PUBLIC LAW
Introduction
Much of law concerns the private relations between and among
individuals or persons. Persons in law usually include corporations.
However, an important role of law is to confer, validate and
control the power that is conferred by legislators on federal,
provincial, and municipal governments and on other bodies. Such
“other bodies” include the plethora of bodies empowered by
primary legislation to carry out tasks or provide services that
federal or provincial legislators consider beneficial to society.
Examples are the Board of Governors of the University of
Lethbridge, the Workers’ Compensation Board of Alberta, the
Alberta Workers’ Compensation Appeals Tribunal, the Canadian
Human Rights Commission, and the Canada Immigration and
Refugee Board. The powers of such bodies are delegated by
federal or provincial legislation. The delegated powers can be
amended or removed by legislation. Such bodies must operate
intra vires, that is, within not beyond (ultra vires) the power
conferred by legislation. Such bodies are usually referred to as
administrative tribunals.
Power delegated by federal or provincial legislators to other bodies
can take the form of either legislative power, executive power, or
adjudicative power. Primary legislation sometimes empowers such
bodies to enact secondary legislation. For example, the Alberta
Workers’ Compensation Act empowers the Provincial Cabinet to
pass secondary legislation permit the Workers’ Compensation
Board (WCB) to decide who is a worker for purposes of the Act.
This creates secondary legislative power shared by the Cabinet and
the WCB. Secondary legislation has a variety of names, most
commonly called “regulations”.
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Some delegated power is the power to administer the system
created by primary or secondary legislation. For example, the
Alberta WCB is empowered by primary legislation to decide
whether a claimant is eligible for compensation for injuries
sustained in the course of her or his employment. Such
administrative decisions require the WCB to gather facts relevant
to the injury and to interpret relevant primary and secondary
legislation.
Some primary legislation empowers bodies to make quasi-judicial
decisions on disputes arising between members of the public and
administrative bodies that interpret and apply primary and
secondary legislation. For example, the Alberta Workers’
Compensation Appeals Tribunal is empowered by the Workers’
Compensation Act to resolve disputes between the WCB and
workers or employers on matters of entitlement to compensation,
levels of premiums payable and on interpretation of the Act and
secondary regulations. Issues of law and jurisdiction can be further
appealed to the Alberta courts. Where primary legislation provides
no appellate body of the sort discussed above, the courts reserve
the power to judicially review legislative or administrative
decisions to determine whether they are within the power and
jurisdiction of the body making them.
The foregoing discussion describes “the rule of law”, that is, the
legal obligation of bodies or individuals to act within the powers
delegated to them by law. Other bodies with power delegated to
them by legislation are the Canadian Broadcasting Corporation,
(CBC), the Canadian Radio-television and Telecommunications
Commission (CRTC) and the National Energy Board (NEB).
Limits on delegated power
(a)
Administrative Tribunals must operate within their
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jurisdiction. The case summary BCE Nexia Inc. v. Canada
(Commissioner of Corrections) p. 90 illustrates this.
(b)
Tribunals usually have to operate within the bounds of
procedural fairness. This is often referred to as “natural
justice”.
(c)
The courts may overrule a decision of a tribunal if it
makes an error of law.
(d)
Courts may overrule a decision of a tribunal if it abuses its
discretion.
Natural justice
Administrative tribunals, particularly those with adjudicative
powers, are bound by fair procedures required by either the courts
or by legislation. See for example Alberta’s Administrative
Procedures Act, R.S.A. 2000 c. A-3. The rules of natural justice
are:
(a)
(b)
(c)
there is no reasonable apprehension of bias on the
part of the delegate in coming to its decision;
persons affected by the decision have the right to be
heard;
decisions must not be arbitrary, and must be based
on evidence and relevant considerations.
A reasonable apprehension of bias may arise in various
circumstances. If one of the delegated decision-makers stands
to benefit from the decision or action taken, there may be a
reasonable apprehension of bias. Likewise, if the Dean of the
Faculty of Management (GFC) makes a complaint to General
Faculties Council that a student has engaged in plagiarism,
there will be a reasonable apprehension of bias if the Dean sits
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as a member of the GFC Committee (tribunal) that determines
whether plagiarism occurred.
See the Yates text (p.83) Ahumada v. Canada (Minister of
Citizenship and Immigration) [2001] 3 F.C. 605 (C.A.). An
employee (W) of Citizenship and Immigration Canada (CIC)
was on temporary leave of absence. During her leave, she was a
member of a panel of the Convention Refugee Determination
Division (CRDD) of the Immigration and Refugee Board. The
panel denied A’s application for refugee status in Canada. The
Trial Division of the Federal Court quashed the panel’s
decision not to grant status and remitted the matter to another
panel. The Court found there to be a reasonable apprehension
of bias, a decision upheld by the Court of Appeal, which stated
the test for bias in an independent adjudicative tribunal as:
“whether a reasonable person, who is informed of the facts,
viewing the matter realistically and practically…..would think it
more likely than not that the tribunal was biased”.
The Court held a reasonable person would believe that, in her
duties on the panel, W might be influenced in her decision by
her apprehension that she would be rewarded or punished by
her employer (CIC) if she did not conform to its opinion. As
the appeal to the adjudicative tribunal was against the original
decision of the CIC, this was considered a risk of apprehended
bias. Note that the test is not that there is actual bias but an
apprehension of bias on the part of the reasonable person.
Usually a finding of apprehended bias causes the court to remit
the decision back to the decision maker to be decided fairly.
To meet the principle of a fair hearing, an adjudicative body
must typically give the person reasonable notice of the hearing,
an opportunity to read documents relied upon by the original
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decision maker, if the issue is a serious one involving
immigration, property rights, alleged breach of regulations, the
individual will be entitled to have representation by a lawyer
or an agent. He or she is entitled to present their evidence and
argument to the tribunal.
See pp. 91-2, Mikkelsen v. University of Saskatchewan (2000),
191 Sask. R. 53 Q.B. Courts placed student back in first year
without re-enrolment.
Statutory interpretation
See Chieu v. Canada (Minister of Citizenship and Immigration)
[2002] 1 S.C.R. 84 for example of statutory interpretation. (p.
89). Overruling the lower courts, the Supreme Court of
Canada (SCC) held that the phrase in the Immigration Act
“having regard for all the circumstances” required the
administrative tribunal” to consider all the circumstances,
including humanitarian ones, before deciding whether or not
to deport the applicant. The tribunal’s original decision to
deport was remitted to it by the SCC for consideration taking
into account all the circumstances.
See also Roncarelli v. Duplessis (1959) S.C.R. 121 where a
ruling of the Quebec Liquor Licensing Board was judicially
reviewed. (Text pp. 96-99). The SCC rejected the tribunal’s
decision to remove the liquor licence because it took account of
irrelevant considerations in the exercise of its discretion.
SUMMARY OF DUTIES OF ADMINISTRATIVE
TRIBUNALS
1. Do not create apprehension of bias. See Bennet p. 95 of
text.
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2. Provide a fair hearing. Notice, representation, relevant
evidence revealed, hear other’s evidence and argument.
See absent members Doyle p. 94
3. Do not make errors of law.
See Chieu. P.89 Chieu lied about marital status; later applied
to bring wife and child. Rejected due to misrepresentation.
The Immigration Act contained the phrase
“having regard for all the circumstances”. This included the
potential hardship of deportation. In Driedger’s words:
“Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the
intention of Parliament”.
Generally courts are required by the various provincial
Interpretation Acts to interpret federal or provincial
legislation liberally to achieve the purposes of the legislation.
However, if a statute CONFLICTS WITH THE COMMON
LAW, THE COURTS NORMALLY APPLY THE
STATUTE STRICTLY.
4. Use discretion reasonably. Consider only relevant
considerations and ignore irrelevant considerations.
Do not delegate discretion or decline to use it.
See Roncarelli above.
Also, see Oil Sands Hotel (1975 Ltd. v. Alberta (Gaming &
Liquor Commission) (1999), 241 A.R. 45 (Q.B.) where
plebiscites were held in 36 communities about whether VLTs
should be removed from the respective communities. In 5
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communities, a majority of voters favoured removal of VLTs.
When the Commission ordered them removed, the retailers
brought legal action against it, arguing that the plebiscite and
the subsequent removal of the VLTs were ultra vires. The
retailers were successful as the court held that reliance by the
Commission on the results of the plebiscites amounted to its
failure to exercise its own statutory discretion.
5. Do not go beyond your jurisdiction
Do not exercise power or discretion that is not conferred
by statute.
STANDARD OF JUDICIAL REVIEW
The courts adopt a pragmatic and functional approach to
judicial review. This involves awareness of the context of the
issues, the expertise of the tribunal being reviewed, the
presence or absence of a privative clause etc.
Depending on such factors, the courts apply one of three tests:
(i) correctness, (ii) unreasonableness, and (iii) patent
unreasonableness. Text pp. 99-100.
Factors influencing the standard of review. (text p.100).
A Presence or absence of privative clause or appeal
B Expertise relative to court
C Purposes of the legislation
D Nature of the question – law fact or mixture.
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See Dr. Q case where the SCC deferred of the expertise of the
medical tribunal. Also the SCC noted that substantial issues of
fact were relevant to the decision. That is, was the physician’s
conduct sufficient to warrant suspension?
Privative clauses are discussed in the text at p. 102. Such
clauses often seek to exclude the courts from reviewing
decisions of the statutory tribunals. However, it is difficult to
exclude courts completely by way of privative clauses. See the
case Anisminic.
The main remedies of judicial review are the prerogative writs:
Habeas corpus – orders the delivery of an imprisoned person
to court to explain his/her detention.
Certiorari – quashes the decision of the administrative
tribunal; is often accompanied by an order that the tribunal
make a new decision.
Mandamus – orders the tribunal to hear the case or perform
some order of the court.
Prohibition – prohibits the tribunal from doing what it intends
to do or is engaged in doing; for example prohibiting the
tribunal from hearing a case that is outside its jurisdiction.
Declaration is also a potential remedy as is injunction. These
are not prerogative writs but are enforceable. The latter is
limited as it may not be available against the Crown (the
Government).
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