BC Motor.

6. Content of Procedural Obligations (Right to be Heard)

We turn now to this question: if procedural obligations are triggered, what does the decision-maker have to do? Or more concretely, what is the content of these
procedural obligations?

If Your Procedural Obligation Comes from a:

(1) STATUTE Procedural obligation = whatever statute says is the content of the duty, ‘whatever the statute says is the content’
o However, exceptions, determinations of whether statute is complete code, or whether room for CL supplementation

(2) COMMON LAW The content where these sources apply is broken down into 2 broad classes of procedural rules:
(1) Right to be heard
(2) Right to an impartial/ independent decision-maker

The issue however, is that the precise rules coming from Common law, Charter or BoR varies from case to case according to
the circumstances!

With respect to the right to be heard, you must start with the Baker considerations:
o Baker gives you a (non-exclusive) list of considerations that tell you at least something about content.
o Specifically, the Baker test suggests whether the content will be robust or not.
o (It actually tells you a little bit more if your trigger is legitimate expectations: with legitimate expectations, the
content of the procedural obligation is generally what was promised in the procedural promise that gave rise to the
legitimate expectation in the first place. If the promise was substantive, you will not be able to enforce it directly, but
at the very least, it may lead to enhanced or more procedural fairness.)

BAKER CONSIDERATIONS: Start here—as it provides a non-exhaustive list of considerations that tell you about content.

Baker v Canada (Min of Citizenship/Immigration) 1999 SCR:

HELD: B/c rights, privileges, interests of the individuals are affected, there is a duty of PF.
SIGN: Lays down “Content of Duty of Fairness” (STEP 1) (after Knight Steps)

(1) Factors affecting content of the duty of fairness, to determine a general level of procedural fairness:

a. Nature of decision and process followed in making it:

The closeness of admin process to judicial process should indicate how much of those governing principles should
be imported into realm of admin decision making Knight. More process provided for, the more likely it is that
procedural protections closer to trial mode model will be required by duty of fairness.
b. Nature of statutory scheme
Courts are attentive to the terms of the legislation. Greater procedural protections will required where statute is silent
(on procedures) and vice versa.
c. Importance of decision to individual affected:
 The more important the decision is to lives of those affected and the greater its impact on that person, the more
stringent the procedural protections
d. Legitimate expectations of parties – ie if LE certain procedures will be followed
e. Procedures chosen by tribunal:
 Respect the choices of procedure made by agency itself. Baker SCC acknowledge that sometimes courts should
be deferential to agencies procedural choices b/c of expertise, personal & budgetary limitations, etc.

 NOTE: Some factors suggest a stricter requirement under a duty, while others suggest a more relaxed requirement. In
Baker- On balance, the duty of fairness was more than simply minimal and required full and fair consideration of the
issues, those affected must have a meaningful opportunity to present evidence relevant to case and have it fully and fairly
considered

(2) Legitimate Expectation and Convention: Baker argues that Convention on Rights of Child gave right to LE thus
when H/C was being made, specific procedural requirements that would normally be expected would apply pursuant to
Convention. Court holds Convention is not the equivalent of a government representation, therefore no LE.

(3) Participatory Rights: Issue was whether failure to provide oral hearing/notice to children is inconsistent with
participatory rights required by duty of fairness.
  Baker factors required full and fair consideration of issues, however oral hearing is not always necessary for
H/C decisions. Here, H/C decisions different from judicial decisions & Baker had opportunity to put in writing.
 Flexible nature of duty of fairness recognized that meaningful participation can occur in different ways in different
situations.
(4) Provisions of Reason: It is now appropriate to recognize that in certain circs, the duty of PF will require the provisions of
a written explanation for decision.
 Baker argues duty in these circs-requires reasons be given by decision maker (failure to do so = breach of principles of
fairness)
 General CL duty of fairness does not require decisions be provided for admin decision. BUT reasons foster better
decision making, reasons important when affecting individual rights, when there’s a right of appear, etc., Here,
officers notes were sufficient

(5) Reasonable Apprehension of Bias: PF requires decisions be made free from reasonable apprehension of bias and by an
impartial decision maker
 Duty to act fairly in a manner =/ reasonable apprehension of bias applies to all persons who play significant role of
decision making, whether subordinate or final decision maker (Baker= immigration officer), esp in the context of
immigration law, and the diversity of Canada
 Test for Reasonable Apprehension of Bias: Laid down in Committee for Justice and Liberty v NEB 1978: “What
would an informed person, viewing matter realistically and practically conclude?”
 In Baker- a well-informed member of the community would perceive bias when reading Officer’s comments.

(STEP 2) (After Knight steps, after Baker considerations): having decided a general level of procedural fairness, court will
decide from a range of possibilities what specific procedures are required:

Notice Disclosure Opportunity to Participate Hearing

Opportunity to give Evidence Right to Counsel Oral reasons Written reasons

LEGACY: Admin decision making is now seen as falling somewhere on a spectrum between quasi and legislative decision
making, with procedural entitlements varying according to placement on spectrum.
 Once X rights/privs/interests are at stake, duty applies and the question then becomes one of degree.
 Baker Analysis has become an integral part of the framework for assessing procedural context of fundamental justice
decisions engaging Section 7 Charter.
 Suresh v Canada 2002 SCR: reasoned that because fundamental justice demanded, at minimum, compliance with
common law procedural fairness, it was appropriate to look to the factors discussed in Baker to inform its analysis of
procedural safeguards required by s.7.

Suresh v Canada (Minister of Cit and Immigration) 2002 SCR:

FACT: Minister issued security certificate, deporting A from Canada. Opportunity to make written submissions and file
material with minister, however, A did not have access to the report which formed the basis of the security certificate &
was not unable to respond to it in any capacity.
Issue: Are procedures for deporting set out in Immigration Act Constitutionally Valid?

RATIO: Court must determine procedural protections to which an individual is entitled under s.7 Charter, and in doing so will
consider CL approach to PF via L’Heureux Dube Baker: 5 Factors to determine general level of PF:

(1) Nature of decision to deport: resembles judicial proceedings: while serious nature, decision is one where discretion
must attach. Therefore, militates neither in favor nor against procedural safeguards.
(2) Nature of statutory scheme: suggests need for strong procedural safeguards b/c surprising lack of procedural protections
compared with analogous statute
(3) Appellants interest in remaining in Canada are significantly high, not being his status of Convention refuge, but also
because he may face torture if he returns home. Therefore this heightens procedural protection under Act.
(4) Procedural Fairness via Article 3 CAT: prohibits deportation where there are substantial grounds for believing person
would be in danger (= legitimate expectation, thus right to P safeguard, raising burden)
(5) Choice of procedure by agency: deference to minister must be reconciled with elevated level of procedural protection.
 HELD: Weighing factors, SCC finds procedural protections required by s.7 do not extend to level of requiring Minister to
conduct full oral hearing, or complete judicial process. However, more procedures then required by Act are needed:
o Refugee must be informed of case to be met and opportunity to challenge, Minister must provide written reasons
(articulating substantial grounds that torture will not occur).
o These procedural protections need not be invoked in every case of deportation of a Convention refugee under s.53(1).
Burden on applicant to establish a threshold of risk for torture.

[A] PRE-HEARING ISSUE & [B] ISSUES RELATING TO NATURE OF ACTUAL HEARING ITSELF

Prehearing Issues Include: Issues of notice, Claims to Pre-Hearing Discovery/ Disclosure of evidence to be relied on and
Delay in process of Admin Proceedings.

Nature of Actual Hearing includes: Should hearing be oral/written/both. If Oral is cross examination available. What types of
evidence can decision makers rely on. To what extent must a decision maker reveal evidence to affected person. What duty to
provide reason.

[a] PRE HEARING ISSUES:

[1] NOTICENecessary because without it, procedural rights are not exercised effectively.
o 2 FORMS: WRITTEN/ ORAL (Webb)

HOW means of giving notice is specified by legislation, especially when developed by some agency affected a large
indefinite number of individuals

Large Indefinite number of Individuals = public forum notice:

Re Hardy and Min of Education 1985:

SIGN: unreasonable that every resident in school district be personally given intent to close, rather sufficient that closure
be made known throughout district generally, thus =reasonably expect it to come to intention of interested parties=
opportunity to fairly present side before final decision is made (McLaughlin J).

Re Central On Coalition and On Hydro 1984:

SIGN: Where notice has to be spread to large number (Southern ON), newspaper blast not sufficient as it did not reach the
large minority in rural section. Description in notice was vague and confusing.

Law Reform Comm of Canada, working paper No.25: Indp Admin Agencies 1980

GOAL: independent agencies should experiment with innovative notice techniques to create a balanced picture of the issue.

CONCLUSION: Agencies compile a list of persons and grounds known to be of interest and provide them with
comprehensive abstracts of issues coming before the agency. Would augment more universal communication via mass media.

EXAMPLE: The CRTC has an extensive list to which anyone can add their name to, notice is sent to everyone on their
mailing list.

Mail= Insufficient as there are risks (Dated sent/received):

Re City of Win and Torchinsky:

FACT: Act prohibits appeals after specified date. T received assessment in mail on the specified date of appeal. City sought
to prohibit appeal.
HELD: Court dismissed City’s claim and held notice period of 10 days was directory not mandatory

Notice must give enough Info about Issue to enable party to respond:

R v. Ontario Racing Comm exparte Taylor 1970

HELD: Notice only said, “your presence is required…”Court held there was a clear failure to disclose information re
consequences of the hearing might lead to revocation of his license.

When should notice be given and what are the limits on its content and wording:
 Canada AG v Canada (Com of Inq on Blood System in Canada- Krever Com) 1997 SCR:
FACT:
o 1,000 Canadians infected with HIV and Hep C from blood products. Inquiries Act, RSC 1985 directed Commission to
review organizations’ (Red Cross, Hemophiliac Society) operations etc. re blood transfusions and infections.
o Notice of Dec 21 naming parties, recipients given until Jan 10 to announce how they would respond to notice in final
submission.
o The Order authorized Commissioner to adopt procedure he may consider reasonable, and own rules and procedure:

ISSUE: What limits if any, should be imposed upon findings of commission of inquiry / report? Should different
limits apply to notices warning of potential findings of misconduct?

HELD: not violation of procedural fairness

o Findings may adversely effect parties because they must be made to define nature/responsibility for tragedy under
investigation = can impact reputation. Thus it is essential that procedural fairness be demonstrated in the hearings of
the commission.
 Fairness of Notice: required within statute to be issued in confidence, more detail the better for greater assistance to
party.
 Procedural protections: A argues tighter evidentiary protections were necessary. Court held other parties found
procedure fair, were extensive and exemplary, and is not sure what other procedural protections would be
necessary.
 Timing Notice: argue that because Commission waited until last day of hearing to issue notice, their ability to cross
was effectively was hindered. However, court finds notice should be given as soon as feasibly possible, and given
the complexity and size of case, notices could not have been completed without length of time that occurred. This is
all based on the circumstances of each case.

2. DISCOVERY/DISCLOSURE (pre trial issues)

STATUTE / CODE RULES Rare for statute/ procedural code to address disclosure, except to provide that tribunal may
issue orders to control its own process or tribunal may make order governing disclosure

CL RULES Degree of disclosure always varies depending on nature of tribunal.

o R v Stinchcombe (criminal case) disclosure of all evidence that may assist A, subject only to privilege or relevance
o This is not followed however, See May v Ferdale below. Yet depends on circumstances.

Inherent jurisdiction of Tribunals to order discovery where it is necessary in interest of fairness:

Canadian Pacific Airlines Ltd v Canadian Air Line Pilot Ass 1993 SCR:

SIGN: Board has only inherent/ incidental power conferred on its by statute to order discover, thus no inherent jurisdiction
to order discovery. In this case, the provisions relied on did not authorize compulsory discovery order outside the context o f a
formal hearing (therefore it looks like there is no room for pre-hearing discovery)

CIBA Ltd v Canada (Patent Medicine RB) 1994 [Non-binding on Economic Regs]:
FACT: A seeks disclosure of all doc in Boards possession relating to determination of whether or not drug company over
charged. A argues disclosure should extend to all facets of staff investigation/ all doc in hands of board. Board refuses, argues
it is acting pursuant to Mandate

HELD: Full disclosure all of possibly relevant info = impede its work from an admin standpoint. Since Tribunal is full
economic regulator, not affecting HR it is not bound by Stinchcomb

RATIO: Law/Policy require that some leeway be given to an admin tribunal with economic regulatory functions, pursuing
its mandate.
 May v Ferndale Institution 2005 SCR:
FACT: A= inmate, involuntary transferred by CSC pursuant to computer matrix, argues they are bound by Stinchcombe
disclosure requirement because decision = loss of liberty.

HELD: SCC held Stinchcombe principles do no apply in admin context. But CSC was bound by s.27 to give offender all
info to be considered incl matrix. This was not done thus, deprived and unable to effectively know and respond to case
against him.

3. DELAY: (pre trial issue)

UNDUE DELAY in conduct of administrative proceedings could = breach of rules of natural justice or procedural fairness
because it creates prejudice.
o NOTE: It is one of the ground specified in the codification of the basis for review of PEI Judicial Review Act!

COMMON REASONS FOR DELAYS:

o Agencies have limited resources=/ handle caseload
o Waiting for criminal proceedings to be completed (Ie: in Prof Disc Cases)
o Increased tendency of body dealing with complaints to accept complaint even though they are based on conduct occurring
in past.

WHERE/ WHENBlencoe demonstrates that both for the purposes of the Charter and the CL of procedural fairness, delay
had two dimensions in the context of statutory decisions making:
o Delay affects ability of person to respond adequately to proceedings
o Delay in its abuse of process sense

NOTE: Court indicate that the argument was one that would always be difficult to make under Charter or CL, at least where
A was seeking a stay of proceedings as opposed to an order for an expedited hearing.

Blencoe 2000: Court is not convinced that such prejudice can result directly from delay in HR proceedings. It cannot be said
thatR’s s.7 rights were violated orthat conduct of Commission=abuse of process. However concerns for lack of efficiency of
commission= cost award.

Sask v Kodellas 1989:

HELD: To determine ‘unreasonable delay’ in content of Charter factors to look at: (1) was delay prima facie unreasonable
considering nature of proceeding? (2) reason/responsibilities for delay, considering Complainant and Commission’s conduct
(3) What prejudice/ impairment was caused by the delay.

SIGN: 1) 38-47 month delay between filing and hearing were much greater then time required, and was prima facie
unreasonable, 2) totally cause by commission, 3) caused prejudice to Kodellas, ie missing evidence

NOTE: Consider whether this case would have been decided the same in wake of Blencoe? Seems to be a higher threshold
for s.7 FJ

[B] ISSUES RELATING TO NATURE OF ACTUAL HEARING ITSELF

ORAL HEARING: face to face meeting with the actual decision maker.

TRADITIONAL  Oral hearing was usually required as an element of natural justice.

CURRENT Emergence of procedural fairness doctrine – presumption in favor of oral hearings disappeared. Oral hearing
cannot be assumed for procedural fairness requirements.
 Nicholson: discretion left to board as to whether hearing be oral/written in context of whether A was acting police officer.
 Baker: SCC confirmed written hearing was sufficient. Legitimacy of other forms (electronic) gaining recognition.

DECISIONS AFFECTING CHARTER RIGHTS: Singh per Beetz J- Oral hearing not a universal component of FJ, but is
required where the issue is of credibility. Wilson J emphasis not so much on lack of oral hearing, but lack of access to the
ministry’s case – she believed oral hearings were not universal requirement of FJ under s.7 – though she did promote its use in
terms of determining credibility.
 Claims to oral hearing are situation sensitive in sense that their necessity may depend on the matters that are at issue in the
particular proceedings as opposed to being a feature of all exercises of the relevant statutory power. This is clear from Baker
where they refused to lay down a general rule.

HR complaints dealt with by methods of inquiry other then a regular hearing:

Masters (Ontario agent general of NY) v Ontario 1994:

FACT:
o 47 sex assault accusations against Masters as Agent General of NY, report done, argues he was not present when 45
witnesses gave testimony. A argues that where credibility will determine main issues before decision maker vital to
A’s career, general duty of fairness/nature justice require an impartial decision maker to determine credibility by
way of full trial permitting witnesses to be crossed. Using prerogative power, Premier choose to apply
investigatory procedures permitting a more informal assessment.
HELD:
o PF should be influenced by gov’s own directives. This is not a trial but an investigation. Knight. Pursuant to
SPPA 1990, no hearing (determining credibility) was either required by statute or law. Knight. A given
opportunity by premier to make legal argument however neither investigators nor A were given opportunity to
further reply.
o Masters was aware of all the allegations against him and was provided opportunity to be heard. Requirements of the
duty to act fairly in scope of employer-employee relationship were met.

Oral hearing where credibility is at issue:

Khan v Uni of Ottawa 1997 CA:

FACT: Student fails exam= fails faculty minimum= required to complete additional semester. Appeals grade to Fac Exam
Comm on ground she submitted 4 th book not graded. Committee met without her or notice. Dismissed appeal. Sought JR after
unsuccessful appeal to Uni Senate Committee

Analysis: high standard justice required b/c threatened loss of academic year. PF before Exam Committee pursuant 12.03(b)
required oral hearing because credibility was at issue & A needed opportunity to give correct/contradict arguments against
her. Therefore she was denied PF. Committee disbelieved A explanation for 4 th booklet without hearing from her (oral
hearing) = denial of PF.

HELD: need not show actual prejudice to prove she had been denied PF. She only needed to show that Commission breach
of duty may have reasonably prejudiced her.

DISSENT: A given opportunity to respond via written means. Interest not as significant as in Singh.

OPEN (PUBLIC) HEARING:

Where oral hearing is decided, question becomes whether it should be open to public?

SPPA Ontario (The SPPA prescribes minimal procedural rules for the conduct of proceedings of tribunals)
o Pursuant to statute, openness is a matter for tribunal discretion. However s.9 conditions the exercise of that
discretion with a presumption in favour of openness + creates specific considerations forming basis of any decision
to proceed in camera either in whole/part.

Immigration Act 1992: amended to provide all hearings before adjudicator be open to public, with exception where
adjudicator was satisfied that there was a serious possibility of life, liberty and security endangered by reasons of public.

RIGHT TO COUNSEL:
Right to representation is generally assumed, provided for in many cases by SPPA s.10

WHEN IS COUNSEL NOT PROVIDED: When representation will serve as an impediment to legislative objective and the
efficient dispatch of a statutory mandate:

Re Men’s Clothing Arbitration procedures are agreed to by parties. Favors informality, speed, and cheapness. Counsel
would extract toll on system. Counsel should only allowed when considering complex issues/ issues of importance.

Irvine v Canada (Restrictive Trade Comm)1981 SCR: [No absolute right to counsel]
SIGN: Counsel was restricted in course of inquiry because to allow counsel at port of entry interview would basically
entail a mini-trial= unnecessary duplication.
RATIO: Principles of fundamental justice, do not include right to counsel, in routine info gather.
 Howard v Stoney Mountain Institution 1985 FCA: [s.7 does not create absolute right to counsel]
FACT: Prisoner challenged disciplinary proceedings for lack of counsel. Officer held s.7 does not create a ‘new wave of rights’,
therefore not persuaded that absence of counsel= unfair, appeal dismissed.
ISSUE: Is it just for R to proceed against A in the absence of a lawyer?

RATIO: Enactment of s.7 does not create absolute right to counsel in all proceedings . What is required is opportunity to
present case adequately. Right to counsel depends on circumstances of case, its nature, gravity, complexity
Here: The whole of A’s 267 days of earned remission was in jeopardy, this alone suggests need of counsel, thus refusal of
capacity
A’s request for counsel= refusal of opportunity to which he was entitled to adequately present his defense.

New Brunswick (Minister of Health) v GJ 1999 SCR: [3 factors = entitlement to state-provided counsel]
Issue: Where s.7 of Charter required mother to be provided with counsel for purposes of resisting application by Child
Welfare authorities for renewal of an order placing 3 children in custody of state.
HELD: In circumstances of the case, A right to fair hearing required she be represented by counsel. Violation of s 7 and
not justified by s 1.
This has to do with 3 factors:
(1) Complexity of proceedings (2) Seriousness of interest at stake (3) Capacity of Appellant.

DISCLOSURE AND OFFICIAL NOTICE

WHAT Party is entitled to know what evidence and representations have been given and are entitled to adequate
opportunity to respond:

Kane v Board of Gov UBC 1980 SCR: UBC professor is suspended when he was not there. Board under obligation to
postpone for further consideration of matter until A can attend.

EXEMPTIONS:
 Chiarelli demonstrates that some limits to access can occur in the name of confidentiality.
 Access to Information Act 1985: Exemption from disclosure in content of a freedom of information request
 Canadian Evidence Act 1985: Crown/Exec privilege codified, applicable to proceedings before admin agencies.
 Access to Agency Info: Access to problem to medical disclosure

ACCESS TO AGENCY INFORMATION:

o Napoli v. BC 1981 Worker’s Compensation Board did not disclose record of claimant, and gave him less benefits than he
was entitled. A appeals. Court holds nondisclosure did not satisfy requirements of natural justice. Did not give A
opportunity to rebut or scrutinize damaging reports against him.

o Charkaoui: Court holds admin proceeding isn’t akin to criminal proceeding Stinchecombe, but nevertheless s 7 is
implicated because of impact on individual. In this case, disclosure of evidence is necessary for individual to present
adequate defense. However, given confidentiality of proceedings, up to judge to filter information.

Mission Institution v. Khela, 2014 SCC 24, paras. 1-12; 81-90

FACTS:
In 2010, Khela was moved to a maximum security prison from Mission Institution, a medium security prison. He applied
for a writ of habeas corpus. He claimed the transfer was unlawful because it was unreasonable and procedurally unfair.
ISSUE:
Warden based transfer on a scoring matrix, security report, as well as informant sources. This was never disclosed
to Khela.
HELD: Section 29 of CCRA allows transfer of inmate but also allows him to make representations re transfer. S 27 of CCRA
provides inmate should be given all the information considered. Onus is on decisionmaker to show s 27 was complied with.
Decisionmaker can justify non-compliance with: a) safety of persons; b) security of penitentiary; c) protect confidentiality.
Here, Warden did not disclose information to Khela for him to make a defense including report, matrix, reliability of
informants. Warden did not justify noncompliance. This was thus procedurally unfair.
ADMISIBILITY OF EVIDENCE:

WHAT What procedure should agencies use for fact finding, especially for facts that are different from facts that usually
concern courts?
RULE: Agencies are not governed by rules of evidence used by courts unless some statutory provision requires them (this is
rare). This is discretionary.

CROSS EXAMINATION
SPPS s.10.1: conditioned cross-exam being ‘reasonably required’ for a full/fair disclosure of all matters relevant to issues in
the proceedings.

Innisfil (Township) v Vespra (Township) 1981: [Defined ‘’reasonably required]

RATIO: Where citizens are involved and statute affords them full hearing, one should expect right to cross examine. Especially
b/c of importance of cross examination. Appeal allowed. Appellant has right to cross examination - this is conferred to it by the
municipal act (in the case).

Re County of Strathacona No. 2 and MacLab 1971:

HELD: Refusal or limitation on right of cross examination does not always require court to quash an order made in
proceedings. If afforded equal effective method of answering the case made against him, in other words, given a fair
opportunity to correct or controvert statements to his prejudice, the requirements of natural justice are met. The importance
of cross examination will vary with the nature of the case being heard. Here, Report of expert was available to rebut by
written statements. Inability to cross-examine expert goes to weight of evidence, not admissibility.

[c] POST-HEARING ISSUES: REASONS

REASONS
 Many statutes provide requirement to provide reasons, before Baker CL was reluctant to impose on stat or prerogative
decision makers these obligations
 Baker, SC did not hold that all exercised of stat or prerogative involve giving reasons, but in this it was obvious that
interest at stage triggered obligation.

IMPORTANT QUESTION: Where does the ‘threshold’ of ‘sufficient importance lie’ to trigger reasons?

Content of the Duty to give reasons:

FORMULA: If decision is challenged, court will test adequacy of reasons by asking whether in light of issues in dispute and
argumentsandevidenceadvanced,thetribunalsreasonsare‘sufficient’toenablethecourttoeffectivelyscrutinizethe decision.

Manitoba Ltd London Limos v Unicity Taxi:

Objectors to taxi licensee application claimed no reasons were given for granting license. Court holds standards for granting
reasons were sufficiently clear, proceedings were recorded, and records satisfy the requisite reasons.

Wall v Independent Policy Review Director:

Wall wanted to bring claim against Chief of Police. However, his claim was dismissed as outside of the SOL and little/no
reasons were given. Statute allows dismissal if outside of SOL but must consider other factors. Court holds violation.
Reasons are important: 1) crafting reasons allow decision maker to focus issues; 2) reasons assure individuals their
concerns have been met; 3) reasons allow for judicial review. Here, only cursory reasons. This violated PF and natural
justice.
7. CONTENT OF PROCED OBLIGATIONS: (Unbiased Decision-maker)

WHAT The Right to an unbiased decision-maker is the 2nd broad class of natural justice or procedural obligations
associated with the Common Law, Charter and Bill of Rights

TESTS What rule barring bias applies to a given admin decision, however, there is no one universal standard especially
when it comes to alleged prejudgment or attitudinal bias.

MAXIM: Nemo Judex: ‘no one should judge in their own case’

NO SUBJECTIVE INQUIRY: Courts always avoid inquiry into actual state of mind but will ask whether the particular
situation of decision-maker is such as to give rise to a sufficient risk that impermissible degree of bias will exist. There is
a sliding scale with more leniency on the side of discretionary decisionmakers and strictness on the side of judicialized
proceedings.

POLICY: justification for refusal to investigate- public is entitled to have confidence in impartial resolution, confidence is
undermined when fact are such as to create impression in public mind that decision-maker is too predisposed toward a particular
outcome R v Sussex Justices 1924

LAW AT PLAY: CL has been supplemented by constitutional Section 7 (fundamental justice) and quasi-constitutional
BoR 1(a)2(e) (due process/FJ) norms and these may not only result in disqualification of adjudicators but also the
disregarding of statutory authorizations for otherwise disqualifying bias’ and indeed striking down regimes.

GENERAL TEST: “reasonable apprehension of bias”

Committee for Justice and Liberty v National Energy Board 1978 SCR:
RATIO: Per de Grandpre: Apprehension of bias must be a reasonable one, held by reasonable and right-minded people.

Test: ‘what would an informed person, viewing the matter realistically and practically—having thought the matter through—
conclude.

NOTE: The Canadian Courts have not all been consistent in the knowledge that is to be attributed to the reasonable bystander:
o R v Libber 1991 SCR: Lamer CJC stated test for institutional bias was based on “fully informed” reasonable people
(This was a constitutional case)
o Old St. Bonifice Res Ass v Winnipeg City 1990 SCR: Sopinka used “reasonably ‘well informed person’ to describe
appropriate vantage point;.

Energy Probe v Canada (Atomic En Control Board) 1994 FCA [general list of interest giving rise to disqualification]
RATIO: kinship, friendship, partisanship, particular profession or business relationship with on of the parties, animosity
towards someone interest, predetermined minds as to the issue involved etc.

Question of Degree. The disqualifying conditions can be broken down into four categories:

(1) ANTAGONISM during hearing by a decision-maker toward party, counsel, witness

(2) ASSOCIATION between one of the parties and a decision-maker
(3) INVOLVEMENT by a decision-maker in a preliminary stage of the decision
(4) ATTITUDE of a decision maker toward the outcome
(5) Additional Pecuniary and Other Material Interests

(1) Antagonism‘unreasonably aggressive questioning or comments about testimony’:

(1) Antagonism:
Baker: evidence of antagonism was found in the memorandum on which the decision was based (therefore antagonism
can be a problem in written or paper hearings.) I.e. CAPITAL LETTERS, EMOTIONAL OUTBURST, aggressive
questioning.

(2) Association:

United Enterprise Ltd v. Sask: Hearing for a revocation of license. Allegations of bias after in-house counsel and judge conversed
socially during proceedings, had multiple unilateral communications, and expressed familiarity with one another incl bbq invitation.
Court holds apprehension of bias by comparing hearingss to a judicial proceeding.

(3) INVOLVEMENT: Earlier stage of decisions

Committee for Justice, Lib v National Energy Board 1978 SCR [Test of Bias by association]
Fact: Where Y participated in planning stages of pipeline and was later involved in the very decision of the board to
pursue pipeline development. Y had interest.
HELD: fact that the proposed application was later refined or revised did not make it one which “Y” was a stranger to
before coming to court (he had a solid stake)

(4) ATTIDUDE BIAS: attitude of a decision maker toward the outcome

Paine v UofT 1981 ONCA: [deals with prior involvement and attitudinal bias]
P was denied tenure, after one of the tenured member had made the negative assessment, but was still allowed to sit on the
committee. Trial court holds that the presence of this member constituted unfairness and certainly made the likelihood of
unfairness apparent to any who knew or became aware of the member’s previous statement. On appeal, court holds tribunal
does not act like a court (sliding scale). Application does not need to be approved unanimously. Here, none of the members
approved P’s application. Therefore, no manifest unfairness.

Note: Standard: Demanding demonstrations of ‘manifest unfairness’ it Van Harten suggests that the ONCA appears
to be adopting a higher threshold for judicial intervention than is normally applied in procedural fairness cases.

Howard Johnson v Sask: Hotel challenged bias b/c Native American adjudicator presided over claims alleging
discrimination against Native Americans. Court holds no bias b/c no evidence adjudicator approached the case without an
open mind fair to all parties. The mere fact adjudicator has done work in civil rights for Native Americans is not
dispositive. I.e. Thurgood Marshall.

Pelletier v Canada: Investigation into Prime Minister. There is a reasonable apprehension of bias because Commisioner
made comments to the media. He did so without even considering all the evidence. Therefore he prejudged the outcome of
the investigation. He trivialized the proceedings, claiming “juicy stuff” was yet to come. Conduct outside of the
proceedings had a detrimental effect. A reasonable person would question the fairness of the proceedings.
(5) Pecuniary [financial] and Other Material Interests:

WHAT The Common law has always directly disqualified matters of adjudication where decision maker has a direct
pecuniary or other type of interest:

Covent of Sacred Heart v Armstrong Point Ass 1962 MACA:

HELD: Decision of Board about zoning quashed because board member was co-owner of residence in area that was
‘enhanced’/ protected by decision.

EXCEPTIONS: There are de-minimis exceptions- many judgment question “Whether directness is indeed the appropriate
standard to apply in deciding whether a material interest is disqualifying and, if so, what constitutes a ‘direct’ interest?:

Energy Probe v Canada (Atomic En Con Board) 1984 FCA: [even where interest is indirect, it might be relevant
and still be subject to normal test for identifying disqualifying bias]:

FACT: Ontario Hydro’s license was up for renewal. Energy Probe objected to participation by one board member:
Olsen, who was alleged to be president of company that had sold to Ontario Hydro.

HELD:
Interest was alleged b/c of business relationship (because of past sale), however no direct pecuniary interest is found.
Interest was indirect and uncertain thus far too remote to constitute pecuniary interest (bias).

Canadian Pacific Ltd v Matsqui Indian Band 1995 SCR: [too speculative]
ISSUE: SCC rejected assertion of disqualifying pecuniary bias against members of Indian band being called upon to
adjudicate claims of tax assessments levied against non Indians in relation to their use of land on reserve.

HELD: Per Iacobucci J: ‘there is no personal and distinct interest on part of tribunal’. Interest only goes to community.
Conflict between interest is too speculative, therefore no reasonable apprehension of bias.

(5) Variations based on context:

Newfoundland Tele Co v NFLD (Board of Commission of Public Utilty 1992 SCR:

FACT: Commissioner elected as states she intends to play adversial role of Board ‘championing consumer rights’. A argues
reasonable app bias
HELD: To disqualify a member- X must establish there has been a pre-judgment of the matter to such an extent that any
representations to contrary would be ineffective. Viewed cumulatively, (in light of fact statements were made 3 days after the hearing
was ordered) statement inevitably led to conclusion that a reasonable person appraised situation would determine a reasonable
apprehension.

RATIO- Members who perform policy formation function should not be susceptible to a charge of bias simply because
of express of strong opinion prior to hearing. This does not mean there are not limits, but it confirms courts flexible
approach. Here, went over limits.

Old St. Boniface Res Ass Inc v Winnipeg (City) 1990 SCR:[What constitutes disqualifying bias varies with context]

FACT: Proposal to build condos in District. Municipal councilor involved from start, spoke to finance committee, then joined
committee deciding proposal.

HELD: Rules of justice/fairness are variable standards, there content depends on the circumstances of the case.

RATIO: Statement by individual members of Council which may give rise to appearance of bias, will not satisfy test
unless court concludes they are expression of final opinion on matter, which cannot be dislodged. Here, councilor
appeared before the finance committee on the merits, and nothing to suggest he had a relationship with the developer.
Therefore no suggestion that he was not “amenable to persuasion.”
 Independence & Unbiased Decision-making
Use of independence reflect a concern about the integrity of agencies as ‘institutionally independent’
WHAT

WHERE: Challenging lack of independence is facilitated by the employment of the expression ‘independent and impartial
tribunal’ in BoR 1(f) and Charter 11(d)

Independence v Impartiality :

 Judicial independence is closely related to guarantee of impartiality, but they are separate and distinct in terms/values:
o Impartiality: Refers to state of mind/attitude of tribunal in relation to issues/parties in a particular case. The terms implies
absence of bias (actual/perceive) EX- double functions (layperson as member of commission and tribunal= infringement
of impartiality.
o Independence: In s.11(d) Charter reflects traditional constitutional value of JI, implying not merely a state of mind in
actual exercise of judicial functions, but a status of relationship to others, particularly to the Exec Branch, resting on
objective conditions.

“Valente Principles”: (Valente v. R 1985)

a) Security of tenure: most important aspect of JI (securing against interference by executive
b) Financial Security: right to salary and pension should be established by law and not be subject to arbitrary
interference by executive in matter that could affect JI.
c) Institutional independence of the tribunal with respect to admin decisions bearing directly on exercise of its
judicial functions

Valente Considers the meaning of an "independent and impartial tribunal" guaranteed in section 1 l(d) of the Canadian Charter
of Rights and Freedoms. 2 The issue was whether a provincial judge sitting as the Provincial Court in Ontario in December
1982 was an independent tribunal within the meaning of s. 11 (d). The focus in Valente was on the relationship of the judges
and the Provincial Court to the executive government of Ontario, through the Ministry of the Attorney General. Court was
clear that independence and impartiality were separate considerations.

Canadian Pacific v Matsqui Indian Band 1995 SCR [Confirmed application of Valente outside of constitutional context]

Modification of Valente principles: for admin tribunals:

o The requisite level of institutional indep will depend on the nature of the tribunal at issue - the interest at
stake and other indices of independence such as oaths of office. 

The question should be:

o Whether a ‘reasonable right-minded person, viewing whole procedure as set out in assessment by-law, would have
reasonable apprehension of bias on basis that members of appeal tribunals are not independent.
 2747-3174 Quebec v. Quebec (Regis des permis d’alcool) – Regie is involved in investigation, filing of complaints,
presentation of case to directors, and ultimately adjudication. Possibility of same person performing all these tasks. Court
holds, “an informed person, having thought the matter through, would have a reasonable apprehension of bias in a substantial
number of cases.”

On the other hand, employment of directors does not raise a reasonable apprehension of bias. Pursuant to Valente, director’s
have sufficient security of tenure to be independent. However, dismissal at pleasure must be avoided.

Nor is there any issue of institutional independence b/w Regie and Minister of Public Security. Although many points of
contact, not unusual for the Regie’s management to be subject to supervision of an Executive. Not been shown how Minister
might influence decision-making of the Regie.

Ocean Port Hotel v. B.C. – (Issue of “at-pleasure” appointments and independence). Liquor boards serve “at-
pleasure” of Lieutenant Governor. Court holds distinction b/w tribunals and courts. Tribunals necessarily operate as
part of the executive branch of government. No freestanding constitutional guarantee of administrative tribunal
independence.

Keen v. Canada Nuclear Commission President Keen ordered Nuclear plant closed for failure to meet safety
standards. Closure resulted in shortage of medical isotopes produced for heath purposes. Natural Resources Minister
then dismissed Keen. Court held Keen’s termination satisfied the requirements of fairness for an “at pleasure”
appointment.

A word of warning: do not rush to the assumption that independence rules flow from all instances where procedural
entitlements might be owed. It would be wrong, for example, to urge that where a statute creates an administrative regime that
you think i s insufficiently independent, common law procedural fairness can be used to attack this arrangement The common
law cannot prevail over a statute. And so, your independence argument would have to be based on a s.7 Charter or Bill of
Rights source, assuming these are even triggered.

END OF CHAPTER
8. CONTENT OF PROCEDURAL OBLIGATIONS
 (ISSUES ARISING FROM INSTITUTIONAL DECISION-MAKING)

NATURE OF INSTITUTIONAL DECISIONS:

Defined: some decisions of administrative agencies are made in personal way: individual makes a decision and takes
responsibility for it. However, other decisions are the product of institutions and institutional processes. The sheer volume
of these types of decision and their range and complexity. They may demand a large staff and arrangement for dispersal.

o PROS OF INS DEC: allow for large volume of decisions and opportunity to establish internal checks and balances;
specialization amongst staffers; sharing of expertise, opinion and perspective.
o CONS OF INS DEC: Bureaucratic in nature, especially large possibilities for anonymity, loss of authority by senior
levels, inconsistency etc.
o OBJECTIVE: To design procedures that combines strength of both individual and institutional decision making.

PRINCIPLE OF NON-DELEGATION:

o ‘delegata potestas non potest delegari’= one to whom power is delegated cannot himself further delegate that power

Willis 1943 Non Delegation:

o Deals with extent to which authority may permit another to exercise a discretion entrusted by a statute to itself.
o Where authority named in statute has and retains general control over it, this is within the maxim, however where ‘sub -
delegate’ X has substantial degree of control over actual exercise of discretion so entrusted and it can be said to direct its
own mind to it, there is in law ‘no delegation’

REALITYThere exist many circumstances where sub-delegation is permissible.

ISSUE
Sub-delegation only becomes important when certain functions that are sub-delegated offend procedural rules
o EXAMPLE: issue of large boards who are asked to make decision consistent

Vine v Nation Dock Labour Board 1957 HL:

FACT: Board has express power to delegate function to local dock board. Discipline committee of local board ordered
discharge of A, A brought action for decision that action of committee is void because the local board has no power to
delegate its disciplinary power.
HELD: Duty in this scheme is too important to delegate. The quasi-judicial disciplinary powers not cannot be delegated.
Non-entitlement to pay, suspension, dismissal must be a step taken by the board and not by a delegate.

Morgan v Acadia Uni 1985 NS SC:

FACT review of disciplinary decision, statute provided board of governors power carry out resolutions, by laws etc for the
maintenance and discipline of students. The board delegated its responsibility for discipline to the dean of students.
HELD: Very nature of the duty required by scope and objects of legislation is such that a delegation be envisioned in
interpretation the section. It would be impractical and inappropriate to consider otherwise. Delegation to dean was fair and
practical.

Deciding Without Hearing:

PRINCIPLE: only those members of an agency who hear particular case may decide it, an another aspect of duty of fairness

RATIONAL: Person is denied an adequate opportunity to influence the decision if they are unable to address those who
make/participate in making the decision. Thus= breach duty of fairness for member of hearing panel who is unable to attend
for part of the hearing to later participate in decision making process.
 In Canada, while court do not require power to be delegated expressly by minister to civil servants, they continue to find that
some exceptions may require ministers personal decisions:

Suresh v Canada (Minister of Cit and Imm) 2002 SCR:

SIGN: Court demands minister personally provide reasons when making deportation order of a person ‘likely to suffer’
torture on return to his country.

Jeffs v NZ Dairy Board 1967 NZPC:

FACT: Board has general power to govern production/ marketing of milk/ zoning for supply arrangements. Zoning
committee was established by board to hear issue of zoning (3 member panel) to investigate and report back to board.
Committee decided to proceed with public hearing, heard evidence, wrote report. Board accepted recommendations.

HELD: Clear from Board resolution appointing committee that board did not delegate to committee right duty of deciding
zoning applications. Committee was not expressly authorized to hold public hearing, or collect evidence, thus operated
beyond scope. Board failed to hear interested parties as it relied on committee – they were under obligation to do so in order
to discharge its duty to act judicially in the determination of zoning applications.

Consultation Among Agency Members:

WHAT Whether and to what extent does the duty of fairness preclude the members of an agency panel who heard a case,
from discussing it with other members of agency after hearing has ended, but before they have rendered their decision:

International Woodworkers of Amer (union) v Consolidated-Bathurst Ltd 1983 SCR:

FACT: Union application to Labour Relations Board (large) for determination. Board had developed a test for imposing a
duty, 3 person panel hearing, at conclusion discussed with other members of ‘full board’ and gave decision upholding
existing test but in favour of applicants. Application for JR for improper decision.

Analysis: Decision making has to turn on policy consideration, thus after deliberating, any panel of Board contemplating a
major issue may, through Chairman, cause a meeting of all Board members to be held. This ‘Full Board” meeting is limited
to policy implications of draft decision.

HELD: Majority Per Gonthier: No evidence exists that particular meeting was used to impose any given opinion upon
members of panel. The rules of natural justice must take into account institutional constraints faced by admin
tribunals who are created from increased efficacy of administrationn of justice. Discussion with colleagues does not
constitute, in and or themselves, infringements on the panel member’s capacity to decide the issues at stake independently .

RATIO: Consultation process in his reconsideration decision, does not violate the audi alteram partem rule provided that
factual issues are not discussed at a full board meeting, only policy implications, and that the parties are given a reasonable
opportunity to respond to any new ground arising from such a hearing

NOTE: Institutionalized consultation process will not necessarily lead Board members to reach a consensus but it provides
a forum where such consensus can be reached freely as a result of thoughtful discussion on the issue at hand.

DISSENT: Full Board Meeting could have affected the outcome. First, discussions for bringing about uniformity can
affect individual decisions. Second, Board discussions consisted of people not present at actual hearing. Third, Board
decision hinged on materials not presented at Hearing. Fourth, policy decisions deprive a party of powers of cross-
examination.

Tremblay v Quebec (Commission des affaires sociales) 1992 SCR:

FACT: Commission decision based on internal consultation process. Consultation process not compulsory, only by
motion of President.
ISSUE: Is decision of Commission, refusing to reimburse A for DME expenses, contrary to rules of natural justice.
HELD: Statute orders decision-makers to decide, not Pres. Fact that Pres can on own motion refer matter for discussion
may= constraint on decision maker, because they may not feel free to refuse to submit questions to the ‘consensus’ table.
Compulsory consultation creates appearance of lack of independent, infringing right to independent tribunal.

Ellis-Done Ltd v Ontario (Labour Relations Board) 2001 [tension btw fairness of process and deliberative secrecy]
FACT: 3 panel board heard grievance, dismissing grievance on first draft, after full board meeting, majority of panel
upheld grievance. A applied for JR alleging change= of a factual nature as opposed to legal/policy change
HELD: Per Binnie J: No direct evidence of improper tampering esp b/c decision based on law & policy.
RATIO: Where decision changes after consultation, mere deliberative secrecy is NOT tampering.
Counsel at Hearing: 
Common for tribunals to have a counsel available to advise on admissibility of evidence, procedure or
questions of law that arise during a hearing.

This could lead to challenge for bias on grounds that reasonable observer might conclude someone other than one
statutorily authorized to decide was in reality the decision-maker (where counsel oversteps): Venczel v. Association of
Architects (Ontario) (1990),

Counsel/Staff Preparation of Reasons:

ISSUE: How far can tribunal take advantage of the expertise of their staff, including their counsel in the preparation of the
reasons for decision, without breaching some duty of fairness?
REALITY Strict law have determined that decision must be that of tribunal member. Must be in substance, those of the
tribunal members, not counsel:

Khan v College of Physicians ON 1992 ONCA [Tribunal may seek assistance of counsel in prep of state of reasons]

Facts: Khan argues committee breach duty of procedural fairness by permitting its counsel to play so significant of a role
in the preparation of its reasons for decision as to create a reasonable apprehension of bias.

Held: Counsel’s involvement in the drafting process did not impair the integrity of the discipline proceedings. Counsel had
no mandatory authority. The committee retained the authorship and avoided any inference that counsel had co-opted or had
delegated to him the reason-writing function.

RATIO: Advice affecting substance does not amount to legal advise, rather its intended to improve quality of reasons by
Committee. This takes account of complexity of modern decision-making. But Where counsel is so connected with one of the
parties to the hearing an appearance of bias will result if counsel participates in drafting process. (importance of
neutrality). Also where the decision maker is compelled to discuss with others who are not charged with responsibility of
deciding case – independence may be lost.

Agency Guidelines:

Some Agencies make extensive guides to interpretation of enabling statute and exercise of their statutory discretion. They help
to formulate a general and comprehensive approach to a problem without being confined to the facts. They should always be
published and made available to those appearing before the agency.

ISSUE: What extent does the duty of fairness limit the effective use of guidelines  in particular – the tension b/w the ‘due
process’ value represented by the principle that judicial decision makers should be independent AND the ‘bureaucratic value’
that, as government institutions responsible for delivery of public programs, admin agencies should adopt measures to ensure
their decision are coherent, thoughtful, an consistent.

EX: Immigration and Refugee Board of Canada: Guideline on Use of Chairman 2003:
o Chairman has stat authority to issue guidelines and to identify decision as jurisprudential guides to assist members in
carrying out their duties.
o They are complementary tools, the purpose of which is to promote consistency, coherence and fairness in the treatment of
cases at the Board.
o 4 Circs exist where Chairman can consider exercising his authority to issue a set of guideline: (1) to address specific legal
issues (2) provide guidance on question of mixed fact and law (3) to codify exercise of discretion (4) to provide guidance
on procedural issues.
o External consultation shall also take place to the extent of which shall be determined at discretion of Chairman
o The guidelines remain in effect until Chairman revokes them
o Although not binding, members are expected to follow guidelines, unless compelling or exceptional reasons exist to
depart from them

Thamotharem v Canada (Min of Cit and Im) 2008 FCR

ISSUE: because guidelines issued by Chairman of board do not have full force of law, does Guideline 7 unduly fetter RDP
Members’ discretion to determine for themselves, case-by-case, the order of questioning at refugee protection
hearings?
HELD: Language in s.7 expressly permits members to depart from standard order of questioning in exceptional cases, thus
Court should be slow to conclude that members will regard themselves as bound to follow the standard order. S.7 meant to
ensure consistency and quality. No evidence decisionmakers rigidly adhered to guidelines. A reasonable person would not
think RDP independence to be fettered.
END OF CHAPTER
Substantive Review Materials
9. Backdrop to the Standard of Review Analysis;
10. Evolution of the Standard of Review Analysis;
11. The Current Test

9. Backdrop to the Standard of Review Analysis

DEVELOPMENT OF THE STANDARD OF REVIEW ANALYSIS

Substantive Grounds of Review:

WHAT
Second form of admin review, Substantive errors come from errors of law, errors of fact and errors of discretion

 Errors of FACT= misapprehension of facts [misunderstanding]

 Errors of DISCRETION= wrong choice/outcome
 Errors of LAW= misconstruing the law

ROLE OF COURTSCalled on to review the interpretation/application of a statutory provision by an administrative decision

maker

Privative [exclusionary] Clauses:

WHAT
Grant exclusive jurisdiction over subject matter, via a declaration of finality, prohibiting any court proceeding

RULE OF LAW Do no sit comfortably within Dicey/Wade rules of law: must at all costs be prevented from being sole judges of
the validity of their own acts.

PARLIMENTARY SOV Sit well with doctrine. Unambiguous clauses demonstrate legislators intent to oust courts from
supervising actions of admin decision makers.

INTERPRETATIONS: Judges historically hesitant in finding the privative clauses ‘plain meaning’ and circumvented it through
following a chain of reasoning Anisminic HoL. Where clause existed, Court determined whetherissue‘fellwithin jurisdiction’or
whether it was a privative clause. Where issue was jurisdictional, court entitled to review
which was done using a correctness
standard of review.

JURISDICTION ISSUE? Courts could determine whether an issue was jurisdictional by asking 2 questions:
(1) Prelim or collateral question doctrine? [Bell v ON (HRC) 1971]
 Bell v On: HRC had rule against discrimination, applied to ‘self-contained dwelling’; landlord claimed his first floor
flat was not a self contained dwelling, thus the tenant could not bring complaint to HR board/committee. JR held
that the complaint/committee ruling was contingent on the first stage – whether it was a self-contained unit. This
would determine the authority of the HRC to decide the matter. It was held not to be.
(2) Asking the wrong question doctrine? [Metrolife Co 1970] (asking wrong question, even though within jurisdiction, can
become jurisdiction issue) Here, Board determined the wrong question, focusing on criteria for membership, and not membership in
question, and thus lost jurisdiction.
Breakthrough of existing Substantive Review Modes:

CUPE v NB Liquor Corp 1979 SCC: [leading case]

Facts:
 Employee strike, Act said striking employees were prohibited from picketing & employer prohibited from
using ‘replacement workers’. Company brought in managers to do the work of strikers.
 Privative clause that Board decision was final.
 Board upheld both complaints, (1) picketing illegal, (2) mangers working illegal, Company appealed.
 Corp argued that ‘manager’ in act was defined differently than ‘employee’ replacement.
Issue: The issue before the Supreme Court was whether Board's decision was sufficiently incorrect to warrant
overturning in the presence of the privative clause. Interpretation of s102(3)(a) ): does it prohibit temp workers, can
management personal be defined within act?
Held:
 S.102(3) seems to lie logically at heart of specialized jurisdiction confined to Board. However, using
review, found it as reasonable as the alternative interpretation suggested by CA.

SIGNIF: Dickson J., writing for the unanimous Court, proposed a new analytical framework to approach
administrative decisions.
HELD: Shifted focus of JR to rationality of agency decision. Jurisdictional issues are assessed according to “correctness” standard.
Non-jurisdictional questions are assessed according to a “patent unreasonableness” standard.
RATIO:
(1) Court should only interfere with an interpretation of a provision, that is ‘so patently unreasonable that its
construction cannot be rationally supported by relevant legislation
 Held decision of board was not patently unreasonable, retained their decision. And section in Act was badly
drafted and ambiguous, thus deference should be given to the board.

(2) Admin decision makers are not ‘inferior tribunals’ but specialized bodies, possessing a legislative mandate to
apply their expertise/experience to matters they may be better placed to address then original courts’

(3): Court embraced message of curial deference, moving away from existing approaches to review for
jurisdictional error involving the ‘pragmatic and functional approach’

IMPACT: Demonstrated 3 sources of SCC doctrinal change:

(1) Broader reappraisal of the respective roles assigned by the legislature to the courts and to admin bodies in the
implementation of regulator scheme
(2) Where ambiguity exists, no single interpretation can be correct, rather, there are several plausible
interpretations. This interpretative choice requires courts ask to determined who is better placed to make the
choice
(3) Fast methods of ‘prelim or collateral question’ is not helpful because anything can be characterized as
preliminary. Short of patently unreasonable, courts could not interfere with result reached by administrative
decision makers

Pressing issue given development of deference= Whether JR is constitutionally protected? Since interpretations should express will
of legislator, where PRIV CLAUSES exist, it would fall that admin could be insulated from JR. After CUPE, SCC avoided
completely insulating admin bodies from JR:

Crevier v AG (Quebec) s 96 attack on power of privative clause to oust JR.

RATIO: Constitutionalized JR for jurisdictional questions, even in face of privative clauses. Legislature does not have power to
oust judicial review completely. Otherwise, this would create a s96 court.

Pasienchyk:
SIGN: Per L’Heureux- Dube: ‘since as a matter of constitutional law, a legislature may not, however clearly it expresses itself,
protect an admin body from review on matters of jurisdiction, it cannot be left to decide freely which matters are jurisdictional and
whichcome withinBoard’sexclusivejurisdiction.

Use and Misuse of Discretion:

Abuse of Discretion as a Grounds for JR:

A decision made that is beyond scopeofbody’s power.

WHAT

Halifax v. Nova Scotia Commission exercised its discretion to deicide whether the Complaint should proceed to a Board of
Inquiry. Court characterized this as administrative rather than judicial. Hence, standard is “reasonableness” and judges should
exercise restraint in intervening to prohibit a determination by the Board of Inquiry.

Suresh Ministerial discretion to deport refugee when he poses security risk but would likely face harm upon return. Court holds
standard of review pushpanathan is “deferential” – 1) absence of privative clause but limited right to appeal by leave of federal
court; 2) expertise of minister esp for national security; 3) purpose of provision is to permit balance of humanitarian concerns with
security concerns – this the minister is uniquely situated to do; 4) nature of threshold question is factual – whether there is a
substantial risk of torture. Upon balancing these factors, the standard is “patent unreasonableness.”

Shell Canada v Van City 1994 SCR:

Facts: Council passes resolution refraining to do business with Shell if in South Africa (unhappy with Shell’s activity in SA).
Shell attacks validity of municipal’s resolution. The stated purpose of the resolution was to indirectly place pressure against South
Africa’s apartheid regime.

Issue: Were resolutions beyond city’s power (abuse of discretion)? Was phrase capable of encompassing matter’s outside of
city boundaries, provided they affect the welfare of citizens? Was it thus ultra vires?
Analysis: Courts respecting responsibility of elected municipals, Per McLaughlin J (in minority dissent) concluded court should
adopt a generous, deferential standard.

Held:
MIN: Motives of City cannot be said to have exceeded power conferred via statute providing for ‘good rule/ government of
city’. Find phrase capable of encompassing decisions made on matters outside of city.

MAJ: Because the resolutions pursued the ‘improper purpose’ of affecting matters in other parts of the world, it was
outside the city’s legislated powers. There is no express power authorizing resolution. ‘Good rule/government of city’
placed territorial limits on Councils jurisdiction. Therefore acted beyond its statutory discretion = abuse of discretion
From Q’s of Jurisdiction + Privative  to Expertise? And Deference?

SCC continues to embrace it by asking ‘should the courts defer’ in almost every challenge.
LEGACY: CUPE

Two following cases established that Courts should defer to Agency’s Resolutions of an issue of statute interpretation even
in face of a right to appeal on such issue:

Pezim v BC (Superintendent of Brokers) 1994 SCC [ key case]

Facts: P failed to make timely disclosure pursuant to Securities Act, BC Securities Commission suspended them from trading
shares. P exercised right under s.149 to appeal decision on Q of law to CA with leave.
Issue: What is appropriate standard for Court reviewing a decision not protected by privative clause when there exists a Statutory
right of appeal and where case turns on Q of interpretation of ‘material change’. This all helps to determine standard of review.

Analysis: T ake nature of stat into account- in this case (Statute is regulatory in nature, goal to protect investor, regulation is
highly specialized)
Held:
Deference even in light of a broad right of appeal. Clear legislature’s intent was togiveComm a verybroad discretion to
determine what is in public’s interest (deference), especially given Commission plays role in policy development, a
higher degree of deference if warranted.
Question of law at issue (‘interpretation of material change’)goes to heart ofregulatory expertise (deference). Not patently
unreasonable, commission was right in there determination.
Ratio: ‘Specialized Duties’ requires deference be shown to decisions of specialized tribunals on matters falling squarely
within tribunal expertise.

NOTE: Iaccobucci: hinted need for an intermediate standard: reasonableness simpliciter.

Canada (Director of Investigation) v Southam Inc 1997 SCR [ key case]

Facts: Comp tribunal decides Southams acquisitions lessened competition, decided remedy. Statute provided for appeal to FCA.
Issue: Did FCA err in concluding it owed no deference to tribunal’s finding of relevant market hindrances and by substituting
finding of its own?

Analysis:
Courts must consider: 1) nature of the problem 2) applicable law properly interpreted in light of its purpose 3) expertise of
the tribunal.
1. Problem = one of mixed fact and law because if tribunal erred, it was in applying the law to facts (Suggests Def).
2. Parliament also gave unfettered right to appeal (Suggesting less-then Def). Aim of act= economic, not legal,
3. Specialized tribunal better suited to economic issues (Deference).

HELD:
(1) Factors point towards deference: question was of mixed law and fact and principles of application of law fell squarely
within Tribunals area of expertise.

RATIO:
 Iacobbuci J: applies new middle standard: reasonable simpliciter.
 Presence or absence of privative clause not so crucial and fundamentally important jurisdictional question was
supplemented by ‘expertise’ as key determinate of the standard of review.
 Pushpanathan v Canada (Min of cit/imm) 2003 SCC:Legislative Intent  Pragmatic and Functional Test:
Issue: Whether Immigration Act can be interpreted as excluding Refugee who committed narcotic crime contrary to
principles of UN? No privative clauses exist.
Analysis: Determine legislative intent by 4 categories Pragmatic and Functional Test: (1) privative clause (2)
expertise (3) purpose of act (4) nature of problem- fact, law, mixed.

HELD: (1) Immigration Act allows JR of serious question of “general importance.” (2) Board does not have relative expertise wrt HR.
(3) Question falls within international law framework & relates to “general questions of law.” Adjudicative functions aren’t
polycentric, not developing policy, but merely vindicating a set of relatively static human rights principles (4) Generalized
proposition of law weigh against deference  Factors taken all together, lead to an imposition of correctness standard
Here applying a correctness standard: narcotics trafficking is not sufficiently serious within the purview of 1F(c) to deprive the
individual of protections in the Convention. First FCA erred in dismissing the objects and purposes of the Vienna Convention and
according no weight to the travaux preparatoires. During discussion, many nations expressed reluctance to broad exclusionary
powers of 1F and wanted to give it a narrower and more focused meaning. This meaning does not include drug trafficking.
Second, Article 33 allows refoulement of a refugee if they pose danger to security of country/community and it is distinct from
1F.
NOTE: Jurisprudence after Pushpanatham relied on these 4 categories, but it remains unclear whether, where and to what
extent these factors influence Dunsmuir

A
p
p
l
i
c
a
t
i
o
n
s
o
f
“
T
h
e

P
r
a
g
m
a
t
i
c
a
n
d

F
u
Applications of “The Pragmatic and Functional Test” → From Pushpanathan above

[a] Privative Clause: presence weighed in favour of curial deference, but never played a determinative role. But lack of expertise could
outweigh clause.

[b] Expertise: 3 steps for evaluation

(a) Court must characterize expertise of Tribunal
(b) Court must consider own expertise relative to Tribunal
(c) Court must ID nature of specific issue before admin decision, relative to their expertise.

Expertise are broad: dealing with economic, financial, technical matter (Sec Com, Int Tribs, Telecom- they have all been
recognized by Court as possession experience and specialized knowledge)= DEFERENCE

Canada (AG) v Mossop 1993 SCR: where expertise (HR) so close to that of court =/= def
Chamberlain v Surrey School 2002: locally elected rep of a board is often better placed to understand community concerns
then the court. However because of HR dimension, less deference was owed.

[c] Purpose of the specific provision compared to the statute as whole: Legislative intent (does it point to deference)?

[d] Nature of Problem: the nature: question of law or fact or mixed conveniently map out on the spectrum of deference as less
deference, neutral or more deference.

Baker v Canada (Min of Imm) 1999 SCR: Here, (a) no privative clause = less deference); (b) Fact that formal decision maker was
Minister and not delegate= deference due to expertise; (c) Minister’s decision to determine whether H&C considerations warrant
exemption from the Immigration Act. This involves applying relatively “open-textured” legal principles. This signals greater
deference to the decision-maker. (vs decision involved individual vs government as opposed to government vs government) (d)
Here, H&C considerations involve factual inquiry.
Upon weighing the factors, the standard is reasonableness simpliciter. Applying this standard, the decision to deny H&C relief
was unreasonable. As evidenced by the notes of the officer, there was failure to give weight to the interests of the children, which
is central to H&C considerations.

END OF CHAPTER
 11. The Current Test
CURRENT STANDARD OF REVIEW:

After many Courts plead for the abandonment of 3 standards in favour of a return to 2 standards of review: Correctness and
Reasonableness (Toronto City v CUPE 2003 SCC), the SCC responded in Dunsmuir

Pragmatic and Functional Test Approach: Was reaffirmed but renovated by the followed case.

Dunsmuir v NB 2008 SCR: [key case]

Facts: ‘A’ dismissed from Civil Service position after receiving many unsatisfactory notices. In order to avoid the PSLRA,
his office did not dismiss him “for cause,” but rather dismissed him as an office holder at pleasure. A gave notice he would
refer to adjudication claiming Office actually dismissed him “for cause.” In interpretation statute Adjudicator found D had
been denied procedural fairness in manner of dismissal and dismissal was void, ordering reinstatement. JR overturned.
Issue: Question of law as whether adjudicator was entitled to inquiry into whether employer actually dismissed D for cause, and
whether cause existed.
RATIO:
(1) Simplifies standard of review: 2, rebranding Pragmatic and Functional Test and “Standard of Review Analysis”.
(2) Where past guidance on deference does not exist court must review all factors. Standard may be assumed to apply
automatically based on for example, the nature of the question at stake.
(3) Question of CENTRAL IMPORTANCE to legal system as a whole, are assigned correctness review, ONLY if they are
also outside the specialized areas of expertise of the admin decision maker.

Here: This is a question of law, there is a privative clause, relative expertise of labor arbitrators, this was a question of law,
BUT NOT one of central importance to the legal system, thus standard of reasonableness applied. On this standard,
court rules decision failed to meet this standard and was therefore unreasonable. Adjudicator inquired into whether employer
dismissed employee for cause. However, this was not within the range of admissible statutory interpretation.

DUNSMUIR TEST:

Where question is one of fact, discretion or policy, deference usually applies, same must apply for mixed fact and law question-

DEFERENCE (Reasonableness) CORRECTNESS

- Questions of fact, discretion, policy - Question of law (central to important of legal system, which is
- Question of mixed fact and law outside specialized area of expertise)
- When tribunal is interpreting own statute - Constitutional questions
- Where particular expertise exists - True Question of jurisdiction (where tribunal must explicitly
- Privative clause determine whether its statutory grant of power gives it the
- Questions of law that do not rise to level of central authority to decide a particular matter
importance may be compatible with reasonableness. - Questions regarding the jurisdictional lines between 2 or more
competing specialized tribunals

PROCESS OF JR= Two Step Process

(1) Ascertain whether jurisprudence has already been determined in a satisfactory manner the degree of deference to be accorded
with regard to a particular category
(2) If no precedent exist, court should proceed to an analysis of the factors (above) making it possible to ID the proper standard of
review applying the standard of review analysis.
Case Application:

Canada (Cit/ Imm) v Khosa 2009 SCC:

FACT: Unsuccessful app to Immigration App Board to remain in Canada despite criminal charges, did not accept ‘sufficient H+C
grounds to warrant exception within meaning of s.67. JR reviewing applied patent and unreasonable standard (2009), dismissing K’s
challenge. FCA applies reasonable simpliciter.

HELD: SCC (Maj Binnie): Q of whether K had shown sufficient ‘H/C’ consideration to warrant relief from decision was a decision
which Parliament confined to Board not courts. On general principles of admin law, including Dunsmuir, applications judge was to
give higher degree of deference to Board, Decision of board was held to be within range of possible, acceptable outcomes. FCA
erred

Dr. Q v. College of Physicians SCC holds lower court erred in not considering all aspects of the pragmatic and functional
approach – need for deference b/c considering credibility. Standard should be one of “reasonableness.”

Irving Pulp & Paper Interpretation of the management rights clause of a collective agreement, specifically, a random alcohol
testing policy. SCC applies reasonableness std of review and holds board decision is reasonable. In these types of disputes,
generally, a balancing of interests – whether benefit to the employer of alcohol test is proportional to harm to employees’ privacy.
Here, Board found uncertain safety gains when compared with severe impact on employee privacy. This was within the range of
reasonable outcomes.
DISSENT: Board’s decision was unreasonable – it did not apply precedent, instead it applied an evidentiary standard unknown to
the arbitral jurisprudence. This fell out of the range of reasonable/acceptable outcomes, hence it was unreasonable.

McLean v. British Columbia (Securities Commission), 2013 SCC

FACTS: Mclean entered into settlement agreement with Ontario Securities Commission, relating to misconduct as a director. She
received notice that BC Securities Commission was bringing proceedings against her by way of the BC Act. Under this act, there is a
six year limitation period “after date of events that give rise to previous proceedings.” Mclean argues this period has passed.
Commission issued order against Mclean.

APPEAL: the BC Court of Appeal concluded that, “generally the interpretation of a limitation period provision in a statute will
engage the standard of correctness”. It came to this conclusion on the grounds that limitation periods should be considered as
general law that is central to the importance of the legal system.

ISSUE: Ever since Dunmisuir developed a ‘more coherent and workable’ framework for judicial review of admin decisions, lower
courts have difficulty undertaking correctness review where reasonableness standard is required.
HELD: SCC reversed decision holding appropriate standard was reasonableness.

ANALYSIS:
 In Dunsmuir, the SCC held that “deference will usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it has particular familiarity”
 While this presumption is subject to a few exceptions, including questions of jurisdiction and general questions of law of
central importance of the legal system, McLean holds that these exceptions are exceedingly rare
 Attaching this principle to the facts of the case, the Court found that limitation periods as a conceptual matter are of central
importance to the legal system but that the specific limitation period that applied to s.161 of the Securities Act was not.
This was due to the finding that the Commission was in a better position to interpret the term “the events” in the limitation
clause within the context of the Act.

SIGN: SCC clarified the presumption of deference given to tribunals when they are interpreting their ho me or closely related
statute.
 Giving Reasons under ‘Reasonableness Standard’:

WHAT Dunsmuir has made it clear that giving reasons (such as those under Baker procedure) are also important for
reasonableness review of substantive decisions. They are considered a prerequisite for courts to conclude a substantive
decision was reasonable.

HOW Examine both process of articulating reasons and their outcome.

SIGN The ‘how’ falls in line with the main concern of the reasonableness review= the existence of justification,
transparency
and intelligibility within decision making process.

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) (2011)

WHAT: Decision clarified the proper approach for judicial review of an arbitrator's reasons under the
principles previously set out in Dunsmuir v. New Brunswick
In Dunsmuir the Court held:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable
outcomes, which are defensible in respect of the facts and law.

FACTS: Judicial review on a reasonableness standard of an arbitrator's award in a dispute involving the calculation of
vacation benefits under a collective agreement. In a 12-page decision, the arbitrator outlined the relevant facts,
arguments, provisions of the collective agreement and applicable interpretive principles. JR held that decision was
largely repetitive, and was not adequate.

HELD: SCC restored the arbitrator’s decision. The reasons provided a reasonable basis for his conclusion. While they
could have been more comprehensive, they were sufficient to satisfy the Dunsmuir criteria b/c when read as a
whole and in context, the demonstrated that he grappled with the substantive live issues necessary to decide the
mater.

SIGN: Clarified that a proper reasonableness review under the Dunsmuir criteria does not involve a separate analysis of
the "adequacy" of reasons which could serve as a stand-alone basis for quashing a decision. Rather, Dunsmuir
requires a "more organic exercise" in which the reasons are read together with the outcome to determine whether
they show that the result falls within a range of possible outcomes.

Decision indicates that it will generally be difficult to challenge a decision based on an assessment of the
thoroughness of its reasons; if the reasons allow the reviewing court to understand why the decision-maker made its
decision and to determine whether the conclusion is within the range of acceptable outcomes, the Supreme Court
has indicated that
the Dunsmuir criteria are met.

Alberta Information and Privacy Comm v. Alberta Teachers’ Association Commission did not give any reasons. However,
Courts consider implicit reasons for the decision – when a reasonable basis for the decision is apparent to the reviewing court.
Cases that consider the standard of review where constitutional issues arise in the exercise of discretion:

Doré v. Barreau du Québec, 2012 SCC 12;

FACTS: The Disciplinary Council of the Barreau du Québec reprimanded a lawyer for the content of a letter he wrote to a judge
after a court proceeding. The lawyer applied for judicial review, inter alia, challenging the constitutionality of the decision,
claiming that it violated his freedom of expression (Canadian Charter of Rights and Freedoms, s. 2(b)).
ISSUE: What is the appropriate framework to be applied in reviewing administrative decisions for compliance with
Charter protections
HELD: Supreme Court of Canada held that in determining whether administrative decision-makers exercised their statutory
discretion in accordance with Charter protections, appellant’s criticism must be measured against the public’s reasonable
expectations of a lawyer’s professionalism
ANALYSIS: The standard of review was reasonableness. Whether ADM took sufficient account of Charter values different from
determining whether law comports with Charter. An administrative decision-maker exercising a discretionary power under his or
her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play
in weighing Charter values. In the Charter context, the reasonableness analysis is one that centers on proportionality, that is,
on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory
objectives HERE, the discipline committee’s decision to reprimand the lawyer reflected a proportionate balancing of its public
mandate to ensure that lawyers behaved with “objectivity, moderation and dignity” withthe lawyer’s expressive rights in light
of their professional constraints. It was, as a result, a reasonable one.

Edmonton v Edmonton Shopping Centers

City taxed Mall based on assessment. When Mall filed a dispute, the City increased its assessment further. SCC holds standard of
reasonableness applies b/c presumption of reasonableness & no exceptions. Specialized tribunal responsible for administering
home statute. Here, decision falls within range of possible, acceptable outcomes. Board proceeded on the basis that s 467(1)
allowed it to increase the assessment at the City’s request. This is grammatical and consistent with the purposes of the MGA to
ensure assessments are “current, correct, fair, and equitable.” Therefore interpretation is reasonable.
DISSENT: Standard is correctness. Legislature created a limited right of appeal. Legislature must have known JR applies to
those questions not covered – this is a “serious question of general importance.” Statutory interpretation does not come within
tribunal’s expertise. Moreover, questions of law should be reviewed on a more exacting standard. Here, Act does not allow City
to correct its own assessments, only Mall. This is evidenced by the shorter notice periods applicable to responses. Otherwise,
there’d be a chilling effect on complaints.

Correctness Standard:

Mowat v Canada 2009 SCR

ISSUE: Whether HR tribunal was within its jurisdiction to award legal costs via statute.
ANALYSIS: The question was one of general law of central importance to legal system and did not engage the HR subject matter
in which the Tribunal had expertise. Having regard for purpose of tribunal’s expertise, the applicable standard of review was
correctness.
HELD: CHRT has no authority to make an award of costs under the provisions of CHRA, inclusion of expenses
unreasonable.

Stewart v. Workplace Health Question of interpretation of “accident” in provincial and federal Worker’s Compensation
Act. Appeals Tribunal determined “accident” does not include gradual onset of stress. Court applies “correctness” standard.
Holds question of law in interpreting “accident.” There is no privative clause. Here, provincial statute does not mirro r
federal statute. It only served to delineate the rates and conditions for payment once eligibility was determined. Thus
tribunal did not apply the law correctly.
CHALLENGING ADMINISTRATIVE DECISIONS

VENUE AND BASIC PROCEDURES FOR JR:

Availability of Appeal:

STATUTE Statutes allows appeals of decisions. Whether stat allows this right, it must be exhausted before seeking JR.
JUDICIAL REVIEWpart of the inherent powers of superior courts to review the exercise of powers by the executive
branch officials.

Structure and Jurisdiction of the Federal Courts:

FEDERAL COURTS: s.101 Constitution Act, only have those powers given to them by constitution or FED statute. FFC
comes in form of TJ and FCA. In admin law, FCC is not always court of first instance. S.28 Federal Court Act enumerates the
Admin Tribunals that’s will direct to FCC as court of first instance.

EXCLUSIVE JURISDICTION: Section 18 FCA specifies, subject to s.28, has ‘exclusive original jurisdiction’ to:
 Issue injunction, certiorari, prohibition, mandamus, grant declaratory relied against fed board, commission or other
tribunal
 Hear and determine any application/ proceeding for relief.

JR of FCC: FCA created a relatively comprehensive guide to the manner of, and basis for JR of admin action. Applicant must
exhaust all other options before applying for JR, failure= denying remedy of JR.

LIMITATION PERIOD: Applicant for JR in respect of a decision/ order of federal board, shall be made within 30 days after
decision first communicated

GROUND OF REVIEW: Section 18.1(2) Identified ‘FC many grant relief…if satisfied that Federal Board, commission or
tribunal:
(a) Acted without jurisdiction
(b) Failed to observe Procedural Fairness
(c) Made an error in law
(d) Made decision based on erroneous finding of facts
(e) Error of Discretion

BAR TO JR: SECTION 18.5: FCA adds a more robust bar to JR- Where statutory appeal from admin decision-maker lies in
one of the bodies listed, there can be no JR of the same subject matter covered in the appeal

 Where statutory appeal is available to both FCA and GIC, presumably the A would select the FCA where questions of
‘law or jurisdiction’ are at issue; when the challenge is the policy wisdom, GIC would be preferred.

 Where A is brought to FCA, there will never be JR, thus when FCA issues its appeal decision, the decision is not
amendable to JR, as FCA is not a federal board, commission or tribunal, under FCA. Rather it is a court, and any
further challenges to any of its determinations are simply taken to SCC. Because GIC is a federal board, commission
or tribunal, it itself is subject to JR by FCC.

LEAVE REQUIREMENTS: Generally speaking, there is no requirement that leave be obtained before A brings application
for JR before FCC, except where statute requires leave be brought before FCC (EX- Immigration Appeals)

STANDING: Per s.18.1(1) FCA: ‘an application for JR may be made by the AG or by anyone directly affected by matter in
respect of which relief if sought”. This provision provides standing as a right to the government of Canada and persons
‘directly affected’ by federal admin decision making.

 Direct Affect”: decision must be one which directly affects party’s rights imposes legal obligations on itor
prejudicially affects itdirectly’.

 Standing however is relaxed through courts recognition of “public interest standing”: serves to provide those who
cannot due to financial restrains, allowed a ‘test’ application or NGO to launch JR on behalf of broader ground.
Finlay v Canada (Min of Fin) 1986: SCC [ public interest standing]
Welfare recipient challenged Federal transfer payments to Manitoba as illegal since he received less benefits as a result.
SIGN: granting public interest standing to a claimant challenging a decision, the SCC accepted that this form of standing would
be available to challenge admin action and not simply legislation. The adopted test addressed concern about scarce judicial
resources, the need to screen out busybodys, the need to hear competing POVs of those most directly affected.

The test:
(1) Is the matter serious and justiciable?
(2) Is party seeking standing genuinely interested in matter?
(3) Is there any other reasonable and effective way for matter to be adjudicated? [relaxed in Canada (AG) v Downtown Eastside Sex]

Canada (AG) v Downtown Eastside Sex Worker Society 2012 SCC:

FACT: Society commenced Charter challenge against prostitution provisions of criminal code under “public interest” standing.

ANALYSIS: Court must consider Test (3). This issue turns on whether Q3- there were not other reasonable/effective manner the
issue may be brought before court. SCC relaxes strict requirements finding it would be better expressed by asking {whether
manner was a reasonable and effective means to bring case to court.} (purposive approach should take into account HELD: all
3 factors applied flexibly/ purposively favored granting public interest to respondents.
Here, 1) matter of public importance – allows an opportunity to assess the prostitutes’ interests through a constitutional lens; 2)
society represent those most directly affected; 3) Society has capacity to undertake litigation and present forum would address
concerns of prostitutes

Harris v Canada 2000 FCA:

Taxpayer sought declaratory judgment that Minister acted illegally in granting preferential treatment to another taxpayer at the
expense of the public. Minister argues lack of standing.
RATIO: Court recognizes that where an overall strong public interest arises, Court may exercise its discretion to recognize
public interest standing.
Here, applying Finlay: 1) justiciable and serious issue; 2) genuine interest as a taxpayer; 3) no other alternative means of relief.
Note: the Finlay criteria held Court determine whether to recognize Harris’ public interest standing. Harris suggests that there
are a range of situations where citizens will have status to assume a law enforcement role.

Energy Probe v Canada:

Question of whether AG has standing. Court holds: 1) AG has direct interest in outcome similar to the right given to any other
person whose interests are affected; 2) there is a question of general importance and it’d be beneficial to canvass AG’s opinions.

Children’s Lawyer for Ontario v. Goodis:

Question of whether Information & Privacy Commission had standing in records access claim against Children’s Lawyer. Court
weighs Paccar (pro-standing: importance of fully informed adjudication) against NW Utilities (con-standing: importance of
maintaining tribunal impartiality, prevent undermining of tribunal objectivity); along with nature of problem, purpose of legislation,
tribunal’s expertise, & availability of other means of attack. Here, grant standing b/c no one other than Commissioner to challenge,
Commissioner has expertise, and there are muted impartiality concerns in light of a non-Court-like model.
[5] REMEDIES

A popular criticism goes as follows: “A particular court judgment has allowed for the ‘tail’ of the remedy to ‘wag the dog’ of the
substantive case.
 The tail of JR (court review of remedies) had been imposed, allowing to ‘wag the dog’ of the disciplines entire approach to
remedies and even admin law.

Remedial Option at Tribunal Stage:

 Tribunals do not have the general jurisdiction that court has to impose remedies, so remedies must be provided for within
enabling statute.
o To determine tribunals remedial options look at statute itself (generally provides list of remedies tribunal can order)
o Even where tribunals remedial power is not expressly provided, one may try and argue that, as a matter of practical
necessity, tribunal must have remedial power to do things its statute requires.
o Any enforcement power must pass constitutional scrutiny.

Challenging Administrative Action

 Internal Tribunal Mechanisms may be provided where enabling statute specifically provides
 Jurisdictional Bodies: jurisdiction implements Act, such as Quebec Admin Justice Act, which creates a Tribunal Administif
du Quebec= super tribunal hearing ‘proceedings brought against almost all tribs/public bodies.
 External non-court Mechanism: ombudspersons, who provide forum for citizen to bring complaints regarding way that
government department/agencies have dealt with them.

When is Appeal Available?

 To determine whether Appeal from Tribunal is Available, Ask:
(1) Does the tribunal enabling statute provide for a right of appeal?
(2) What is the scope of available appeal?
(3) Is appeal available by right, or is leave required. If leave is required, who may grant it?
(4) Is a stay of proceedings automatic, or must one apply for it?

When is JR Available?
 JR is about the inherent jurisdiction of courts to oversee and check admin action in interest of the rule of law.
 Unlike Statutory Appeals, JR is the review of EXEC action beyond what the legislature has provided for.

Old Discretionary Bases for Refusing a Remedy:

 Question is about threshold of whether to grant JR
 It is fundamentally discretionary in ways that appeals are not:
 Discretionary Grounds for Refusing JR came from:
i. Abuse of discretion
ii. Did not exhaust all avenues (JR last resort)
iii. JR brought before tribunal proceeding= premature
 Adms more cost effective/prevent
fragmentation
 Preliminary proceedings may become
moot
 Better able to assess once record develops
iv. JR remedy not granted on moot point
v. Delay & Acquiscence
vi. JR remedy not granted without clean hands
o Baker rejected this conceptual distinction between discretion and law, shifting to the approach of review based on more
flexible, context-sensitive factors, even where 5 grounds for refusing discretion were not present.

Current Threshold of Whether JR available:

 (1) Is Tribunal being challenged, actually a Public Body?
o Factors such as: functions, duties, power, whether its performing a public function, is it on gov payroll
 (2) Do you have standing to challenge tribunal?
 (3) Which court to appeal to for JR
 (4) Stay within deadline (30 days per FCA)
 (5) Did you exhaust all other means of recourse for challenging tribunal actions.
Remedies of JR:

Prerogative Writs available:

(4) Certiorari: Superior court checks inferior court. Quashing the decisions below.
(5) Prohibition: prevent lower court from exceeding its jurisdiction
(6) Mandamus: ‘we command’ is issued by court to compel a lower court or agency to perform a duty it is mandated to perform.
(7) Declaration: judgment that determines and states the legal position of the parties
(8) Habeas corpus ‘produce the body’ employed to bring a person to a court

Discretionary Remedies

Manitoba v. Metropolitan Stores [stays of the Administrative process]

Stay of underlying proceedings pending JR depends on three factors: 1) whether A can make out a prima facie case; 2) whether A
would suffer irreparable harm w/o stay; 3) balance of convenience & public interest

Harelkin v. University of Regina [Alternative Remedies]

Student applied to JR, bypassing Senate Committee. Question of whether Senate Committee was an adequate alternative remedy.
Court holds it is b/c it is convenient and would be less costly and more expeditious. Wording of statute showed legislature’s intent to
confine review within Committee.
DISSENT: Court must consider convenience and adequacy of alternative remedies. A was denied Hearing, and thus at grave
disadvantage upon appeal to the Senate Committee. They have no records upon which to base their decision.

Canada v. Matsqui
A applied for JR directly, bypassing procedures of the Indian Act. SCC considers such factors: 1) convenience of alternative remedy;
2) nature of the error; 3) nature of appellate body; etc. Considering convenience of alternative remedy, SCC holds tribunal was an
adequate forum & respects intent of Parliament for the development of Aboriginal institutions.

Howe v. Institute of Chartered Accountants [Prematurity]

A was denied disclosure. A then applied for JR arguing entitlement to discovery. Court finds prematurity b/c A is asking to rule on
disclosure materials, when Court does not have merits of what is being disclosed before it. ADM could develop the record more
before JR.
Dissent holds A’s right of internal appeal is not an adequate alternative remedy – less costly to adjudge disclosure matter now. JR
would prevent fragmenting or protracting of the proceedings b/c formal hearings have not started.

Air Canada v. Lorenz

Air Canada applied for JR to recuse adjudicator on grounds of bias. Court refuses to review interim decision. Court finds review
would result in delay, increase costs, fragmentation, insufficient strength of claims for bias, & ultimately refuses JR.

Borowski v. Canada [Mootness]

Court denies JR for case raising merely a hypothetical or an abstract question. I.e. if the case will have ceased to have practical
significance for the applicant.

Friends of the Oldman River v. Canada Mister of Transport [Delay]

Court holds delay in filing motion OK b/c respondent was put on notice through concerted efforts of A to challenge dam.
[DISSENT] A should have been prompt in suing. A filed motion when project was already 40% completed. A significant amount of
public money had been spent. Other challenges were ill-founded, and consisted of peripheral and collateral proceedings.

Homex Realty v. Wyoming [Misconduct of the Applicant]

Company was disentitled to relief due to misconduct. Company took inconsistent and contradictory positions. Testified without
frankness. Put lands beyond regulation by checker boarding.

Miningwatch v. Canada [Balance of Convenience]

NGO wanted more comprehensive environmental screening of open mine pit. SCC considers balance of convenience:
disproportionate impact on the parties or the interests of third parties.
 R v. Consolidated Mayburn Mines [Collateral Attack]
Company failed to clean up as ordered, and instead applied for JR as a roundabout to the order. Court finds this to be a collateral
attack. In order to determine legislature’s intent as to appropriate forum, must consider these factors:
1) wording of the statute from which power to issue order derives;
2) purpose of legislation;
3) availability of appeal;
4) nature of collateral attack in light of tribunal’s expertise and raison d’etre;
5) penalty on conviction for failing to comply with the order.
Here, statute’s wording shows legislature’s concern with Agency’s remedial/enforcement powers (which serves as basis of attack).
Specialized tribunal reflects complex & technical questions, which goes to Board’s essential role (therefore JR is inappropriate). A is
seeking to avoid penalties from the order through the attack. Therefore, no JR.

Canada (AG) v TeleZone Inc 2010 SCC

FACT: R application for license reject by Industry Can. R did not seek to overturn admin decision, but bought a related civil action
for damages against AG on a number of grounds. AG asserted action could only be brought following application for JR of the
subject decision
HELD: Allows Collateral Attack. Applying Mayburn factors, Claimant isn’t seeking to avoid penalties of the Order, rather Order
serves as the basis for the Collateral attack. Nature of collateral attack is essential to Claimant’s cause of action & adjudication of
collateral attack is necessary to dispose of the claim.

Money Remedies

Party must initiate separate civil action for damages. To succeed, Party must prove: (1) deliberate & unlawful conduct by public office-
holder; 2) office-holder’s subjective knowledge that conduct was unlawful. Odhavji – Police failed to investigate properly person
being shot. McMaster – Prisoner with large feet wasn’t supplied with shoes in due time.

Alberta v. Elder Advocates [Money Mistakenly Paid]

Class action alleging overcharging of government nursing homes. SCC considers Air Canada v. BC – benefits received by
governments as a result of mistake is recoverable so long as the mistake caused the payment in question. Kingstreet v. NB – taxes
collected on the basis of an ultra vires statute is recoverable where the law is found to be unconstitutional. Court allows Unjust
Enrichment claim to proceed.

Roncarelli v. Duplessis [Abuse of Power]

Minister prevents A from obtaining liquor permit. SCC holds misfeasance in a public office is a recognized tort. Here, Minist er
intended to punish A, which is irrelevant to purposes of the statute. Minister took away right of A from enjoying public priv ilege.
SCC awards damages based on loss of business good-will & loss of profits.

Odhavji Estate v. Woodhouse [Abuse of Power]

Police failed to investigate properly person being shot. SCC outlines action for misfeasance: (1) deliberate & unlawful conduct by
public office-holder (even if failure to act); 2) office-holder’s subjective knowledge that conduct was unlawful. Here, (1) police did
not cooperate with & took deliberate steps to frustrate investigation; (2) police action was intentional & deliberate & was intended to
cause Plaintiffs to suffer physically, emotionally, & psychologically.

Vancouver City v Ward 2010 SCC:

FACT: Vancouver and BC police violated Charter rights of C due to an unreasonable strip search & seizure. TJ awarded
damages for charter breaches
SCC considers “appropriate and just” quantum of damages in light of goals of compensation, vindication, and deterrence.
Countervailing factors include availability of other remedies, concern for effective governance.
HERE, SCC holds damages may be awarded for Charter breaches under s.24(1) for compensation of strip search countervailed
with the lack of other available remedies. Quantum of damages adjusted based on seriousness of the breach, which was short and not
serious. Ultimately, a moderate damages award.