CED Administrative Law V.4.(b).(ii) Page 1
CED Administrative Law V.4.(b).(ii)
Canadian Encyclopedic Digest
Administrative Law
V — Judicial Review of the Scope and Correctness of Decisions
4 — Abuse of Discretionary Power
(b) — Grounds of Review
(ii) — Improper Purposes and Relevant and Irrelevant Considerations
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V.4.(b).(ii)
§482 A statutory decision-maker must not use a discretionary power for an improper purpose[FN1] or take extraneous factors or irrelevant considerations into account,[FN2] but it must consider all relevant factors.[FN3]
Also, a person on whom discretion is conferred cannot surrender or refuse to exercise the discretion or otherwise misapprehend its scope.[FN4]
§483 The fact that a particular decision is influenced by outside pressures does not necessarily invalidate it if the purposes behind taking the decision are otherwise proper.[FN5]
§484
The empowering statute may specify factors which the decision-maker must take into account. A failure to do so is reviewable.[FN6] However, such lists are not necessarily exhaustive. A proper interpretation of the Act may reveal other factors that are relevant in making a particular decision.[FN7] Inferring which factors are relevant or irrelevant from the general purposes and intention of the Act is an exercise that always takes place when the legislation lays down no conditions precedent or relevant criteria for taking particular decisions.[FN8]
There is a tendency towards curial deference to the decision-maker's judgment and to review only if that judgment on what are appropriate considerations is patently unreasonable; but a standard of correctness may govern the relevance of considerations in an appeal on law and jurisdiction.[FN9]
§484.1
A provision of an unimplemented treaty cannot control the exercise of a statutory discretion.[FN10]
§485 The wider the discretion, the more specialized or political the decision at issue, and the greater the indications of legislative trust in the expertise or political accountability of the decision-maker, the greater the tendency towards deference. Thus, the use of open-textured language or the conferral of the discretionary power in terms such as "in its opinion"[FN11], "in its absolute discretion",[FN12] or "all such circumstances as it considers relevant"[FN13] reduces the opportunity for judicial intervention. So too does the conferral of discretion on ministers of the Crown or the Governor in Council,[FN14] or on expert regulatory agencies and tribunals.[FN15] Conversely, the courts are far more inclined to construe strictly the discretionary powers of municipalities and scrutinize their exercises of power for ultra vires and impropriety of purpose.[FN16] Also, a legislative instruction to have regard to "the public interest" does not entitle a statutory authority to exercise its powers by reference to whatever considerations it deems to be matters of public interest; the objects and purposes of the empowering legislation circumscribe the scope of what constitutes a relevant public interest.[FN17]
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CED Administrative Law V.4.(b).(ii) Page 4
(2d) 245n; Thompson v. Canada (Minister of Citizenship & Immigration) (1996), 41 Admin. L.R. (2d) 10
(Fed. T.D.) (courts intervening if decision-maker erring in law, including having no evidence to support opinion, acting on some wrong or improper principle or acting in bad faith).
FN12.
Logan v. Canada (National Parole Board) (1992), 8 Admin. L.R. (2d) 273 (Fed. T.D.); Carpenter
Fishing Corp. v. Canada
General)
(1997), [1998] 2 F.C. 548 (Fed. C.A.); but see Matthews v. Canada (Attorney
(1996), 43 Admin. L.R. (2d) 143 (Fed. T.D.) (minister cannot use authority to renew license to impose terms punishing licensee for past violations).
FN13.
Sheehan v. Ontario (Criminal Injuries Compensation Board) (1975), 52 D.L.R. (3d) 728 (Ont.
C.A.); leave to appeal to S.C.C. refused (1975), 52 D.L.R. (3d) 728n (S.C.C.).
FN14.
National Anti-Poverty Organization v. Canada (Attorney General) (1989), 36 Admin. L.R. 197
(Fed. C.A.) (providing some support for proposition that in an appeal to Cabinet, the Governor in Council entitled to consider factors that would be irrelevant or improper for regulatory agency appealed from); see also Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 36 O.R.
(3d) 41 (Ont. Div. Ct.); leave to appeal refused (1997), 36 O.R. (3d) 41n (Ont. C.A.) (commission enjoying broad discretion and exercising Minister of Health's normal powers; commission falling at "extreme political/legislative end of the [decision-making] spectrum").
FN15.
Canada (Attorney General) v. Burnell (1997), 2 Admin. L.R. (3d) 285 (Fed. T.D.) (discretion of human rights commission "as [it] considers appropriate" to accept complaint outside normal time limits entitled to deference); Morlacci v. British Columbia (Minister of Energy, Mines & Petroleum Resources)
(1997), 2 Admin. L.R. (3d) 242 (B.C. C.A.) (discretion of government inspectors to issue gravel pit and rock quarry permits entitled to significant deference).
FN16.
Shell Canada Products Ltd. v. Vancouver (City) , [1994] 1 S.C.R. 231; but see MacPump Developments Ltd. v. Sarnia (City) (1994), 28 Admin. L.R. (2d) 127; supplemented (January 19, 1995), Doc. CA
C16439 (Ont. C.A.).
FN17.
Lindsay v. Manitoba (Motor Transport Board) (1989), 62 D.L.R. (4th) 615 (Man. C.A.); leave to appeal refused (1990), 39 Admin. L.R. xxxviii (S.C.C.); Trinity Western University v. College of Teachers
(British Columbia) (1997), 2 Admin. L.R. (3d) 12 (B.C. S.C.).
FN18.
Warne v. Nova Scotia (1969), 1 N.S.R. (2d) 150 (T.D.); Achong v. College of Physicians & Surgeons (British Columbia) (1997), 1 Admin. L.R. (3d) 213 (B.C. S.C.); reversed on other grounds (1997),
48 Admin. L.R. (2d) 161 (B.C. C.A.) (where dominant purpose proper, no review if also acting for improper purpose, at least when clear that result same in any event); see also National Anti-Poverty Organization v. Canada (Attorney General) refused (1989), 105 N.R. 160 (S.C.C.); B.C.N.U. v. British Columbia (Compensation Stabilization Commissioner)
(1989), 36 Admin. L.R. 197 (Fed. C.A.); leave to appeal to S.C.C.
(1983), 2 Admin. L.R. 305 (B.C.S.C.).
FN19.
Active Trading v. New Westminster (City) , [1974] 5 W.W.R. 354 (B.C.S.C.); reversed in part on other grounds [1975] 3 W.W.R. 73 (C.A.) ("dominant motives" in case apparently argued on basis of extraneous considerations); DiNardo v. Ontario (Liquor Licence Board) (1974), 5 O.R. (2d) 124 (H.C.)
(sufficient if some irrelevant factors influential; presence of one relevant consideration not affecting review).
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