Admin law about government exercising statutory authority
Typically challenged on three grounds:
- illegality, unconstitutional
- Procedural grounds (i.e., breach of procedural fairness rules)
- Substantive grounds (i.e., decision itself wrong/incorrect or unreasonable)
Sources of procedural fairness
- Statutes, regulations, polices/procedures
- General procedural statutes, e.g., APJA
- Charter, Bills of Rights
- Common law
Procedural Fairness:
Thresholds: What is the threshold for acquiring procedural fairness rights in an administrative
process?
Threshold question: Is the person/entity affected by a state decision entitled to procedural
fairness?
Said another way: Does the decision maker owe the person affected a duty of fairness?
Historically, natural justice/procedural fairness rights triggered only in judicial or quasi-judicial
decisions
Decision maker had authority to determine individual rights and duty to act in a judicial
manner
Whole categories of decisions fell below that threshold:
Administrative, ministerial, legislative, preliminary (not final), relating to privileges (e.g.,
entitlement to benefits) rather than rights
Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311
general duty of fairness now applies to administrative decisions in addition to QJ
decisions.
Threshold: (1) administrative decision and (2) serious consequences to those
affected
Threshold no longer just concerned with the nature of the decision, but also the
consequences to person affected.
Does that mean that procedural fairness applies to all types of governing decisions that impose
serious consequences?
In other words, what is the contemporary threshold for triggering a DOF on decision makers?
Martineau v. Matsqui Institution, [1980] 1 SCR 602
What happened?
Internal penitentiary disciplinary board punished Martineau for behaviour in prison by
sentencing him to 15 days in solitary confinement. Martineau claimed various PF breaches
in decision making process including that neither he nor his counsel was present while a
key witness gave evidence to the Board.
- Being sentenced to solitary confinement is considered a loss of residual liberty
How did the decision progress through the Courts?
Judicial review, seeking certiorari (i.e., quashing decision below), in Federal Court of
Canada (Trial Division) held that DoF applied to decision  Board appealed to Fed CA who
overturned and held no DoF  Martineau appealed to SCC
What statutory regime was at issue?
Federal Penitentiary Act governed solitary confinement decision but really at issue was
the Federal Court Act  interaction between ss18 and 28 previously interpreted to mean
that admin remedies like certiorari were available only for quasi-judicial functions.
What was the issue?
Difficult to classify this decision quasi-judicial decision It is an administrative decision (i.e.,
taken day to day to keep the prison running).
The questions were whether judicial review would be available to enforce procedural
fairness rights of non-QJ decisions from federal boards and tribunals  Are there any
procedural protections for these types of decisions?
If the courts can’t review it, then the courts can’t enforce a duty of fairness in those decisions
-
Yes – Dickson (writing for 3 colleagues in a concurring judgment): “The rule of law must run
within penitentiary walls”
o i.e., language is section 28 was not sufficient to oust court’s authority to subject federal
admin decisions to judicial review, including review of procedural fairness complaints
-
Threshold: duty of fairness applies to “any public body with the power to decide any matter
affecting the rights, interests, property, privileges or liberties of any person”
o Pretty much describes any interest a person may have – significant expansion of threshold,
focusing on impact of decision (BROADENS SCOPE)
o But there is still a role of the nature of the decision.
-
“A purely ministerial decision, on broad grounds of public policy, will typically afford the
individual no procedural protection … Similarly, public bodies exercising legislative functions
may not be amenable to judicial supervision. On the other hand, a function that approaches
the judicial end of the spectrum will entail substantial procedural safeguards. Between the
judicial decisions and those which are discretionary and policy-oriented will be found a
myriad decision-making processes with a flexible gradation of procedural fairness through
the administrative spectrum.”
o (We hear the word spectrum for the first time…keep in mind, this is dicta.)
-
Duty of fairness will not apply to “merely trivial” decisions.
-
Threshold after Martineau:
o duty of Fairness applies to non-trivial small ‘a’ admin decisions and QJ decisions (content
of rights will vary) that impact a person’ rights, interests, etc, but quasi-leg and policy, likely
not, though not clear.
-
Dickson: no need to distinguish between natural justice and procedural fairness – they are
conceptually similar. Required procedural protections will vary based on circumstances.
-
“In the final analysis, the simple question to be answered is this: Did the tribunal on the facts
of the particular case act fairly toward the person claiming to be aggrieved? It seems to me
that this is the underlying question which the courts have sought to answer in all the cases
dealing with natural justice and with fairness.”
Cardinal v. Director of Kent Institution, [1985] 2 SCR 643
- SCC gets pithier and more concise:
o “This Court has affirmed that there is, as a general common law principle, a duty of
procedural fairness lying on every public authority making an administrative decision
which is not of a legislative nature and which affects the rights, privileges or interests of
an individual”
- Threshold: DoF applies where (1) Administrative decision that is ‘not of a legislative nature’
and (2) affects the rights, privileges or interests of an individual.
o Big A Administrative law decision in the sense that it’s a decision made by a delegate
exercising state authority – a public entity.
 includes small ‘a’ admin, QJ, maybe some quasi-leg and policy-ish decisions (unclear)
Knight v. Indian Head S.D. (SCC, 1990, 4-3)
- Facts: A Director of Education was fired by the local School Board after negotiations between
the Board and the Director’s counsel over a new contract failed.
- Statutory office holder (i.e., job position created by statute)
o office holder at pleasure, which meant he could be terminated without notice and for any
reason, had not previously received procedural protections in the event of termination.
- Threshold Issue: Was he entitled to some degree of procedural fairness?
Legislative exception: pure Legislative Decisions
- No duty of fairness in pure legislative decisions made by parliament or legislatures
Wells v Newfoundland, [1999] 3 SCR 199
- Provincial Legislature enacted new legislation that eliminated Mr. Wells’ position on the
Public Utilities Board as part of restructuring. Wells sought JR and argued a breach of DOF.
- ANSWER: Purely legislative decision making is not subject to any duty of fairness
-
-
Is the decision legislative?
o Yes – but in less clear cut cases look to the factors that distinguish decisions
Although impact was singular; it was not a personal matter but a legislative policy choice
Legislature’s policy decisions subject only to review by the electorate
Only procedural requirements are those of the legislature (e.g., 3 readings and a vote of
MLAs)
Court’s constitutional role to review legislation and admin decisions arises after legislation is
passed; it does not step in to review legislative procedure
Legislative exception: Cabinet and Cabinet appeals
Inuit Tapirisat [1980] 2 SCR 735
- Under National Transportation Act, CRTC had power to regulate utilities rates, including those
of Bell Canada. Appeal lay from CRTC rate decision to Cabinet:
o APPEAL PROVISION FROM THE ACT =
o 64. (1) The Governor in Council (i.e., cabinet) may at any time, in his discretion, either upon
petition of any party, person or company interested, or of his own motion, and with-out
any petition or application, vary or rescind any order, decision, rule or regulation of the
[CRTC], whether such order or decision is made inter partes or otherwise, and whether
such regulation is general or limited in its scope and application; and any order that the
Governor in Council may make with respect thereto is binding upon the Commission and
upon all parties.
o What is striking about the wording delegating this authority to cabinet?
o A: Very broad, grants a lot of discretion. Basically, any time under any circumstance. Which
allows cabinet to overrule anything the CRTC does.
-
-
The Inuit Tapirisat intervened before CRTC on Bell’s application for a rate increase – wanted
rate increase to include requirement for infrastructure improvements in northern
communities. After unfavourable decision, they appealed to Cabinet.
CRTC made submissions, as did Bell and the department (providing its opinion on appeal;
Inuit Tapirisat only given Bell’s material.
Appealed to Federal Court arguing it should have received full hearing and that process did
not comply with NJ/PF.
Issue: No statutory procedure, but was there a common law duty of fairness owed?
Decision: This is a legislative decision (i.e. policy) as opposed to a judicial or administrative, to
which duty of fairness does not apply
Legislative or quasi-legislative decisions:
- They’re broad – impacting a large number of people
- Discretionary in nature – not rule bound or bound by principle
- Prospective – looking to the future. What you will pay not what you are paying
- Policy oriented
-
Political in nature
Broad wording of 64(1) delegated these legislative considerations to Cabinet in this instance,
which by virtue of its ministerial membership, is concerned with the policy implication – political,
economic, commercial etc.  Essentially delegating its legislative/quasi-legislative function to
cabinet
Likely delegated to cabinet because Parliament believed these are sensitive decisions subject to
changing public policy concerns and wanted cabinet members to be able to respond to the
political, economic and social concerns of the moment.
Justice Estey, for the Court, goes on to say: ‘this is legislative action in its purest form’
- Which is an overstatement: purest form would be legislators voting on a law, not cabinet
making a decision behind closed doors.
Court also notes practical problems associated with duty of fairness in legislative decision making
– e.g., Notice
Does not mean all cabinet decisions shielded from review; only legislative/quasi legislative
Legislative/Quasi -Legislative:
After Nicholson, Martineau, Inuit Tapirsat
- Legislative/quasi-legislative decisions = no duty of fairness
- Admin decisions = duty of fairness
- Quasi-judicial = duty of fairness/natural justice
Exception to Inuit Tapirsat:
- Decisions of legislative nature: Bylaws/rulemaking
Homex Realty v Wyoming [1980] 2 SCR 1011
- Dealt with a bylaw passed by municipality re subdivision planning. Seems purely legislative so
no duty of fairness should apply.
- Why did the SCC find that a duty of fairness applied and what distinguished the majority and
minority reasons?
Decisions of legislative nature: Policy making
Not purely legislative, but of general impact (think Knight “legislative and general” – no DoF)
-
As such, broad based policy decisions (diffuse impact, impacting large spectrum of public in
non-specific manner) do not usually attract duty of fairness, but sometimes difficult to
determine where to draw the line.
o Sea Shephard Conservation Authority v The Queen (1984): no DoF arising from decision to
initiate wolf kill program.
o Sierra Club of Western Canada v The Queen (1984): no DoF re decision to grant lumber
permits.
o Elliot (1998, NFCA): decision to close school was administrative decision subject to DoF.
-
-
When will policy decisions attract a duty of fairness?
Look to the decision factors of the decisions; the political nature of it, how broad, exam q:
that yes, most decisions attract a duty of fairness, but some are more questionable and what
factors you have to look at behind the terms
Will fairness apply to an applicant with more directly impacted by policy?
Canadian Association of Regulated Importers [1993] 3 FC 199 (TD), rev’d [1994] 2 FCR 247 (CA)
What was the decision under review?
- Minister’s discretionary decision to alter quota system for importing eggs and chicks; the
decision negatively affected historical importers, who challenged the decision.
Under what legislation was the decision made?
- Export and Imports Permits Act,
Issue: does DoF apply to this decision, which looks like a policy decision?
What did Justice Reed (TD) decide?
What did FCA decide?
Whose reasoning was more convincing to you?
Canadian Association of Regulated Importers
J Reed applied DoF
- Not a general policy decision impacting large number of persons; new regulations govern
specific discrete subset of population (<100 affected), many of whom will suffer considerable
economic loss DUE TO THE IMPACT ON A SMALL GROUP IT CALLS FOR DoF
-
Classifying decision as leg/policy unhelpful; what’s important is impact on those affected
Some sort of notice and opportunity to provide representations was required (i.e., low level
DoF)
J Linden, on Court of Appeal, rejected DoF
- Quota decision was classic policy decision based on political/economic concerns; whenever
regulating a market some winners/some losers; remedy is political not legal.
- Court will not impose consultation process not contemplated by legislation; may be wise for
the minister to consult, but no legal procedural fairness requirement to consult on a pure
policy matter.
BOTH JUDGES DIFFER, LINDEN COOL
Decisions on rights, privileges, or interests: Application for benefit
Hutfiled v Board of Fort Sask. General Hospital (1986, ABQB)
- Application for hospital privileges approved by College but denied by hospital board without
reasons
- Second application again rejected after Hutfield denied opportunity to appear while board
considered it. Application again refused and board again refused to give reasons.
What did the Court decide and why?
- No principled reasons for denying DoF in application for a benefit
o DoF runs not only for denial of rights but for interests
Reasons why DoF applied
- Hutfield clearly had an interest in the decision
- Bylaws required appointments committee to investigate credentials, training, suitability,
experience and references, which must form basis of Board’s rejection
o Where rejection casts slur on reputation/financial stability, DoF may require hearing
o Decision impairs Hutfield’s ability to practice his profession
- Board had duty to give reasons for denial.
- Maybe justifiable where so many applicants, it’s basically a lottery and no better way of
making decision. But what about where statute imposes conditions, criteria? Surely failing to
follow criteria would be breach of process. Question is what amount of PF not whether it
applies at all.
Decision on rights, privileges, or interests: Investigation, Recommendations:
DoF when dealing with decisions/process that are not final:
Re Abel and Advisory Review Board (1979, ONCA)
- ARB is the experts that review all mental health patient’s confinement annually and prepares
reports and recommendation to LG.
- ARB can make inquiry or hold ‘in camera’ hearing which patients (lawyers) can attend.
Reports may play important role in LG decision.
o Lawyer for patient made request of disclosure of reports, which was denied because Board
concluded it did not have jurisdiction; sought judicial review.
-
Court: Patients are entitled to PF;
o Records, or their substance, must be disclosed
o Traditional rule that DoF cannot apply to recommendation only not helpful. Functional test
appropriate
 Proximity between investigation and decision and impact to individual
o Important decisions, which go to liberty, may be made solely based on undisclosed report
o Board had jurisdiction to consider requirements of DoF; in failing to consider disclosure of
reports, it breached that DoF
Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111
- Nurse refused to cooperate with College’s investigation of disciplinary allegations
o Argued he needed detailed disclosure of complaints and failure to provide breached DoF
- College filed additional charges re failure to cooperate and eventually suspended him for 4
months  Kuny appealed and argued failure to provide fulsome disclosure in investigation
violated DoF.
-
Does DoF apply to investigations that only lead to recommendations or referrals to
subsequent hearings?
o Court: DOF applies to investigations because it is a non-legislative process but, generally,
content is minimal
o opportunity to know substance (not full disclosure) of allegations and respond.
Note: Court distinguishes between hearing and investigatory stages and DoF at each
Threshold CONTD
Threshold question: is person/entity entitled to procedural fairness rights?
- Contemporary threshold
- Is it a non-legislative, Administrative decision (incl. small ‘a’ administrative, quasi-judicial,
-
Does it have an important (i.e., non-trivial) impact on person’s rights, interests, privileges,
property, etc.?
See e.g., Nicholson, Martineau, Knight, Mavi, Baker, etc.
Developing our approach to admin law questions:
1. Are we dealing with an administrative law issue (i.e., exercise of state authority – Highwood
v Wall)?
2. Does it appear the impugned action/decision is authorized by constitutionally valid statute
(concern of constitutional law but whether statute authorizes action/decision is admin law
concern)?
3. Was the action taken in procedurally fair manner?
4. Was the action/decision substantively correct or reasonable?
5. What’s the appropriate remedy and should the court exercise its discretion to grant it?
Was the action taken in procedurally fair manner?
What’s our first question?
1. Does the duty of fairness apply to the impugned action or decision?
i.e., Threshold test: is it a non-legislative decision with a non-trivial impact on a person’s rights,
interests, privileges, etc.
Complete discussion of thresholds
- What happens when the threshold has not been met but statutory delegate promised
procedural rights?
o Will they be held to that promise to fulfill a person’s “legitimate expectation”?
- Are fair procedures required during an emergency?
- Charter threshold: when will section 7 step in to provide procedural rights?
Threshold: Doctrine of Legitimate Expectations
The doctrine refers to a promise, via words or regular practice, from a government official/agency
that gives rise to a legitimate expectation on the part of a person subject to decision-making
Similar to “promissory estoppel” and, unsurprisingly, owes its origins to Lord Denning
-
Example A: “I can assure you that if you submit the following document, you will get your
license.” (i.e., promise of substantive outcome)
Example B: “I assure you that once we receive the complaint in writing, we will send you a
copy and give you a chance to meet with the Director and explain your side of the story.” (i.e.,
promise of procedure to be followed)
Is there a problem with adopting a legal rule that says an expectation of a substantive outcome
will be enforced by the courts?
What if, in example A, the person making the promise is not the decision-maker?
- What if the person has made a mistake, and in addition to the requested document, the
person concerned must prove some other fact in order to get a license (e.g., they have no
criminal record)?
The LE doctrine was once seen as a possible basis for extending procedural fairness into
‘legislative’ decision-making, which the threshold test prevents.
- i.e., if an official promised that before a new regulations were passed, the government would
consult with those affected – it was thought LE would enforce that procedural promise even
though duty of fairness would not otherwise apply.
Council of Civil Services Unions ( H.L.) (1985)
At issue, Government Communications Headquarters (i.e., signals intelligence) employees had
longed belonged to unions. Well-established practice that any change to important employment
conditions were preceded by consultations between the parties. After dispute and without
consultations, Minister passed an order that employees could no longer belong to union
- This decision (i.e., a Minister’s power to give binding “instructions” concerning terms of civil
service employment) likely viewed as quasi-legislative in Canada  similar to order passed
by Cabinet in Inuit Tapirisat case, which did not pass threshold test.
House of Lords: Even where a person has no procedural right, the courts may enforce a
“legitimate expectation” of procedure on the basis either of an express promise, or of an
established practice.
- But for national security concerns, in this case, the employees’ legitimate expectation would
have been enforced.
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170.
Sopinka, J: “The principle developed in these cases is simply an extension of the rules of natural justice
and procedural fairness. It affords a party affected by the decision of a public official an opportunity to
make representations in circumstances in which there otherwise would be no such opportunity. The court
supplies the omission where, based on the conduct of the public official, a party has been led to believe
that his or her rights would not be affected without consultation.”
- Court did not find an LE because of detailed statutory procedural scheme (i.e., no room for additional
process)
Doctrine of legitimate expectations: Legislative Decisions
Reference re Canada Assistance Plan [1991] 2 SCR 525
-
Clarity by the court
BC government argued it had a legitimate expectation that the federal government would seek its consent
before altering the CAP Canada Assistance Plan agreement (A federal statute that authorized the federal
government to enter into agreements with the provinces to share the costs of social assistance and
welfare programs: healthcare, EI. These agreements are to continue in force as long as the provincial
programs are in place.)
- i.e., its consent was needed for before Feds could pass legislation – essentially a veto. Problem?
Federal Government without consultation, introduced a Bill, limiting the federal governments financial
contributions to an amount below that was agreed to prior in the CAP. It was all done unilaterally. BC
referred two Qs up to its CoAppeal.
1. Whether the Federal GOV had any authority to limit its obligation under the plan, under the terms of
the agreement with BC
2. Whether the Federal GOV gave rise to a legitimate expectation that the GOV-of-the-day wouldn’t
actually introduce a Bill into Parliament to limit its obligation under CAP, unless they had the consent
of BC and the other provinces?
- Does the agreement, and the GOV’s actions create a legitimate expectation that we would be
consulted before they would introduce legislation into Parliament.
o Essentially putting a procedural protection in place for provinces preventing the Federal
Government from introducing legislation.
o Brings up constitutional concerns, because Parliament is SUPREME
o ARGUMENT FAILED
the legitimate expectations argument failed on two grounds:
(1) the doctrine of legitimate expectation is a procedural fairness doctrine; it does not create
substantive rights (i.e., the right to a particular outcome), in this case the substantive right
to veto proposed federal legislation
- “It is a part of the law of procedural fairness which...govern[s] administrative bodies”
-
At most, it may provide additional procedural rights on the basis of a promise or a practice, but…
(2) rules of procedural fairness do not apply to “a body exercising purely legislative functions”
(i.e., legislative decision) or ministerial decisions, based on broad grounds of public policy 
a legitimate expectation will not imply procedural fairness into the legislative process
Sopinka concerned with the courts interfering in the legislative process and fettering parliament’s
discretion by inserting additional procedural rights into legislative process
- Constraining government of the day from introducing leg to parliament would be the same
as constraining legislature itself
After CAP, the LE doctrine
- Is purely procedural and will not create substantive rights
- will not imply procedural fairness rights into “purely legislative decisions” and ministerial
decisions that are based on broad grounds of public policy, where the duty of fairness does
not apply
- it appears to be available only for Administrative (i.e., small ‘a’ admin and quasi-judicial)
decisions, to enhance, based on a promise or practice, the procedures otherwise available
What about other types of decisions to which duty of fairness does not usually apply?
Doctrine of legitimate expectations: Quasi-leg/policy Decisions
Apotex Inc v Canada (Attorney General) [2000] 4 FCA 264
Apotex (generic drug manufacturer) had applied for permission under the Patent Act to
manufacture a generic version of an antibiotic. Before it received permission, cabinet passed new
regs under the act that allowed the drugs patent holder to seek an order prohibiting the minister
from granting such permission.
- Minister responsible for the patent act had promised, in a letter to the industry, that they
would be consulted before any new regs along these lines.
Apotex challenged the validity of the regs on JR, arguing that the ministers promise created a LE
of consultation prior to adoption of new regs.
FCA unanimously dismissed the appeal, holding that the minister’s promise could not bind
cabinet, which was the body to whom the legislation had delegated regulation making authority.
Moreover, relying on CAP, the majority noted that the courts should be reluctant to fetter
cabinet’s discretion by holding it to promises before exercising its regulation making authority.
However, in obiter concurring comments, Evans said that while the doctrine of LE could not be
used to overturn regulations already made by cabinet, it could have been used to prevent the
minister who made the promise from taking them to cabinet in the first place.
Evans, JA in obiter concurring comments:
- Distinguished CAP: that was Parliament’s primary legislative authority; this is delegated
legislative authority and, therefore, no constitutional issues arise
- LE doctrine not only a branch of the duty of fairness, but it can also supply process rights
where necessary to prevent procedural arbitrariness (i.e., variation from past practice) and
expectation gov’t will abide by its promises.
- However, more about individual justice than good governance – i.e., if gov’t makes a promise
to an individual or defined group, they should be held to it.
Evans, JA in dissent
- “I conclude that the doctrine of legitimate expectations applies in principle to delegated
legislative powers so as to create participatory rights when none would otherwise arise”
Appeal still dismissed as cabinet was unaware of minister’s promise when they enacted new regs
Settled law that DoF does not apply to exercises of legislative authority and regs were an exercise
of legislative authority
Compelling argument, but it’s a dissent – not the law of the land
- Note: in Mount Sinai (2001, SCC), Binnie in concurrence (with McLachlin) noted that the scope
of the Canada Assistance Plan legislative exception to the application of LE is yet to be
resolved.
Doctrine of Legitimate Expectations
Canada v Mavi, 2011 SCC 30
Relevant statutory provisions:
-
Section 145 of IRPA: “an amount that a sponsor is required to pay under the terms of an
undertaking is payable on demand to [the federal and provincial gov’t] and may be recovered
by [either of those governments]”
Mavi and others sponsored relatives for PR in Canada. They were required to sign an undertaking
to reimburse the fed or provincial gov’t for costs of any social assistance received by their
relatives during a certain period. Ontario brought an action in debt to recover monies. Sponsors
argued that Ontario owed them procedural fairness, in particular notice of intention to collect
and opp to make reps re whether debt should be waived or deferred due to financial circs. AG
argued that statute imposed duty on crown to collect outstanding debts in full and in carrying
out this statutory duty, they owed no PF.
Undertakings:
I understand that all social assistance paid to the sponsored person or his or her family members
becomes a debt owed by me to Her Majesty in right of Canada and Her Majesty in right of the
province concerned. As a result, the Minister and the province concerned have a right to take
enforcement action against me (as sponsor or co-signer) alone, or against both of us.
The Minister and the province concerned may choose not to take enforcement action to recover
money from me if the default is the result of abuse or in other circumstances. The decision not
to act at a particular time does not cancel the debt. The Minister and the province concerned
may recover the debt when circumstances have changed. [Emphasis added.]
SCC MOST RECENT STATEMENTS ON LE:
Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36
Agraira, a citizen of Libya, had been residing in Canada continuously since 1997, despite having
been found to be inadmissible on security grounds in 2002. The finding of inadmissibility was
based on his membership in the Libyan National Salvation Front (“LNSF”) — a terrorist
organization according to Citizenship and Immigration Canada (“CIC”).
Agraira applied in 2002 under s. 34(2) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (“IRPA”), for ministerial relief from the determination of inadmissibility, but his application
was denied in 2009. The Minister of Public Safety and Emergency Preparedness (“Minister”)
concluded that it was not in the national interest to admit individuals who have had sustained
contact with known terrorist and/or terrorist-connected organizations. The minister’s decision
exclusively focused on public safety grounds. Agraira’s application for permanent residence was
denied.
Agraira had married a Canadian Citizen in 1999, with whom he had 2 children, and ran his own
transport business.
What is the admin process leading to decision?
- Entered Canada on false passport in 1997.
- Application for convention refugee status under IRPA denied in 1999.
- Applied for PR status under IRPA in 1999
-
In 2002, under section 34 of IRPA, deemed inadmissible because of involvement with the
LNSF.
-
Applied for exemption under section 35(2), which allows minister to grant exemption if, in
minister’s opinion, presence in Canada not detrimental to national interest
- “National Interest” is an undefined term in the IRPA  discretionary determination for the
minister to make
o but department published detailed guidelines about how the term is to be interpreted
and applied, including relevant factors to consider  e.g., public safety, humanitarian and
compassionate grounds.
- Minister denied request because LNSF involvement posed unacceptable public safety risk.
The Guidelines
1. Following the receipt of an application for relief, the CIC officer provides the applicant with a
copy of the “National Interest Information Sheet”. The applicant is given 15 days to send his
or her submission to the local CIC office.
2. Upon receipt of the applicant’s submission, the CIC officer prepares a report which discusses
the current situation regarding the applicant’s ground for inadmissibility, the details of the
applicant’s application for relief, and any personal or exceptional circumstances of the
applicant that should be considered.
3. The CIC report is forwarded to the National Security Division, Intelligence Directorate, CBSA,
along with the applicant’s submission and all supporting documents. The CBSA may conduct
further investigations at this stage.
4. The CBSA analyst prepares a recommendation to the Minister, which includes all supporting
documentation.
5. A copy of the recommendation to the Minister is disclosed to the applicant, who may then
make additional submissions or provide additional documents in response.
6. The applicant’s original submission and its supporting documentation, the CIC officer’s
report, the CBSA’s recommendation, and any additional submissions or documents received
from the applicant in response to that recommendation are all forwarded to the Minister.
7. The Minister renders a decision on the application. The decision is entirely within the
Minister’s discretion.
8. If the decision is negative, CIC issues a refusal letter to the applicant.
You may be exempted from this ground of inadmissibility if the Minister decides that your
presence in Canada would not be detrimental to Canada’s national interest. The consideration of
national interest involves the assessment and balancing of all factors pertaining to your
admission to Canada … as well as Canada’s domestic and international interests and obligations.
If you wish to be considered for this exemption, you must prepare a submission along with any
supporting documentation that you deem relevant. To assist you in preparing your submission,
it is suggested that you address the following:
-
Why are you seeking admission to Canada?
Are there any special circumstances surrounding your application?
-
Provide evidence that you do not constitute a danger to the public.
Explain current activities you are involved in (employment, education, family situation, involvement in the
community, etc.).
-
If the ground of inadmissibility involves membership in a regime or organization, explain the purpose of the
organization, your role in the organization and activities in which you were involved. You must provide extensive
detail and be very thorough in explaining this, including dates, locations and impact of these activities. When
and for how long were you a member? Did these activities involve violence? If you are claiming to no longer be
a member of this regime or organization, you must provide evidence. Explain when and why you disassociated
yourself from the regime/organization and whether you are still involved with persons who are members of the
regime/organization.
What is the admin process leading to decision, cont…
- On judicial review, federal court quashed minister’s decision  minister took overly narrow
view of “national interest” to equal only public safety/national security
minister breached that LE
- FedCAppeal overturned decision on appeal.
What did the SCC decide?
- Guidelines created an LE that their detailed process would be followed. Essentially created a
procedural code (p 166).
- Procedure was followed, including consideration of H&C factors, which were before the
Minister, when determining national interest.
A legitimate expectation will increase the scope of procedures required by the DoF
- If a gov’t decision maker has made representations about the procedure it will follow in
making a decision, or it has consistently followed certain procedural practices in the past
making that decision, the scope of the DOF will be broader and it will likely be held to those
even if the duty of fairness otherwise would not have required them
Promise of a substantive outcome = more onerous duty of fairness owed (i.e., more procedures)
before contrary decision can be made  needed to explain why substantive outcome not met
- However, promise of substantive outcome cannot create substantive right to that outcome.
Doctrine of Legitimate Expectations
Where does that all leave us on the Doctrine of Legitimate Expectations?
- Cannot create substantive rights (CAP, Mavi, Mount Sinai)
- A court will require process rights beyond those otherwise provided by the DoF where a
public official, acting within their scope of authority make a clear, unambiguous, and
unqualified representation about the process to be followed or about the substantive
outcome i.e., it will potentially increase the contents of procedural fairness rights to include those promised
- But is it a true threshold issue? Will it create procedural rights where none would exist under
DoF analysis?
o Definitely not in purely legislative matters (CAP)
o But what about other areas in which the DoF does not traditionally apply such as delegated
legislative matters, policy questions, etc.?
CAP and majority in Apotex tell us no
*BUT* SCC in St. Boniface and Mount Sinai suggest that the scope of the legislative exception not
settled – there’s a pretty strong argument along the lines of Evans’ dissent in Apotex.
Thresholds: Emergencies
Emergency situation may justify denial of procedural fairness rights
The Queen v Randolph, 1966 SCR 260
- Mail services removed from an individual without hearing where it was believed those
services were to be used for criminal purposes
Key: interim order open to reassessment at a later hearing
Threshold: Whose fault is required?
Can procedural fairness rights be breached by someone other than the decision maker?
- Intervention of external agents
e.g., Notices sent do not arrive; lawyers incompetence
Al-Mehdawi v Secretary of State (1990, HL)
- Solicitor misaddressed letter
- Deportation order issued in client’s absence
- Absence of fault on decision maker – no breach of PF
Shirwa v Minister of Employment and Immigration [1994] 2 FC 51
- Total incompetence of applicant’s representation at immigration hearing
- Reviewable breach of procedural fairness
Threshold: Charter and Canadian Bill of Rights
Necessary to resort to constitutional or quasi-constitutional argument for procedural fairness in
3 circumstances:
-
Legislation expressly or by implication denies common law procedural rights
o no room for common law duty of fairness
- Where CL duty of PF unlikely to apply
o e.g., legislation/policy function (Canadian Importers)
- Where circumstances mandate higher level of procedural fairness through constitutional enactment
than provided through the common law
o Unclear how often this will happen
Applicability: Canadian Bill of Rights
- Laws of Canada (i.e., federal laws not provincial), including orders, regs, rules, etc.
o Encompasses actions and decisions taken under those laws but does not include actions
of bodies created under facilitative legislation (e.g,. Canada Bus Corp Act)
Applicability: Charter
- Parliament, the government of Canada, the legislatures and government of the
provinces/territories
- In admin law, Charter applies to bodies and activities that fall within concept of ‘government’
o Difficult to determine (constitutional law issue): some bodies may not be government for
many purposes, while carrying out government functions for others (e.g., universities,
hospitals, professional regulatory bodies)
o not our main concern  we need to understand when the Charter will apply to procedural
issues in admin law
Canadian Bill of Rights, ss 1(A) and 2(E)
- 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 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of
Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and
applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or
infringement of any of the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as to
o e) deprive a person of the right to a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations;
Threshold: Charter:
Objectives
(1) Identify circumstances when Section 7 threshold met – i.e., life, liberty and SOP are implicated
(2) Understand the process rights associated with PFJs
(3) Understand how you’d go about addressing a section 7 problem
Section 7 of the Charter: “Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles of fundamental
justice.”
Section 1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be reasonably justified in
a free and democratic society.”
- SCC has said it will be a rare occasions that s.1 will save a s.7 violation.
Section 7: The SCC decided in an early section case, Re S. 94 of the B.C. Motor Vehicle Act, that
section 7 went to substantive as well as procedural justice. However, the particular significance
of section 7 for administrative law is its procedural aspect: it can be the basis for constitutional
scrutiny of statutory denials of procedural fairness (process rights).
Singh v Canada [1985] 1 SCR 177
Background and decision:
- Appellants application for convention refugee status under the Immigration Act was denied
by Minister. They applied to the Immigration Appeal Board (IAB) for a redetermination.
-
The IAB denied the appellants an oral hearing after concluding that there was no reasonable
basis for believing they could establish their claims at an oral hearing.
Appellants appealed the IAB ruling to the FCA and then to the SCC, alleging that Immigration
Act scheme for determining convention refugee status violated section 7 of the Charter.
Although the SCC was unanimous in result, 3 Justices took Charter approach and 3 took CBR
approach.
Statutory context: Immigration Act
- No right to enter and remain in Canada, other than provided for in the Act:
o s 5(1): “No person, other than a person described in section 4, has a right to come into or
remain in Canada”
o S 4(2): a Convention refugee “while lawfully in Canada has a right to remain in Canada..”
Convention refugee defined by section 2(1): “convention refugee” means any person who, by
reason of a well‑founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside the country of his nationality and is unable or, by reason of such fear, is
unwilling to avail himself of the protection of that country, or
(b) not having a country of nationality, is outside the country of his former habitual residence
and is unable or, by reason of such fear, is unwilling to return to that country;
Procedure for determining convention refugee status set out in s 45:
- 45: Person claims convention status during an inquiry to determine whether they are a person
who qualifies for admission under section 4 – presupposes presence in Canada
(1) Once a claim is made, person examined under oath by senior immigration officer ------------claimant has right to counsel during examination
(2) transcript of that examination and copy of claim sent to minister for determination of
convention status
(4) Minister shall refer claim to Refugee Status Advisory Committee (est. by s 48; RSAC) for
consideration and after having received its advice, shall make determination and (5) advise
the senior immigration officer and claimant of her determination
In lay terms:
- Arrive in Canada and claim refugee status to official
- SIO will then examine claimant under oath (right to counsel) and provide claim and transcript
of examination to the minister
- Minister refers to RSAC who reviews and provides advice on the claim for Minister (or
delegate – RSAC Registrar) to make a decision. No obligation to provide reasons to claimant.
What issues do we see in the s 45 process?
Section 45 does not contemplate an oral hearing before the actual decision maker - minister – or
the panel that makes reco - the RSAC.
- Refugees only opportunity to be heard is through their claim and examination by the SIO
- No opportunity to comment/refute the RSAC’s advice to the minister or any of the
information it is relying on.
Is section 45 process a hearing?
-
Non-adversarial; opportunity to challenge information relied upon by RSAC/Minister?
RSAC often ends up being the section 45 decision maker as the minister delegates his authority
to the registrar of the RSAC.
- “In substance, therefore, it would appear that the Refugee Status Advisory Committee acts
as a decision‑making body isolated from the persons whose status it is adjudicating and that
it applies policies and makes use of information to which the refugee claimants themselves
have no access.”
What’s the basic procedural fairness guarantee?
- In the end, the Court wasn’t dealing with section 45 procedures, but with section 70-71
appeal procedures but whole process relevant to its final determination.
IAB appeal procedure set out in s 71
- 71. (1) Where the Board receives an application referred to in subsection 70(2), it shall
forthwith consider the application and if, on the basis of such consideration, it is of the
opinion that there are reasonable grounds to believe that a claim could, upon the hearing of
the application, be established, it shall allow the application to proceed, and in any other case
it shall refuse to allow the application to proceed and shall thereupon determine that the
person is not a Convention refugee.
(2) Where pursuant to subsection (1) the Board allows an application to proceed, it shall notify
the Minister of the time and place where the application is to be heard and afford the Minister a
reasonable opportunity to be heard.
(3) Where the Board has made its determination as to whether or not a person is a Convention
refugee, it shall, in writing, inform the Minister and the applicant of its decision.
(4) The Board may, and at the request of the applicant or the Minister shall, give reasons for its
determination.
IAB appeal procedure in lay terms
- When the IAB receives an appeal (application for redetermination), it considers the
application and if it believes the claim could be established at a hearing, it will hold a hearing
o If not, application dismissed
- If the hearing proceeds, it is a quasi-judicial hearing with full natural justice rights
Considering the section 70 procedure, does anything standout?
- To whom does the convention claimant get to make their claim?
If the IAB feels that there is no chance the claim could be established, the claimants will have
went through the entire process without having had a chance to know what the minister/IAB
considers to be the case against them and an opportunity to dispute it (i.e., the procedure does
not provide for the minimum process rights).
Why the need to resort to the Charter? Why doesn’t the Court read in common law duty of
fairness protections?
- The detailed statutory procedure prevents importing of duty of fairness – i.e., common law
DoF ousted by necessary implication
-
The process set out in the Immigration Act is so detailed that it is just not possible to find that
the common law rules of fairness or natural justice are available to expand the protections
set out in the statute
Application of the Charter, s 7
- “Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
o “Everyone” includes anyone physically in Canada and, therefore, amenable to its law
Applies to refugee claimants
Application of the Charter, s 7
- Section 7 threshold: is there a deprivation of life, liberty or security of the person?
- If the appellants are denied refugee status, what will they be deprived of under the act?
o The possibility of being granted a permit to remain in Canada
o The right not to be returned to a country where life or freedom threatened
o Right to appeal a deportation order
Does deprivation of these rights amount to deprivation of life, liberty, or security of the person?
Per Wilson (writing for Charter justices): life, liberty and security of the person to be treated as
three separate entities
- Liberty and SOP have consumed most of the case law. Life has went little beyond pure life or
death
Refugees are defined as persons who have a “well founded fear of persecution” in their home
countries, which indicates that their “security of the person” may be deprived by a decision to
deny them refugee status
“It seems to me that…security of the person must encompass freedom from the threat of
physical punishment or suffering as well as freedom from such punishment itself”
i.e., goes to psychological integrity as well as physical integrity
Per Wilson: denial of refugee status is, therefore, an SOP deprivation – but s 7 allows you to
deprive provided its done in a particular way
Is s 7 deprivation in accordance with the principles of fundamental justice (PFJ)?
- While procedural fairness required by PFJs may vary with the circumstances, at minimum the
right to a hearing, whether oral or written, before an unbiased decision maker and the
opportunity to know the case against you and an opportunity to contest it. --- Sounds like
common law, which makes sense if PFJs = principles that underlie our notions of justice
- Wilson accepts, with reservations, that oral hearing may not be necessary even where
matters of death, liberty and physical punishment may be at issue
- However, where credibility is at issue in hearing, PFJ require an oral hearing ---Why?
Does the procedural scheme set out in ss 45 and 71 meet PFJs?
-
Wilson primarily concerned not with lack of oral hearing, but with lack of opportunity for
claimants to the know the case against them and to state his case in response
On app for redetermination under s 70, the claimants have to convince the IAB that the minister’s
initial decision was likely wrong and that they have a reasonable chance of establishing their case
at a hearing  but required to do this without knowing upon what information and policies upon
which the minister’s decision was based,
- i.e., without knowing the case they have to meet and having an opportunity to meaningfully
respond.
-
Procedure could not be reconciled with PFJ and the violation of section 7 could not be saved
by the government’s arguments regarding administrative inconvenience (i.e., time/money)
Beetz, Estey, & McIntyre
Decided case under 2(e) of the CBR:
- …no law of Canada shall be construed or applied so as to (e) deprive a person of the right to
a fair hearing in accordance with the principles of fundamental justice for the determination
of his rights and obligations
- Process of determining refugee claims involves determinations of ri
must be done so in accordance with PFJ
- In this case, PFJ required full oral hearing before a person or body empowered to adjudicate
upon their claims
o Process did not afford them that
Threshold: Charter
Charkaoui v Canada, 2007 SCC 9 (unanimous court)
- Defines content of PFJ in national security setting
Background:
- C, a PR of Canada, and H and M, convention refugees, were deemed threats to national
security and detained under security certificates, issued under the IRPA, pending removal
proceedings
- Provincial minister accused of sexual harassment resulted in two complaints to the BC Human
Rights Commission.
- Complaints generated significant media coverage, forcing Blencoe to resign and to move
twice. Also suffered clinical depression.
- Commission took approximately 32 months to move the matter from complaint to hearing.
Blencoe alleged unreasonable state delay processing HR complaint deprived him of his liberty
and SOP
- Also alleged delay caused serious prejudice amounting to abuse of process and denial of
natural justice (i.e., delay unreasonable under normal admin law principles as well as section
7 violation) and sought a stay of proceedings
Application of the Charter to HRC
Threshold: Charter
Blencoe v BC [2000] 2 SCR 307
- Section 7 extends beyond criminal sphere to “state action which directly engages the justice
system and its administration”
o It has a place in admin law
- Life, liberty and security of the person
o 3 interests - court will give distinct meanings to each
o Must be a causal nexus between state action and deprivation to life, liberty or SOP
Liberty interest
- Liberty is not limited to “mere freedom from physical restraint”, but goes to matters affecting
“important and fundamental life choices” (237)
- Doesn’t mean every personal choice is a s.7 matter; rather; instances where the state
interferes with significant personal decisions going to personal autonomy
o Goes to factors basic to individual dignity and independence; not synonymous with
unconstrained freedom
Liberty – matters of fundamental personal importance:
- parents’ decisions re medical care for their children (B.R.)
- choice of place of residence (Godbout0
- Not a property/economic interest (expressly excluded from the Charter)
The states delay did not impact upon Blencoe’s liberty interest
Security of the Person
- “Security of the person” extends to “state interference with bodily integrity and serious stateimposed psychological stress”
Examples:
- Women’s autonomy over her own body
- The right to raise your children
- Ability of sexual assault victims to seek counseling without fear of private records being
disclosed
Interference with psychological well-being must be (1) state imposed and (2) serious
- Something more than the normal stress, anxiety and stigma associated with a legal
proceeding or government action
Security of the Person
- Dignity and respect for reputation are values that underlie the Charter, not self-standing
rights under s 7;
-
risks broadening s 7 into catch all legal right and values protected by the Charter – instead, s
7 is focused on serious state interference with the person
Security of the Person
- Stigma of human rights proceedings not equivalent to those of criminal proceedings; freedom
from stigma that may attach to HR proceeding not protected by SOP
o 11(b) guarantees right to trial within reasonable time – SCC had found stigma associated
with criminal charges engaged SOP in context of 11(b) delay
No s 7 right to be ‘tried’ within reasonable time in admin proceedings – should not import
criminal concepts into admin
- Criminal proceedings bring state power to punish; HR proceedings designed to eradicate
discrimination through conciliation or remedial/compensatory measures
- In short, being subject to a regulatory process, like a human rights complaint and investigation
process, will not deprive a person of their liberty or security of person merely because it
exposes them to some loss of dignity or reputation, to some stigma, or to some stress and
anxiety
- While state caused delay may have resulted in some prejudice, did not deprive him of liberty
or SOP
Wilson v BC (1988, BCCA)
- Commission established a scheme for limiting the number of doctors practicing in BC and
directing where they had to practice
- Issue: Is “liberty” broad enough to encompass the opportunity to pursue a profession in a
particular place
- Court held that s.7 isn’t confined to mere freedom of bodily restraint, but it doesn’t extend
to protect property or pure economic rights
- Scheme deprived the practitioner of ability to practice their profession and impaired their
mobility rights, which together deprived them of their “liberty” pursuant to section 7
Did it do so in accordance with PFJs?
- Scheme based upon vague and uncertain criteria and uncontrolled discretion
- Substantial scope of arbitrary conduct
- no duty to make decision on applications
- lack of a hearing
- no reasons
- Lack of knowledge on the need for doctors in a geographic area or in the Province
Difficult case to reconcile with more recent cases indicating s7 does not protect a right to practice
Summary
Is there a deprivation of of life, liberty, or SOP
- Life: potential deprivation of one’s life
-
Liberty: is not limited to “mere freedom from physical restraint”, but goes to matters
affecting “important and fundamental life choices” (Blencoe)
SOP: “state interference with bodily integrity and serious state-imposed psychological stress”
(Blencoe, Singh)
Was the deprivation in accordance with PFJ?
- Based on basic notions of fairness, including CL protections
o 5 tennets
o Variable based on circumstances but difficult to justify lack of oral hearing with such
fundamental rights at stake; oral hearing is required where credibility at issue (Singh)
If PFJs violated, is the violation saved by s. 1
- Section 7 violations difficult to justify but resort to Oakes test:
o Oakes test: pressing and substantial objective, rational connection, minimal impairment,
proportionality (see Charkaoui)
Threshold: General Procedural Statutes
GENERAL PROCEDURAL STATUTES
Alberta:
- Administrative Procedures and Jurisdiction Act
- Administrative Tribunals designated by regulation
- Jurisdiction to determine Constitutional Law
Authorities Designation Regulation 64/2003
- Land Compensation Board
- Surface Rights Board
- Alberta Transport Safety Board
- Natural Resources Conservation Board.
Designation of Constitutional Decision Makers Regulation 69/2006
- Labour Relations Board
- Law Society
- Workers’ Compensation Board
- Law Enforcement Review Board
- Alberta Securities Commission
- Alberta Utilities Commission/Alberta Energy Regulator
We have been talking about Procedural Fairness, now to put it in an analytical framework. How
the court goes about analyzing admin law problems. Baker is the methodical answer sheet you
follow: FACTS, STATUTES, PROCEURAL FAIRNESS ISSUES AND SUBSTANTIVE REVIEW
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817
Judicial Review
Our objective today – to understand:
(1) How the court approaches problems of procedural fairness
(2) How to determine the contents of the duty of fairness and the procedural requirements of a
given case
(3) How the court approaches administrative law issue on review, generally
Baker is a high-level and influential decision, as much for how the decision is structured as for
what it says
The courts have supervisory role, which they exercise through inherent judicial review authority.
Concerned not only with the decision itself (i.e., substance) but also how it was made (i.e.,
procedure).
Primary Grounds of Review
Procedural review: breaches of procedural fairness (part 1 of this course)
- Common law imposes a duty of fairness on administrative decisions.
Substantive review (part 2 of this course):
- Was the decision itself reasonable/correct in the circumstances?
Approach to Admin Problems
The factual background: what happened and what decision is at issue?
The statutory context: what legislation, regs, bylaws, policies, etc. are relevant?
Procedural review:
- Did the statutory delegate owe a duty of fairness? THRESHOLD Q
- What procedure was followed and was it sufficient to satisfy the duty of fairness in the
circumstances? (Baker helps us answer this Q)
Substantive review:
- Against what standard do we review the substance of the decision (i.e., must it be correct or
reasonable?)
- What did decision maker decide, and does it contain any errors (factual, logical reasoning)
that are likely to render the decision unreasonable/incorrect?
Judicial Review in Baker
Through which court did Mavis Baker seek judicial review?
- Federal Court Division, because sec83 of immigration act, where all decisions can be reviewed
under JR, and only decisions under leave, which is a test for a serious issue.
Section 96 superior courts are the courts of inherent jurisdiction (e.g., ABQB)
Federal Courts were created via statute under section 101 of the Constitution
- Handle just about all judicial reviews in federal areas of jurisdiction.
Judicial reviews on provincial matters remain within section 96 superior courts, not done often
Step 1: Factual Background
Baker: What happened?
Mavis Baker arrived in Canada in 1981 from Jamaica and remained illegally.
Worked illegally as a foreign domestic.
Had 4 Canadian born children.
Suffered mental health issues.
Lost custody of 2 children to father and 2 to social services but recovered sufficiently to take
custody of 2 back from Social services.
After being in Canada for 11 years she was ordered deported in 1992, due to overstaying her visa.
She applied for ministerial exemption, sec114 subsec2 Immigration Act, based on H&C
applications. She provided a letter of support from medical professionals that she was eligible for
this exemption.
What was the decision at issue?
- Applied for an exemption, under the then Immigration Act, from requirement to apply for
permanent residence status from outside Canada based on H&C considerations. (She had to
be outside of Canada)
- Exemption refused in letter from Immigration Officer Caden.
o What was a notable problem with that letter?
o A: No reasons for the refusal of exemption
o How was the problem solved? A: IO Lorenz Notes
Notes of IO Lorenz
PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children
in Jamaica- HAS A TOTAL OF EIGHT CHILDREN
Says only two children are in her “direct custody”. (No info on who has ghe [sic] other two).
There is nothing for her in Jamaica - hasn’t been there in a long time - no longer close to her children there - no
jobs there - she has no skills other than as a domestic - children would suffer - can’t take them with her and
can’t leave them with anyone here. Says has suffered from a mental disorder since ’81 - is now an outpatient
and is improving. If sent back will have a relapse.
Letter from Children’s Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer
if returned - Letter of Aug. ’93 from psychiatrist from Ont. Govm’t.
- Says PC had post-partum psychosis and had a brief episode of psychosis in Jam. when was 25 yrs. old. Is
now an out-patient and is doing relatively well - deportation would be an extremely stressful experience.
Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc’s mental condition would
suffer a setback if she is deported etc.
This case is a catastrophy [sic]. It is also an indictment of our “system” that the client came as a visitor in Aug.
’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!
The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has
FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on
our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR
CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer
afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse
publicity. I recommend refusal but you may wish to clear this with someone at Region.
There is also a potential for violence - see charge of “assault with a weapon” [Capitalization in original.]
---^
This letter fails to recognize the children in this application as a H&C ground, and uses the children
against her, he mentions the children in ALL CAPS. His opinion shouldn’t matter to this decision.
He refrences mental health issues, but doesn’t consider it after that. Look at the courts analyses
---^
Step 2: Statutory context
Under what legislation was the decision made? A: immigration Act
What other legislation or quasi-legislation was at issue?
- Conventions – a ratified piece of international legislation that we hadn’t adopted into our
laws yet
- Guidelines – don’t have statutory force but are a written instrument that impacts on the
decision
The Immigration Act provided the general prohibition, and also provided that the minister, in
certain circumstances, have the authority to grant an exemption. That exemption was put into
statutory force through the Immigration Regulations.
9(1) Required permanent residence applications to be made from outside of Canada
114 (2) The Governor in Council may, by regulation, authorize the Minister to exempt any
person from any regulation made under subsection (1) or otherwise facilitate the
admission of any person where the Minister is satisfied that the person should be
exempted from that regulation or that the person’s admission should be facilitated owing
to the existence of compassionate or humanitarian considerations.
114(2) delegates authority to Cabinet to make regulations allowing minister to exempt a person
from regulations under the act if satisfied H&C considerations exist. 2.1 is the regulation providing
the minister with that actual authority.
Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44
2.1 The Minister is hereby authorized to exempt any person from any regulation made
under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person
where the Minister is satisfied that the person should be exempted from that regulation or that
the person’s admission should be facilitated owing to the existence of compassionate or
humanitarian considerations.
Immigration Act, R.S.C., 1985, c. I-2
82.1 (1) An application for judicial review under the Federal Court Act with respect to any
decision or order made, or any matter arising, under this Act or the rules or regulations
thereunder may be commenced only with leave of a judge of the Federal Court -- Trial
Division.
83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial
review with respect to any decision or order made, or any matter arising, under this Act
or the rules or regulations thereunder may be appealed to the Federal Court of Appeal
only if the Federal Court -- Trial Division has at the time of rendering judgment certified
that a serious question of general importance is involved and has stated that question.
Convention on the Rights of the Child
- Best interests of the child shall be a primary consideration in state decisions/actions
concerning children.
- Forceful separation should be avoided unless in the best interest of the child.
- State shall ensure children and parents have participatory rights in any decision affecting their
rights.
Guidelines
“Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a
public policy consideration is present, and if there is none, whether humanitarian and
compassionate circumstances exist. Public policy reasons include marriage to a Canadian
resident, the fact that the person has lived in Canada, has become established, and has become
an “illegal de facto resident”, and the fact that the person may be a long-term holder of
employment authorization or has worked as a foreign domestic”.
“Guideline 9.07 states that humanitarian and compassionate grounds will exist if “unusual,
undeserved or disproportionate hardship would be caused to the person seeking consideration
if he or she had to leave Canada”. The guidelines also directly address situations involving family
dependency, and emphasize that the requirement that a person leave Canada to apply from
abroad may result in hardship for close family members of a Canadian resident, whether parents,
children, or others who are close to the claimant, but not related by blood. They note that in
such cases, the reasons why the person did not apply from abroad and the existence of family or
other support in the person’s home country should also be considered”.
Ministers Decision  Applied for JR with leave: “A fairly arguable case and a serious question to
be determined”  To get to Federal Court Trial Division: when a question of general importance
is certified: Whether the convention had … Federal Court of Appeal:  SCC
Federal Court - Upheld decision
Lack of reasons:
- Lack of reasons from decision maker, IO Caden, not fatal – court presumed good faith and
that the decision was made on the correct principles.
Notes of IO Lorenz did not display bias but would not have mattered since they weren’t those of
the decision maker, IO Caden was.
Why is this problematic?  Escaping review simply because the decision maker didn’t provide
any decisions.
Held: Convention not applicable.
- While ratified, it has not been incorporated into domestic law; thus, not applicable.
- Did not give rise to legitimate expectation that children’s best interest would be primary.
- Even so, evidence showed children did play a significant factor, see IO Lorenz notes.
Certified s. 83 question of general importance:
- “Given that the Immigration Act does not expressly incorporate the language of Canada’s
international obligations with respect to the International Convention on the Rights of the
Child, must federal immigration authorities treat the best interests of the Canadian child as a
primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?”
83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review
with respect to any decision or order made, or any matter arising, under this Act or the rules
or regulations there under may be appealed to the Federal Court of Appeal only if the Federal
Court -- Trial Division has at the time of rendering judgment certified that a serious question
of general importance is involved and has stated that question.
Federal Court of Appeal - Dismissed appeal
- Limited itself to answering only the certified question.
- Legislation should be interpreted to avoid conflict with international obligations where
possible but cannot create substantive right requiring minister to prioritize best interest of
the children.
- Deportation of a parent was not a decision that affected children within meaning of the
Convention.
SCC (1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope
of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural
fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of
procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of
Ms. Baker’s children?
*This case covers the primary areas of what Administrative Law: PF, Bias, Standard of Review and
Substantive Review
The Nature of the Impugned Decision:
The decision dealt with whether Ms. Baker should receive an exemption to the general
requirement under the Act that a person apply for PR status from outside of Canada based on
H&C considerations. While that may appear uncontroversial or routine on its face, the court
stresses its potential impact in practice: could require a person to leave a place they have lived
and become established and fundamentally effect not only their future but that of their kids.
 in short, the impugned decision was an important for those affected.
The court also tells us something about how these sorts of decisions are made in practice. While
the decision is delegated to the Minister by statute and regulation, it is in practice one dealt with
in the name of the Minister by immigration officers.
- tells us about the practical nature of some delegated powers: namely, the statutory delegate
may have to exercise that power through others.
Nothing in statute says the minister can delegate this power, so how can they do it?
Delegated authority includes express powers and those that can be implied to be
reasonably for the delegate to fulfil their mandate.
Given this practical reality, the court then reviews the department guidelines IOs are provided
on how to exercise the Minister’s discretion.
What do the guidelines indicate? Perhaps a recognition that these decisions can be important
and require a thoughtful/consistent approach.
So before looking at the specific grounds of review, we know that the court thinks this is an
important question and that it deserves to be considered with some rigor, as the departments
own guidelines acknowledge.
Procedural Fairness:
What type of procedure did Baker receive?
- Ordered deported, presumably with some reasons.
- Made written application for exemption together with which she provided documentary
evidence and written submissions from her lawyer.
- Written decision though it contained no reasons.
- Only received some indication of reasons when lawyer sought and received notes of Lorenz’s
Baker claimed these were insufficient and that a fair procedure in this case required:
- Oral hearing before the decision maker
- Notice and participation rights in that hearing for other affected parties (children, father of
children), including right to make subs and have counsel.
- Written reasons from the decision maker.
- Unbiased/impartial decision maker
o Alleged notes of Lorenz displayed a reasonable apprehension of bias.
Step 3: Is there a duty of fairness owed
What triggers the duty of fairness
(1) decision is administrative, and
(2) it affects “the rights, privileges, or interest of an individual” (para 20)
Level/Content of Procedural Fairness
**Step 4: What level of fairness is required in the circumstances? Baker tells us it is variable based
on 5 factors **:
(1) Nature of the decision and the process followed in making it: legislative Quasi-judicial
(para 25)
- the more the decision and the process prescribed for making it resembles judicial decision
making, the more likely it is the duty of fairness will require court like procedural protections
(para 21)
Nature of the statutory scheme, including the right of appeal vs. no right of appeal (para 24)
Legitimate expectations of the person challenging the decision (para 26)
If a person has a legitimate expectation that a procedure will be followed, the duty of fairness
will require it. However, it cannot create a substantive right outside of the procedural realm.
This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting
procedural fairness take into account the promises or regular practices of administrative
decision-makers, and that it will generally be unfair for them to act in contravention of
representations as to procedure, or to backtrack on substantive promises without according
significant procedural rights.
Almost seems like an estoppel – don’t see it much in the modern case law.
Choices of procedure made by the agency or decision maker, particularly where the agency has
some expertise in deciding what process is appropriate (para 27).
Content of duty of fairness is variable but several factors relevant:
(2) Nature of the statutory scheme and terms of statute under which DM operates
-
including the right of appeal vs. no right of appeal, finality of decision with no right of appeal
will require more procedural protections (para 24)
(3) Importance of decision to individual or individuals affected (4) Legitimate expectations of the person challenging the decision (para 26) (5) Choices of procedure made by the agency or decision maker, particularly where the agency
has some expertise in deciding what process is appropriate (para 27).
Non-exhaustive factors (have become pretty set over time) but **underlying principle is
important**:
- “The values underlying the duty of procedural fairness relate to the principle that the
individual or individuals affected should have the opportunity to present their case fully and
fairly, and have decisions affecting their rights, interests, or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and social context of
the decision.” [para 28].
-
“At the heart of this analysis is whether, considering all the circumstances, those whose
interests were affected had a meaningful opportunity to present their case fully and fairly”
(para 42)
Legitimate Expectations:
- Dismissed as not affecting level/content of fairness in this instance
- The Convention created no legit expectation of process above DoF – i.e., that children’s
interest would be paramount.
o Convention, despite our ratification, didn’t amount to a gov’t representation (para 29).
- court dismisses it quickly as a factor: Convention created no legit expectation of process
above DoF. Convention didn’t amount to a gov’t representation (para 29). High standard?
- Given what the convention says, and given that we ratified it, you could see why she might
think that at the very least her children and there father would be given more participatory
rights.
What level of fairness was required?
- Nature of decision-making process?
o Point to higher or lower DoF higher?
- Statutory context?
o Higher or lower?
- Nature of decision?
o Higher or lower?
- Procedures selected?
o Higher or lower?
So what level of fairness is required?  looking at the factors identified:
Process for making decision:
- Decision/Process: Not a quasi-judicial decision – involves exercise of “considerable
discretion” requiring consideration of multiple factors and the decision is one of exception to
the general rule  relaxed procedural requirements.
- Statutory: context
o No appeal procedure and JR can only be sought through leave  more stringent procedure
Important decision  more stringent procedure.
o Statute allows minister flexibility in choosing procedures and that choice is important
though not determinate. Procedures selected do not include oral hearings, as a general
rule  suggest less stringent procedures
Results:
 mixed bag but court disagrees with FCA that PF owed is minimal.
“the circumstances require a full and fair consideration of the issues, and the claimant and others
whose important interests are affected by the decision in a fundamental way must have a
meaningful opportunity to present the various types of evidence relevant to their case and have
it fully and fairly considered.” (para 32)
o i.e., not the highest level requiring oral hearings, cross, etc., but middle level requiing
‘meaningful’ procedural protections
What was required here?
- Oral hearing not necessary (para 33).; written hearing was sufficient (para 34).
- BECAUSE --- Written submissions can be enough, and they were in this instance to satisfy the
duty of fairness (thought: What if she wasn’t represented by a lawyer? Would written subs
be enough then?).
- Able to put before the decision maker in writing through her lawyer the relevant information
about her situation, the children, and her health
Oral hearing not necessary; written sufficed. Why?
- “An interview is not essential for the information relevant to an H & C application to be put
before an immigration officer, so [they] may be considered in their entirety and in a fair
manner”
- MB was able to get all the relevant information before the IO  issue here was what they
did with the information.
Were written reasons required?
- Common law and prior case law had not held that the duty of fairness could impose a duty to
provide written reasons.
- Desirability of reasons:
“Reasons, it has been argued, foster better decision making by ensuring that issues and
reasoning are well articulated and, therefore, more carefully thought out. The process of
writing reasons for decision by itself may be a guarantee of a better decision. Reasons also
allow parties to see that the applicable issues have been carefully considered and are
invaluable if a decision is to be appealed, questioned, or considered on judicial review…those
affected may be more likely to feel they were treated fairly if reasons are given” (para 39).
-
In certain circumstances, the duty of fairness will require reasons, but reasons need not be a
formal decision. Requirement can be satisfied by other portions of the written file, such as
notes, provided they allow a person to understand why a decision was made (para 40).
-
DoF required reasons  IO Lorenz’s notes satisfied that requirement
Substantive Review:
- Is about the outcome of the decision.
Standard of Review: Pre-Dunsmuir
Historically, the courts were concerned primarily with ensuring that a decision maker did not
exceed their statutory grant of jurisdiction and did not abuse their discretion
Jurisdiction
Two potential views of jurisdiction lead to vastly different levels of court intervention on review
(1) Parliament delegated jurisdiction over a particular area of law to tribunal  as long as tribunal
does not go outside that area of law, their interpretation of the law regardless of whether the
court agrees, cannot be interfered with
- Emphasizes Parliament sovereignty/legislative supremacy but results in courts intervening
less frequently in admin decisions
(2) Parliament granted jurisdiction but not to make errors of law; tribunal has no jurisdiction to
make a mistake
- Emphasizes rule of law and consistency of interpretations, but means courts will be
intervening in admin decisions more frequently
Until the second half of the 20th century, courts favoured the first view of jurisdiction meaning
courts were reluctant to intervene absent an abuse of discretion
Types of Abuse of Discretion
- Bad faith
- Improper Purposes
- Irrelevant considerations
- Failure to consider relevant considerations
- Fettering of discretion
With post WWII proliferation of administrative regimes, especially into traditional domains of the
court (e.g., labour/employment regimes), courts began to favour the second view and became
more interventionist
LOSS of Jurisdiction = Court
would overturn
Tribunal
had
exclusive
Jurisdiction over blue if
private clause and broad
discretion on those q’s if not.
Standard
of
Review:
Jurisdictional Questions
CUPE v. N.B. Liquor Corp. (SCC, 1979)
The arrival of deference and the first moves toward modern standard of review analysis
Issue of law (i.e., statutory interpretation) in a labour relations case
-
Were management personnel allowed to replace striking liquor store employees given 102(3)
of the Public Service Labour Relations Act?:
“(a) the employer shall not replace the striking employees or fill their position with any other
employee, and (b) no employee shall picket…near any place of business of the employer”
-
Does section 102(3)(a) prohibit management from replacing striking “employees” (members
of the bargaining unit) with management personnel (not members of the bargaining unit) to
keep stores open
-
So the argument is really about whether there should be a comma  i.e., employer shall not
replace the striking employees and shall not fill their position with any other employee vs.
employer shall not replace striking employees with any other employee nor fill their position
with any other employee
o Latter interpretation would let employer replace with non-employees under the act – i.e.,
management.
-
The Board said “no” to replacing with management personnel – 102(3) intended to prevent
picket line violence by barring picketing but also preventing employer from strike breaking.
-
N.B. Court of Appeal said “yes”, and said that by erring on this “preliminary or collateral”
question of law, the Board had exceeded (lost) its jurisdiction
o preliminary question or collateral question on which the Board was required to be correct
SCC, per Dickson J: There are several reasons for judicial restraint in this case:
- Existence of a privative clause
o 101(1) Except as provided in this Act, every order, award, direction, decision, declaration,
or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be
questioned or reviewed in any court
o These privative clauses do not oust the ability of the court to Judicial Review decisions made
under legislation. Enabled by the structure of the constitution the courts are required to be
able to engage in JR.
- Expertise Argument? Labour boards are expert in labour relations & The PSLRB, in particular,
has a specialized role dealing with public service labour relations
- Section 102(3) is unique, and comes with no previous, clearly understood interpretation. It is
“very badly drafted. It bristles with ambiguities.” we haven’t seen a clause like this before
so perhaps we should use it as an indication for judicial restraint
CONT’d
- Where an issue is within the tribunal’s jurisdiction, and there is a privative clause, then a court
may quash the decision only if it is “patently unreasonable”.
o The issue is central to the Board’s reason for existence. Although an issue of statutory
interpretation, it is within the Board’s jurisdiction.
 If this isn’t within a labour board’s jurisdiction, what is?
“Patent unreasonability” is akin to an abusive or irrational decision  i.e., an interpretation
of the governing statute that cannot be “rationally supported” by the statutory language
o High standard for intervention
- In this case the provision is ambiguous and there is no big problem with how the board
interpreted it. Strikes down NB CA decision.
-
*IMPORTANT*In other words, there are legal and interpretive issues for which there is no single
“correct” answer--or, in other words, for which there is a range of reasonable answers (89).
o The boards interpretation was within the ambit of reasonable interpretations of the
provision.
After CUPE, there were 2 standards of review: correctness and patent unreasonableness
Director of Investigation, Competition Act v Southam Inc. (SCC, 1997)
Added a third standard of review between the two: reasonablenes simpliciter
Pushpanathan v. Canada (M.C.I.) (SCC, 1998)
Standard of Review determined by applying a “pragmatic and functional approach” which
reviews four factors: (more or less deference)
(1) – Existence, and strength, of a privative clause
(2) – Relative expertise of the tribunal vs the court
(3) – Statutory purpose of the act, the provision, and the tribunal
(4) – Nature of the particular issue: Law, fact, or mixed law and fact
So, at the time Dunsmuir came to the SCC, there are 3 standards of review:
- Correctness
- Reasonableness simpliciter  a decision that stands up to a somewhat probing analysis
- Patent unreasonableness – a decision that is not “clearly irrational”
Applicable SoR determined by apply the 4 factors of pragmatic and functional approach outlined
in Pushpanatham.
Problems:
- If patent unreasonableness is the standard, what does that mean?
o P&F approach offered a flexible, contextual approach but was unduly complex and led to
long dissertations on very subtle points of law, often overtaking the merits of the case
Standard of Review: Dunsmuir
Why all the handwringing about SoR?
- It’s practically important to the substantive outcome, and, therefore, the participants
- In Dunsmuir, court explained that the standard of Review attempts to balance two important
but competing values, both critical to judicial review of administrative decisions.
o Legislative supremacy
 How much should the court defer to legislature’s expression of the democratic will
o Rule of law
 Authority must find a source in the law and is constrained by legal limits of statute,
common law, and constitution; the courts are to enforce the rule of law
-
Standard of Review analysis developed in Dunsmuir is intended to guide courts towards
finding the appropriate balance in each case – the aim is to “discern legislative intent keeping
in mind the constitutional role of the courts in maintaining the rule of law” [Dr. Q v. College
of Physicians and Surgeons of British Columbia, 2003 SCC 19]
- The standard of review analysis developed in Dunsmuir
o maintained rule of law by ensuring the Courts have the last word on jurisdiction, and
o maintains legislative supremacy by determining the appropriate standard of review by
establishing the intention of the legislature (i.e., who did the legislature want to make this
decision) (correctness and reasonableness)
 Where the legislature indicates it wants an administrative body to make the decision,
the courts must show deference to that intention
Dunsmuir v New Brunswick, 2008 SCC 9
Background: (Statutory Interpretation case)
- Mr. Dunsmuir fired upon pay in lieu of reasonable notice (i.e., given severance). Government
did not allege cause (i.e., disciplinary termination)
- S 20 of the Civil Service Act allowed government to fire based on normal rules of employment
contract, which they did
- But s 100.1 of the Public Service Labour Relations Act extended grievance rights to nonunionized employees, such as Mr. Dunsmuir. Under the PSLRA, an Arbitrator could substitute
another penalty if termination was “for cause”
- Mr Dunsmuir greived and alleged termination for cause. Preliminary issue of statutory
interpretation was whether Arbitrator had authority to examine reasons for dismissal to
determine if the government had in reality dismissed for cause or was limited to reviewing
amount of severance
- Arbitrator held he must have that authority to examine reasons otherwise employer could
simply not allege cause and avoid any scrutiny
- On JR, NBQB applied correctness standard despite privative clause and relative expertise of
arbitrators and held interpretation to be incorrect. Court of Appeal applied reasonableness
simpliciter – interpretation unreasonable based on competing statutory rights: PSLRA cannot
trump CSA – only right to grieve amount of severance.
- SCC STATES: Pragmatic and functional approach has value but has become unwieldy  time
for a change in approach
- First change: the name  P&F approach gone; instead, we now perform a “Standard of
Review Analysis” to determine appropriate standard
- Second change: no longer three standards of review: two standards of review  correctness
and reasonableness
o Reasonableness is a deferential standard, which is based upon the recognition that many
questions that come before administrative tribunals give rise to many possible, reasonable
conclusions  Reasonableness is concerned with the existence of justification,
transparency and intelligibility within the decision-making process, such that the decision
falls within a range of possible, acceptable outcomes
o Correctness  the reviewing Court will show no deference and will conduct in its own
analysis of the issue
No longer is an exhaustive analysis of 4 factors identified in Pushpanatham always required
Instead, a two-step approach
(1) ascertain whether the existing jurisprudence has already satisfactorily determined the
appropriate standard of review for the issues in question
(2) If not, only then should the Court conduct a standard of review analysis, which determines
the deference owed to an administrative tribunal by examining the following contextual factors:
- (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as revealed
in its enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the
tribunal.
The Standard of Review Analysis, cont.
However, the court went on to identify several categories of questions to which reasonableness
presumptively applied:
- Questions of fact, mixed fact and law, discretion, or policy
- Where the administrative tribunal or body is interpreting/applying its own statute or statutes
closely connected to its function, with which it will have particular familiarity
- Where an administrative tribunal has developed particular expertise in the application of a
general common law or civil law rule in relation to a specific statutory context
Presumption of reasonableness could be rebutted (with difficulty) by reference to the 4
contextual factors (previously the 4 P&F factors from Pushpanatham) at stage 2
The court also identified several categories of questions to which Correctness presumptively
applies:
- Constitutional questions, including questions regarding the division of powers between
Parliament and the provinces;
- Questions regarding the jurisdictional lines between two or more competing specialized
tribunals;
- Questions of true jurisdiction or vires; and
- Questions of general law that are both of central importance to the legal system as a whole
and outside the adjudicator’s specialized area of expertise
The Standard of Review Analysis, cont.
If jurisprudence has not satisfactorily determined SoR and if one of the pre-determined
reasonableness/correctness categories does not apply, the analysis proceeds through contextual
analysis of the four second stage factors:
(1) the presence or absence of a privative clause;
(2) the purpose of the tribunal as revealed in its enabling legislation;
(3) the nature of the question at issue; and
(4) the expertise of the tribunal
- May not need to reference all factors
Application in Dunsmuir
- Reasonableness standard applied
o Privative clause
o Relative expertise applying own statute
- Statutory interpretation was unreasonable
Standard of Review: Post-Dunsmuir
Case law evolved Post-Dunsmuir; Where jurisprudence has not satisfactorily identified SoR,
presumption of reasonableness applies to questions that lie outside the categories of
correctness:
- Constitutional questions, including questions regarding the division of powers between
Parliament and the provinces;
- Questions regarding the jurisdictional lines between two or more competing specialized
tribunals;
- Questions of true jurisdiction or vires; and
- Questions of general law that are both of central importance to the legal system as a whole
and outside the adjudicator’s specialized area of expertise
Presumption of reasonableness can be rebutted through second stage contextual analysis
- The aim of the contextual analysis, as with the Standard of Review Analysis, generally, was to
answer primary question: did the legislature intend the court to show deference to admin
decision maker?
Presumption of reasonableness in Dunsmuir categories proved hard to rebut:
Alliance Pipeline Ltd. v. Smith, 2011 SCC 7
- National Energy Board’s authority to award costs under home statute
Canada (Attorney General) v. Mowat, 2011 SCC 53
- Human Rights Tribunal authority to award costs under home statute
Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals,
2011 SCC 59
- Labour arbitrator’s application of modified equitable doctrine of estoppel to provide remedy
A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61
- Authority of privacy commissioner to extend timelines stipulated in home statute
Building to Vavilov
- In recent years, a series of split decisions at the SCC, including some 5-4 decisions (see
Edmonton East 2016 SCC 47), revealed a split on the court regarding the applicability of the
correctness standard.
-
Several justices (e.g., Cote, Brown, always, and some more adhoc such as Bmac) appeared
uncomfortable, in certain situations, applying reasonableness to questions of law and
statutory interpretation for which they felt there should be only one answer.
o In particular, where there was a chance of multiple competing interpretations of the same
provision.
- In order to support their argument for correctness, some of their dissents argued that the
issue before the court fell into one of the Dunsmuir categories of correctness (i.e., statutory
interp or questions of law issues were argued to raise true questions of jurisdiction or issues
of central importance to the legal system).
- On the other hand, Abella suggested ditching correctness altogether.
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47
- 5 to 4 decision (Cote, Brown, BMac, Moldaver dissenting on result and SoR)
- Capilano appealed the City’s tax assessment to the Assessment Review Board (ARB)
established by the City pursuant to the MGA.
- Under the the MGA, ARB’s are established by each individual municipality to deal address
assessment complaints/appeals, which means there are numerous ARBs across the province.
- At Capilano’s hearing, the City submitted new evidence arguing for an increased assessment.
The ARB accepted the City’s evidence and revised the assessment up.
- Capilano appealed to QB under a statutory appeal provisions that allowed appeals on q’s of
law or jurisdiction only. Capilano argued that the MGA did not allow the City to request a
new assessment before the ARB.
-
-
Majority: straight-forward application of Dunsmuir. Board interpreting its own statute –
presumptive reasonableness, which is not rebutted by the presence of limited stat right of
appeal or concern about conflicting interpretations of the MGA from multiple ARBs.
Dissent: in this case, stat right of appeal and structure of the act (creating multiple different
ARBs) suggests legislature wanted discreet questions of law and jurisdiction arising from ARBs
across the province to have one correct answer (as opposed to competing reasonable
answers). Other types of questions subject to JR and reasonableness.
In that light, court took Vavilov and companion cases with express intention of examine its
approach to SoR.
Determining the Standard of Review: The Vavilov Approach
- 10yrs after Dunsmir
- “Judicial Review functions to maintain the rule of law while giving effect to legislative intent”
- Maintaining the rule of law  ensuring that admin decision maker (i.e., statutory delegates)
acting within bounds of statutory authority given by parliament
- Giving effect to legislative intent  giving admin decision maker deference (i.e., apply
reasonableness standard) when legislative intended to leave area of decision making with
them.
Why the back and forth over SoR?
- Involves issues fundamental to our legal order  rule of law and legislative supremacy
- Given proliferation of admin decision makers exercising stat authority, administrative
decisions are often the principal manifestation of state power in people’s lives
o (And, maybe, shouldn’t that be us)
As such, clear guidance on how courts will perform JR is “essential”
Dunsmuir failed to simply SoR analysis
-
-
Mostly because the Court left the contextual
analysis available for exceptional cases and
lawyers!
Lack of certainty and predictability; the routine
application of reasonableness even when a
different “institutional structure” provided (i.e.,
right of appeal).
New approach = The Vavilov Approach
(1) Reasonableness is the presumptive standard of review where a court reviews the merits of
administrative decision*Substance of decision not procedure they don’t mix*
(2) The presumption is rebuttable by (a) a clear expression of legislative intent or (b) where
required by the rule of law
*
Reasonableness is the presumptive standard of review
- Where the legislature has empowered a statutory delegate to admin a statutory scheme 
must presume that they wanted delegate to fulfill its mandate with minimum interference
from the court…at least where statute gives no role to the court
- The very choice to delegate statutory authority is what justifies presumption of
reasonableness review, but s 96 means courts cannot be blocked entirely from JR.
Reasonable presumption rebuttable by clear expression of the legislative intent
(1) legislated standard of review
- Clear language prescribing the standard of review to apply  BC: Admin Tribunals Act
(2) Statutory appeal mechanisms
- Legislation provides statutory appeal on question under review (Thus can rebut the PoR)
- Review conducted on appellate standards of review laid out in Housen v Nikolaisen
o Questions of law: correctness
o Questions of fact and mixed fact and law: palpable and overriding error. (Functionally similar
to reasonableness SoR)
- Applies only to provisions that grant right of ‘appeal’ such that court is given appellate
authority
-
Some statutes include clauses that recognize right of judicial review of set out procedures for
judicial review
- If appeal mechanism is limited (i.e., to questions of law only), limited material goes through
appeal and the rest through JR
o Bi-furcating proceedings?
ALBERTA POLICE ACT (ex. of legislation that includes appeal mechanisms are circumscribed)
- Appeal to Court of Appeal
o 18 The decision of the Board in respect of a matter appealed to it under section 48 may,
 (a) within 30 days from the day that the Board gives its decision, and
 (b) with the permission of a single judge of the Court of Appeal,
o be appealed to the Court of Appeal on a question of law. If it’s about facts and law, then you
have to use JR. ex of Bifurcating process.
LABOUR RELATIONS CODE
- 19(1) Subject to subsection (2), no decision, order, directive, declaration, ruling or proceeding
of the Board shall be questioned or reviewed in any court by application for judicial review or
otherwise, and no order shall be made or process entered or proceedings taken in any court,
whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise,
to question, review, prohibit or restrain the Board or any of its proceedings.
- (2) A decision, order, directive, declaration, ruling or proceeding of the Board, except a
decision made under section 145(3), may be questioned or reviewed by way of an application
for judicial review seeking an order in the nature of certiorari or mandamus if the application
is filed with the Court and served on the Board no later than 30 days after the date of the
decision, order, directive, declaration, ruling or proceeding, or reasons in respect of it,
whichever is later.
- (3) The Court may, in respect of any application under subsection (2),
o (a) determine the issues to be resolved on the application,
o (b) limit the contents of the return from the Board to those materials necessary for the
disposition of those issues, and
o (c) give directions to protect the confidentiality of the matters referred to in section 14(6).
Reasonable presumption rebuttable when required by the rule of law:
“ensures the courts are able to provide the last word on questions of for which the law requires
consistency and for which a final and determinate answer is necessary”
- unless, of course, the court changes its mind =]
- Questions that rebut presumptive reasonableness
o Constitutional questions
o Those of central importance to the legal system as whole ***
o Questions regarding the jurisdictional boundaries between two competing tribunals
o More movement to the correctness standard, stringent review of admin tribunals
Elgie v Alberta, 2009 ABCA 277 - Questions of Central Importance
-
Legal but separated spouse applied to WCB for pension benefits as dependents, for both
herself and her youngest child, when her soon to be ex-husband died in workplace accident
- Under s 1(1)(h) “dependent” defined as “member of family” at least partially dependent on
worker’s earnings at time of death for “ordinary necessities of life”
- WCB and Appeal Commission denied decision – not “dependent” under the s 1(1)(h) because
worker was not providing financial support at time of death
o though Commission acknowledged she was seeking financial support through divorce
proceedings, it refused to consider whether possible outcome of those proceedings would
bring them within definition of dependents under the Act
o Also, refused to consider whether Elgie stood “in loco parentis” to youngest child and what
that would mean for issues of dependency
- Chambers Judge applied patent unreasonableness standard because commission was not
simply interpreting statute (question of law) but applying it to the facts (mixed fact and law)
in its area of core expertise
-
-
-
Appeal allowed – existing jurisprudence didn’t decide SOR with respect to specific questions
 contextual analysis
Nature of question: statutory interpretation of the WCA  question of law
o Question at issue, meaning of “dependent” and “necessaries of life” related to general law
issues important in family law
Interpretation of provisions, which have a general meaning in the law outside of WCA, was
outside scope of specific expertise of WCB as were related general family law issues, i.e.,
meaning of loco parentis  question has broader impact outside of particular statute at issue
Privative clause did not apply to appeals on questions of law, which were provided for in the
statute
Question of law therefore, under appeal provisions of Act therefore, privative clause didn’t
apply
SOR correctness – in essence, finding issues of general law of central importance to legal system
and outside expertise of commission
- Decided same way today?
Would Elgie be decided the same way today given SCC decisions on questions of law of central
importance to the legal system post-Dunsmuir?
Canada (Attorney General) v. Mowat, 2011 SCC 53
Human Rights Tribunal interpretation of its authority to award costs under home statute  SOR
reasonableness
Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59
- Labour arbitrator’s
-
A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61
-
Authority of privacy commissioner to extend timelines stipulated in home statute
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. , 2013 SCC 34
-
Labour arbitrator found that mandatory alcohol testing imposed by employer on all
employees could not be enacted under CA’s management rights clause – policy breached
general labour law principles by failing to adequately balance privacy/safety
- NBCA applied correctness because issue “is important to public at large”
- SCC: SOR reasonableness arbitrator's “bread and butter”
o Issue is of public importance (i.e., safety in workplace) are not necessarily questions of law
of central importance to the legal system
-
All cases in which it could be argued (sort of) that interpretation of statutory provision does
not go beyond confines of particular specialized area
Alberta (Information and Privacy Commissioner) v. University of Calgary, [2016] 2 SCR 555, 2016 SCC 53
- Privacy Commissioner ordered production of documents over which UoC had claimed
Solicitor client privilege. UoC sought JR of order
- “Despite any other enactment or any privilege of the law of evidence, a public body must
produce to the Commissioner within 10 days any record or a copy of any record required
under subsection (1) or (2)”
- Issue: What was the SOR for question regarding the scope of statutory language required to
override principle of solicitor client privilege?
- SCC: potential wide application to other statutes and scope of s/c privilege typically
determined by courts  therefore of central importance and no relative expertise vis-à-vis
the courts
Other questions that the SCC has held to be of central importance:
- Scope of res judicata and abuse of process to block admin proceedings: Toronto (City) v.
C.U.P.E., Local 79, 2003 SCC 63
- Scope of Parliamentary privilege: Chagnon v. Syndicat de la fonction publique et parapublique
du Québec, 2018 SCC 39,
Likely battleground on future judicial reviews – SCC in Vavilov: “We caution, however, that this
jurisprudence must be read carefully, given that expertise is no longer a consideration in
identifying such questions”
- Categories of questions not closed, but would take something exceptional
The Vavilov Approach: Determining jurisdiction between two tribunals
Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14
- A police officer resigned rather than face disciplinary action but changed his mind and
withdrew his resignation
- Chief of Police refused to accept his withdrawal
- The officer’s union filed a grievance under the collective agreement which proceeded to
arbitration
-
-
The arbitrator concluded she did not have jurisdiction to decide the dispute since it centered
on police discipline, which was governed by the Police Act, which created an admin scheme
to deal with officer discipline
SKCA disagreed and overturned the decision
At SCC, the Court conducted its own analysis (i.e., applied correctness) and held that the
arbitrator was correct. The dispute did not arise out of the collective agreement between the
union and the City but centered on discipline, for which the Police Act provide a complete code
5 situations that rebut presumption of reasonableness:
- on the basis of legislative intent
o legislated standards of review
o statutory appeal mechanisms
- required by the rule of law
o constitutional questions
o general questions of law of central importance to the legal system as a whole
o questions regarding jurisdictional boundaries between administrative bodies
Categories not closed but would require “compelling” instance of legislative intent or situations
where the failure to apply correctness would endanger the rule of law
- Expect lawyers desperate for the correctness standard to argue here.
In short
- If the legislation expressly dictates a standard of review, apply it.
- If the matter is proceeding by a statutory appeal mechanism  Housen v Nikolaisen
standards apply:
o Questions of law: correctness
o Questions of fact and mixed fact and law: palpable and overriding error.
- If the matter is proceeding via judicial review: the standard of review will be reasonableness
unless the question is:
o Constitutional
o of central importance to the legal system
o requires the drawing of a line between two tribunals
What happened in Vavilov?
What standard of review did the majority apply?
What did the minority think of the majority opinion?
“The majority’s reasons are an encomium for correctness and a eulogy for deference.”
Why?
In Vavilov, the Supreme Court stated that its revised standard of review analysis was guided by which two
principles?
a.
The rule of law and legislative intent.
b. Deference and legislative supremacy.
c. Institutional design and relative expertise.
d. Institutional legitimacy and legislative supremacy.
2.
Which of the following best reflects the Court’s approach, in Vavilov, to determining the appropriate
standard of review?
a.
Reasonableness is the presumptive standard of review and that presumption is rebuttable
only where the legislature explicitly prescribes the applicable standard or where required by the rule
of law.
b. Reasonableness is the presumptive standard of review and that presumption is rebuttable only by a
clear indication of legislative intent or where required by the rule of law.
c. Reasonableness is the presumptive standard of review and that presumption is rebuttable only by a
statutory appeal provision or where required by the rule of law.
d. Reasonableness is the presumptive standard of review and that presumption is rebuttable only when
the matter raises a constitutional issue, an issue of central importance to the legal system as a whole,
or an issue regarding the jurisdictional lines between administrative bodies.
3.
a.
According to the Vavilov, reasonableness review should only interfere to protect:
The legitimacy, impartiality and fairness of the administrative process
b. The legality, rationality and fairness of the administrative process.
c. The institutional design choices and the intent of the legislature.
d. The rule of law and the coherence of the administrative process.
e. All of the above.
The function of judicial review is therefore to ensure the legality, reasonableness and fairness of the
administrative process and its outcomes (Dunsmuir)
4.
Ms. Singh applied, under the Municipal Government Act (MGA), for a variance to the zoning covering
her home so that she could build a garage suite. The zoning officer for the City of Edmonton denied her
application. The Subdivision and Development Appeal Board (SDAB), an administrative appeal body under
the MGA, denied her appeal. Pursuant to the terms of a statutory appeal provision, Ms. Singh appealed the
SDAB decision to the Alberta Court of Appeal. At the Court of Appeal, the parties agreed that the two issues
before the court on appeal were (1) an issue of fact and (2) an issue of mixed fact and law. Under the Vavilov
analysis, what standards of review would the Court of Appeal likely apply to each issue?
a.
b.
c.
d.
e.
The Court would review both issues for reasonableness.
The Court would review the first issue for reasonableness and the second for correctness.
The Court would review the first issue for palpable and overriding error and the second for
correctness.
The Court would review both issues for palpable and overriding error.
The Court of Appeal is not an administrative body and does apply a standard of review.
5.
In 2005, the University of Alberta accused David Smith, a lovably rogue-ish law student, of various
violations of the Student Code of Conduct. Pursuant to its policy at the time, the University published all
disciplinary accusations, including the student’s name, in the Gateway. Believing he was innocent and aghast
at the damage to his reputation before he had the opportunity to defend himself, David Smith filed a
complaint with the Privacy Commissioner of Alberta under the Protection of Personal Information and
Privacy Act (PIPA), which prohibits a public body from revealing personal information without consent
(subject to various exceptions, including disciplinary convictions). The Privacy Commissioner ordered the
University to produce all of its records regarding the matter. The University provided most of its records but
withheld several, claiming they were covered by solicitor-client privilege. Relying on a statutory provision in
the act that stated the Privacy Commissioner could compel the production of any record, “notwithstanding
any rule of the law of privilege”, the Privacy Commissioner issued a further order demanding production of
the records. The University sought judicial review of the order to the Alberta Court of Queen’s Bench. What
standard of review would the Court likely apply and why?
a.
Reasonableness because it is the presumptive standard of review and the presumption is not
rebutted by a straight forward matter of statutory interpretation
b. Correctness because the facts implicate Mr. Smith’s right to privacy, which is a constitutional issue
and, therefore, sufficient to rebut the reasonableness presumption.
c. Correctness because the matter deals with the scope of solicitor-client privilege, which is a matter
central importance to the legal system as a whole and, therefore, sufficient to rebut the presumption
of reasonableness.
d. Correctness because the matter deals with an issue of competing jurisdiction between two
administrative bodies: the University and the Privacy Commission.
6.
What fact, according to the majority’s view in Vavilov, justifies selecting reasonableness as the
starting, presumptive standard of review applicable to administrative decisions on judicial review?
a.
The relative expertise of the administrative decision makers.
b. The flexibility and efficiency of administrative decision makers.
c. The delegation of statutory authority to administrative decision makers.
d. None of the above.
7.
What best describes the majority’s reasoning for applying a correctness standard to constitutional
questions and questions of central importance to the legal system?
a.
Section 96 of the Constitution grants the courts sole and inherent jurisdiction over constitutional and
important legal questions.
b. Some legal questions require uniform, consistent and determinate answers from the courts.
c. The balance between the executive, legislative and judicial branches of government require the
courts to retain the authority to determine important legal questions.
d. All of the above.
e. Both (a) and (b) above.
8.
Following Dunsmuir, the nature of the question (i.e., whether it was an issue of central importance, a
constitutional question etc.) became the most important issue in determining standard of review. After
Vavilov, which of the following factors is likely the most important factor in determining the standard of
review?
a.
The presence or absence of a privative clause.
b. The relative expertise of the decision maker.
c. The nature of the question.
d. The presence of a statutory right of appeal.
9.
A dispute that raises an issue of “wider public concern” will be subject to review on the correctness
standard
a.
b.
True.
False.
10.
Which of the following best describes the Court’s rationale for its reconsideration of the standard of
review analysis laid out in Dunsmuir?
a.
The need to respect legislative institutional design choices.
b. The need for simplicity and certainty.
c. The need for coherence and predictability.
d. The need for rationality and fairness.
Applying the Standard of Review:
Correctness Review: Dunsmuir on correctness review:
“ [50] When applying the correctness standard, a reviewing court will not show deference to the
decision maker’s reasoning process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the determination of the decision
maker; if not, the court will substitute its own view and provide the correct answer. From the
outset, the court must ask whether the tribunal’s decision was correct.”
According to Dunsmuir, correctness review is concerned with one question: Is the decision
correct?
- There is not a range of possible acceptable interpretations or answers  there is only one
correct answer
Correctness review gives no deference to decision under review
- It means the court must perform its own analysis of the question(s) at issue
- If the court’s analysis leads to a different conclusion, the court substitutes its decision for that
of the administrative decision maker
Reasonableness Review: Background Dunsmuir
“A court conducting a review for reasonableness inquiries into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and the outcomes. In judicial
review, reasonableness is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in respect to the facts
and the law.” – BROAD -Dunsmuir explained that reasonableness based upon concept of deference, and deferential
approach:
- Recognizes “that there might be multiple valid interpretations of a statutory provision or
answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision
is rationally supported”
- “imports respect for the decision-making process of adjudicative bodies with regard to both
the facts and the law”
- Requires courts, not to submit to admin decisions, but pay “respectful attention to the
reasons offered or which could be offered in support of a decision”
In short: legislature has said admin body should make decision and court should show respect to
that choice and the body’s expertise through respectful deference, while keeping in mind court’s
role to ensure the rule of law
Sure, but how exactly do we go about applying reasonableness?
- Dunsmuir did not provide specific guidance – left to courts to determine based on broad
principles
o Courts generally found it simple to defer on questions of fact, discretion, and policy
o Questions of law and statutory interpretation proved more difficult
 May say the standard is reasonableness, but courts analysis of the issue sometimes
suggests more rigorous examination
-
Practitioner’s point of view  we looked for errors, whether of fact, law, policy, logic, etc.,
that undermined a decision’s reasoning
o Did the tribunal fail to consider or clearly misconstrue relevant evidence?
o Rely on irrelevant evidence?
o Make findings of fact or credibility clearly not supported by the evidence?
o Interpret law contrary to purpose of statute
o Fail to follow or apply past case law?
o Arrive at an outcome well outside what previous case law suggests is appropriate in similar
cases? Etc.
o Make logical errors that make the decision difficult to follow or reconcile with the evidence
Reasonableness Review: Vavilov
The SCC in Vavilov builds on the principles laid out in Dunsmuir by giving clearer directions about
how to apply reasonableness standard:
- “The approach we set out is one that focuses on justification, offers methodological
consistency and reinforces the principle “that reasoned decision-making is the lynchpin of
institutional legitimacy”
 this deference thing is fine but for decisions to be legitimate they have to be logical and
reasoned – therefore, reasonableness requires logical and reasoned decisions
 Been treated with fairness will increase perception of legitimacy
- In Dunsmuir, the court seemed to talk in lofty concepts when discussing the application of
reasonableness. Over emphasized deference before
- Vavilov brings it down to earth – reasonableness is about justification and reasoned decision
making
o Recognition that this is how courts and lawyers went about trying to apply reasonableness
following Dunsmuir  we searched for flaws in reasoning
Starting point: the written reasons for decision
Where reasons are required, they are the starting point for determining reasonableness
- The court recognizes that the duty of fairness does not require admin decision makers to
always provide reasons
However, the majority encourages them. After listing the familiar benefits of reasons, the courts
note that
- “the provision of reasons for an administrative decision may have implications for its
legitimacy, including in terms both of whether it is procedurally fair and of whether it is
substantively reasonable”
In short, they’re not always required but we encourage you to provide them anyway
“Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions
with an administrative body”
- we will give admin decisions respect and deference because of Parliamentary/Legislative
Supremacy
- “while fulfilling the constitutional role of judicial review to ensure that exercises of state
power are subject to the rule of law”
o But, the rule of law requires that the decisions must still be reasoned, understandable,
justifiable
In applying reasonableness, the court is not to decide the issue for themselves and compare to
the admin decision – that would be correctness  show deference.
Instead, the reviewing court must consider the decision made by the administrative decision
maker — including both the rationale for the decision and the outcome to which it led — was
reasonable
- That is, the Court is concerned with both the reasoning process and the outcome – an ‘key’
error in either may result in an unreasonable decision
Despite broad diversity of admin decision makers, reasonableness is a single standard
- The factual and legal context do not change the standard or the degree of scrutiny by the
reviewing court
BUT (VERY IMPORTANT): Reasonableness is contextual
- “[r]easonableness is a single standard that takes its colour from the context”
- What that means is the factual and legal context put constraints on what is reasonable in the
circumstances
o e.g., past jurisprudence from the courts regarding the definition of a particular term in a
statute places a constraint on an administrative decision maker when considering the
meaning of that same term – any departure from the court’s reasoning would have to be
well-explained.
- The legal and factual constraints essentially define playing field of what can be reasonable in
the circumstances, but they do not alter how much scrutiny is given to a decision
Ok, but what does all that mean and how do we, practically, apply it?
Reasonableness Review
Step 1: Examine the reasons provided with “respectful attention”  seeking to understand the
reasoning process followed by the decision maker
Step 2: is the decision based on internally coherent (i.e., logical) and rational chain of analysis?
Step 3: is the decision justifiable given the facts and the law that constrain the decision maker
(i.e., given the factual and legal context)?
NOTE: When the decision is being reviewed for reasonableness. the onus is on the challenging
party to prove that it the decision is not reasonable:
Step 1: Examine the reasons provided with “respectful attention”
Reasons read with sensitivity to administrative setting
- Need not include all the legal arguments, statutory provisions, jurisprudence or other details
a reviewing judge would have preferred
o admin justice is not the same as judicial justice
- Be attentive for application of dm expertise – may explain why certain issues dealt with in
practical or summary way (i.e., in that admin context, parties may take point for granted)
- Read decision in context of the record (i.e., evidence, transcripts, arguments) and history of
proceedings – may explain omissions etc.
o though decision must still be justified and intelligible to person subject to it
- Where respectful reading ends: Court – generally - cannot fill in its own reasons for an
outcome where there are fundamental gaps or unreasonable chain of analysis
In short, court must try to understand why the decision was made, not engage in a line-by-line
search for error.
Step 2: is the decision based on internally coherent (i.e., logical) reasoning (i.e., rational chain
of analysis)?
Not a line by line treasure hunt for error - but must be able to trace reasoning: Does the decision
get from A to B in a logical, reasoned manner?
- Simply restating arguments of the parties, some statute, and then a conclusion is not typically
enough
- Reasoned decisions will usually include findings of fact, inferences and application of law.
- A decision will be unreasonable if
o the reasons for it, read holistically, fail to reveal a rational chain of analysis
o if they reveal that the decision was based on an irrational chain of analysis
o if the conclusion reached cannot follow from the analysis undertaken
o if the reasons read in conjunction with the record do not make it possible to understand
the decision maker’s reasoning on a critical point
o if it contains logical fallacies, such as circular reasoning, false dilemmas, unfounded
generalizations or an absurd premise
Step 3: is the decision Justifiable based on legal and factual constraints?
For example, a reasonable disciplinary penalty for professional misconduct in a given case must
be justified according to the types of penalties prescribed by the relevant legislation, the nature
of the underlying misconduct, and the precedents based on similar misconduct.
Factual/legal context
- Governing statutory scheme
o Must act within limits of statutory authority delegated and follow definitions, formulas,
that apply to decision making authority
 Certain language indicates broader discretionary authority (i.e., in the public interest,
may, etc)
o discretionary decision must comply with statutory purpose/rationale
Other statutory or common law
- Prior interpretations of same or similar statutory provisions should be followed, if binding, or
a reasonable explanation provided for why they cannot be followed
- Similarly, common law and equitable concepts should be followed but can be adapted for
administrative context (i.e., Nor-man) and can be an error to apply concepts without adapting
for admin context.
- International law may also impose a constraint – even if not ratified, canada’s international
obligations may help inform whether a decision is reasonable
Principles of statutory interpretation
- Modern principle of statutory interpretation – look at ordinary meaning of provision in light
of surrounding statutory language and statutory purpose
- Some statutory provisions may have only one reasonable interpretation (i.e., unambiguous)
Factual/Legal context, cont.
- Evidence before the decision maker (important one)
o Court not to re-weigh the evidence (Khosa, Dr Q)
o Still, factual conclusions must be justified in light of evidentiary record
 Did the DM take into account irrelevant evidence (e.g., Baker) or fail to account for
relevant evidence?
Submissions of the parties
- Don’t have to respond to every argument but should show that grappled with central
arguments, otherwise could argue not alive to issues
Past practices/decisions (important one)
- Admin DMs not bound by their own previous decisions but consistency important. Deviation
from longstanding practice should be justified and if it cannot, the decision will be
unreasonable
- Admin DM’s will be bound by applicable court precedents addressing same issue – unless
distinguishable – would have to justify deviation
Factual/Legal context, cont.
Impact of the decision on the affected individual
- if a decision has particularly harsh consequences for the affected individual, the decision
maker must explain why its decision best reflects the legislature’s intention.
o This includes decisions with consequences that threaten an individual’s life, liberty, dignity
or livelihood
- Not heightened standard of reasonableness but recognition that when consequences are
severe, reasons must justify the decision while demonstrating awareness of those
consequences
-
Not all of the legal and factual constraints mentioned are relevant in every case
Which are relevant/paramount is often based on the nature of the issue and questions under
review before the Court
Reasonableness Review: Factual/evidentiary questions
Khosa, 2009 SCC 12 : Deals with a review of a decision made by Immigration Appeal (IAD)
- Khosa immigrated to Canada with his family in 1996, at the age of 14
- In 2002, he was found guilty of criminal negligence causing death (killed a person while driving
during a street race) and a valid removal order was issued to return him to India
- Appealed order arguing for relief based on H&C considerations
- IAD applied and weighed relevant factors based on evidence and majority in clear reasons
denied appeal
- Placed emphasis on Khosa’s continuing denial that he was racing at the time  said it
undercut his obvious remorse and “possibility for rehabilitation” somewhat by showing a
“lack of insight”
On appeal, FCA applied reasonableness standard and allowed Khosa’s appeal
- Issue before the court was whether the IAD failed to properly apply tests to the evidence.
- FAC held that IAD fixated on lack of admission to street racing when considering “possibility
of rehabilitation” factor in analysis and failed to explain why it came to contrary conclusion
on this factor to the judge in the criminal case – FAC overturned IAD decision
SCC reinstated IAD decision
- Function of court on reasonableness review is not to reweigh the evidence before the tribunal
o Minority believed too much emphasis placed on lack of insight and would have upheld FCA
- Reasons of both majority and minority of IAD were clear but disagreed over factual issue of
Khosa’s remorse and rehab
o This type of factual dispute should be resolved by IAD, not the courts
- IAD decision was transparent and intelligible
o Considered relevant factors and weighed them based on evidence before it
- “whether we agree with IAD decision or not is beside the point”
o Parliament left decision to IAD and it satisfied itself factors did not justify relief
o Deference recognizes range of possible outcomes and while we might have weighed
factors differently, tribunal decision was not outside of range of reasonable, rational
outcomes
- IMPORTANT - LEGAL/FACTUAL CONTEXT RE DETERMINING WHAT IS REASONABLE
o When nature of the issue under review involves weighing of evidence or balancing of
factors when applying that evidence, courts only interfere when the evidence does not
provide reasonable justification for the conclusion.
Dr Q v College of Physicians & Surgeons, 2003 SCC 19
- Psychiatrist accused of inappropriate sexual relationship with patient. There was evidence of
the relayionship.
- Context:
o professional discipline hearing before quasi-judicial tribunal
o Nature of question at issue: whether the evidence revealed clear and cogent proof of guilt
o required tribunal to weigh evidence and credibility
- SCC: on JR, QB failed to do a SOR analysis and reviewing judge inappropriately reviewed for
correctness. CA erred in upholding QB
-
SCC: Reviewing judges analysis of corroborative evidence demonstrated a correctness
approach, as opposed to reasonableness required in this context
- When the SOR is reasonableness, “the reviewing judge’s role is not to posit alternate
interpretations of the evidence…it is to determine whether committee’s decision is
unreasonable”
o Judge had posited an alternate explanation to evidentiary discrepancy re # of lunch
meetings
- When applying reasonableness, “the reviewing judge’s view of the evidence is beside the
point; rather, the reviewing judge should have asked whether the [tribunal’s]
conclusions…had some basis in the evidence”
o Judge had dismissed the complaint’s ability to describe certain distinct bodily markings as
nothing more than evidence a surgical nurse could recount well bodily descriptions of scars
that Dr Q had provided (really?)
-
QB judge dismissed Tribunal’s finding that a letter sent by DR. Q to complainant suggested
sexual relationship
o “While there is no doubt that for many the wording of the letter is such as to raise a
suspicion or question…it is, in my view, not clear and cogent evidence”
- SCC: if there’s no doubt letter could be interpreted that way, how could tribunal’s finding be
unreasonable
- Question is whether the decision is reasonable based upon evidence before the tribunal 
Reviewing judges’ preferred view of the evidence is irrelevant
- IMPORTANT – RELEVANT CONTEXT IN DETERMINING WHAT WAS REASONABLE
o How courts handle review of evidentiary questions - Under reasonableness standard,
court does not re-weigh the evidence  it’s whether the decision is reasonable based
upon the evidence.
Reasonableness Review: Statutory Interpretation/discretion
Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2
- Company challenged municipal tax bylaw because it imposed a significantly higher property
tax burden on industrial property uses as compared with residential uses (industrial rates had
increased faster to protect legacy residential owners from large increases in PT due to fast
rising property values in this scenic area)
- Company used very few municipal services as it had its own sewer and water systems and
deep water port (received 1.5 M in services; paid $6.7 M in taxes)
- Company sought judicial review of tax bylaws – seeking a declaration that bylaw was
unreasonable and therefore ultra vires
- Argued that under the legislation (Community Charter), property taxes could only be
reasonably determined based on a “Consumption of Services Model”
- The District argued that property tax rates could be based not only on consumption but also
on broad array of social, economic and demographic factors arising from community as a
whole
- JR dismissed at all Court levels
- Parties agreed reasonableness was the appropriate SOR
-
-
-
-
-
-
-
-
SCC emphasized that reasonableness is contextual – nature of the issue: legislative intent re
scope of power conferred on municipality to make bylaws
SCC looked to past precedents - how courts have historically approached review of municipal
bylaws  they point to what is reasonable in cases of muni bylaws passed in democratic
manner
Past precedents indicate municipalities typically given broad stat discretion to pass bylaws;
task is legislative rather than adjudicative and involve array of social, economic and political
factors
democratic institutions elected to serve constituents, which courts must respect
Historically, bylaws overturned only if “aberrant”, “manifestly unjust”, “made in bad faith or
for improper purpose”, or if “no reasonable body could have adopted them”
Reasons for bylaws not required – have to be debated, etc.
Indications of context defines breadth of possible discretion  legislation still ultimately
dictates what is unreasonable in the specific circumstances
Applicable test to municipal bylaws
o only if the bylaw is one no reasonable body (informed by the relevant social, economic,
and political factors) could have enacted will the bylaw be unreasonable (para 24)
Section 197 of Community Charter allowed municipalities to set different rates for different
property classes
o Unfettered discretion to establish tax rates – no requirement to keep rates applicable to
different classes within a particular range (used to be but was removed)
o Nothing indicating tax rates limited to consumption considerations
Bylaw was not unreasonably partial to residential tax payers – council entitled to consider
multiple interests beyond consumption
Tax burden undoubtedly high but Council recognized tax bylaw too high on industrial uses
and had already reduced them by 10% over last 5 years
o However, Council had a 5-year plan working on a more equitable tax scheme over time
Bylaw did not constitute a decision no reasonable Council could have made – fell within range
of reasonable outcomes
SCC has given wide latitude on discretionary decisions by non-adjudicative bodies generally,
e.g., ministerial decisions on extraditions
FACTORS DEFINING REASONABLENESS: statutory wording and past case law re scope of
discretion given to municipalities in enacting bylaws.
Reasonableness Review
Khosa, Catalyst, and Dr Q examples of the SCC applying reasonableness to questions of fact,
discretion/policy – at most, could be described as mixed fact/policy and law
- Khosa: IAD applying its expertise in H&C exemptions, which it deals with regularly, by
weighing evidence against est. factors
- Catalyst: Democratically elected city council enacting taxing bylaw under permissive
legislation based on social, political, economic factors
-
Dr Q: Pro Reg tribunal weighing evidence and credibility of witnesses in determining whether
sufficient proof to convict of disciplinary offence
Reasonableness review requires court to examine how factors were weighed based on the
evidence and to ensure there is reasonable basis for conclusions, but not to reweigh them or
apply preferred interpretations
Reasonableness Review: Discretionary Decisions
- Discretion: a legal power to choose a course of action from a range of options, including, in
some cases, inaction
o Grant and breadth of discretion dependent on statutory language
- Traditional common law doctrines for attacking discretionary decisions, included:
o Bad faith
o Acting for an improper purpose – not contemplated by statutory grant
o Considered irrelevant factor (closely related to improper purpose)
o Failed to consider relevant factor
These doctrines define reasonableness for broad based discretionary decisions – such as
ministerial decision in Baker to deport.
Roncarelli v Duplessis, [1959] SCR 121
Premier Duplessis ordered liquor licensing commission to revoke license held by Mr. Roncarelli,
a restaurant owner, because he had bailed out JWs who had distributed religious pamphlets in
violation of municipal bylaws
Licenses could be revoked at discretion of the commission, but Rand J. held discretion limited:
-
-
“the grounds for refusing or cancelling a permit should unquestionably be such and such only as are
incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those
purposes and those only. A decision to deny or cancel such a privilege lies within the "discretion" of the
Commission; but that means that decision is to be based upon a weighing of considerations pertinent to
the object of the administration.
In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is
that action can be taken on any ground or for any reason that can be suggested to the mind of the
administrator; no legislative Act can, without express language, be taken to contemplate an unlimited
arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or
purpose of the statute. Fraud and cor­ruption in the 'Commission may not be mentioned in such statutes
but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging
public duty; there is always a perspective within which a statute is intended to operate; and any clear
departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be
refused a permit because he had been born in another province, or because of the colour of his hair? The
ordinary language of the legislature cannot be so distorted.”
Reasonableness Review: Questions of Law
Interpretation of a collective agreement
CEP Union of Canada, Local 30 v Irving Pulp & Paper, 2013 SCC
- Mandatory random alcohol testing policy unilaterally implemented by employer in safety
sensitive workplace under management rights clause
o “The union recognizes and acknowledges that it is the right of the Company to operate
and manage its business subject to the terms and provisions of this agreement”
-
Union grieved policy alleging it was an unreasonable exercise of management rights as it
unduly interfered with employees’ privacy
- Arbitrator applied balancing of interest approach from arbitral jurisprudence that had
resulted in following approach to alcohol/drug testing
- Employers can test individuals after an accident or near miss, based upon reasonable
suspicion of impairment at work, or returning to work after treatment for substance abuse
(in which case it can be random testing)
- Random testing is only reasonable if employer can demonstrate reasonable cause, such as a
general problem of substance abuse in the workplace
On JR, QB overturned arbitrator and CoA upheld QB. Majority (6-3) of SCC reinstated arbitrator’s
decision as reasonable
For both the majority and minority, the key contextual factor against which to evaluate the
reasonableness of the arbitrator’s decision was prior arbitral case law
- “the analytical framework for determining whether an employer can unilaterally impose
random testing is determined by the arbitral jurisprudence”
- “the arbitral consensus, which was carefully applied by the Board, helps inform why its
decision was reasonable”
- “arbitral precedents in previous cases shape the contours of what qualifies as a reasonable
decision in this case”
Majority:
- Arbitrator reviewed and “faithfully applied” arbitral consensus
- Confirmed policies based on management rights must be reasonable if discipline can result
from breach  flows from requirement that employers must demonstrate all discipline is
reasonable
- Arbitral case law demonstrates what a reasonable policy looks like in safety sensitive
workplace:
o Employers can test individuals after an accident or near miss, based upon reasonable
suspicion of impairment at work, or returning to work after treatment for substance abuse
(in which case it can be random testing)
o Random testing is only reasonable if employer can demonstrate reasonable cause, such as
a general problem of substance abuse in a safety sensitive workplace the workplace
- No cases have upheld random testing without a demonstrated problem of substance abuse
in workplace, even in highly safety sensitive environment  alcohol/drug testing is highly
intrusive so must demo need
- Board’s conclusion that 8 incidents of impairment in the workplace over a 15 year period
(never linked with a safety incident) was insufficient to show a general problem was
reasonable, as was its conclusion that employer failed to present convincing evidence of
deterrence
- When balancing that evidence against invasive testing that undermines autonomy and
personal liberty, the Board came to a reasonable conclusion that policy was unreasonable
- KEY FACTOR DEFINING REASONABLENESS: Prior labour arbitration cases that had set out a
test for when drug and alcohol testing would be reasonable.
Reasonableness Review: Summary
Reasonable decision is one based on both (1) internally coherent reasoning and (2) justified based
on legal and factual context and constraints that bear on decision
- Legal and factual context and constraints change with the nature of the issues and questions
before the Court.
Onus is the on challenging party to show decision is unreasonable
- Shortcomings must be more than superficial or peripheral – must “central” or “significant” to
reasoning process,
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20
“A decision will be unreasonable only if there is no line of analysis within the given reasons that could
reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of
the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up
to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court
must not interfere … This means that a decision may satisfy the reasonableness standard if it is supported
by a tenable explanation even if this explanation is not one that the reviewing court finds compelling …”
Administrative Tribunals and the Constitution:
Tribunals’ Constitutional Jurisdiction: Background
Constitutional Supremacy clause:
- 52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of
no force or effect
Great, but who gets to determine constitutionality?
- What happens if an admin decision maker is of the opinion their statute or a provision of it
violates the Charter?
- Can they decide not to follow it or must they implement an unconstitutional provision?
Remedial Clause of the Charter
- 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
- (2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
Are admin decision makers courts of competent jurisdiction?
Traditionally, courts had exclusive jurisdiction over constitutional questions
Problem: if only the courts can consider constitutional issues, administrative bodies would have
to pause proceedings and direct the parties to court whenever a constitutional question arises
(i.e., bifurcate proceedings)
- Undermines efficiency legislatures seek in setting up admin bodies
- Prevents public from accessing their charter rights where they most often meet state
authority: administrative proceedings
Four questions to consider:
(1) Are admin decision makers bound by the Charter when exercising statutory authority?
- Yes, exercises of statutory discretion bound by “charter values” (Slaight)
a. Makes sense: Legislature cannot delegate a power it does not possess (i.e., power to
violate the Charter)
b. If there weren’t bound by the Charter, then legislatures could create arm’s length
admin agencies capable of side-stepping charter protections
Courts struggled more with these two traditionally court centric powers:
(2) Do admin decision makers have the jurisdiction to apply the Charter and decide other
constitutional challenges to legislative validity?
(3) If so, can they grant Charter and constitutional remedies?
(4) What standard of review would a court apply to admin tribunal constitutional decisions?
Q’s #2 & # 3
Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854
- Airline pilots wanted to challenge mandatory retirement provisions in their collective
agreement
o CHRA contained a provision that allowed industry norms to prevail for mandatory
retirement ages despite it being discrimination based on age - pilots argued that
provision violated s. 15 of the Charter
- Canada Human Rights Commission screens and investigates complaints and then sends to
Tribunal if warranted
o Dismissed complaint because of industry norms provision
- Pilots sought JR and argued that Commission had jurisdiction to consider Charter issues and
to not follow a provision if it violated the Charter
- Majority (4-2) of the SCC held that CHRC could not consider constitutionality of its own Act
- Majority held that while the CHRA granted CHRC authority to answer limited questions of
law (i.e., interpret and apply the act), it did not grant the CHRC authority to answer general
questions such as whether provisions of its act violated the Charter.
o Parliament intended to reserve those questions for Courts.
- Bmac (with L’Hureaux Dube) in a strongly worded dissent sums up the problems with the
majority approach:
-
[70]
…the majority approach depreciates the language of s. 52 of the Constitution
Act, 1982, makes it more difficult for the Human Rights Commission to fulfil its mandate,
and places burdens on the victims of discrimination in their fight for equality that
Parliament cannot have intended. If this is the clear effect of the Act and the law, then
these results, however illogical, unjust and inconvenient they may be, must be accepted.
But, unlike the majority, I do not find this to be the clear effect of the law. In my view,
every tribunal charged with the duty of deciding issues of law has the concomitant power to
do so. The fact that the question of law concerns the effect of the Charter does not change
the matter. The Charter is not some holy grail which only judicial initiates of the superior
courts may touch. The Charter belongs to the people. All law and lawmakers that touch the
people must conform to it. Tribunals and commissions charged with deciding legal issues
are no exception. Many more citizens have their rights determined by these tribunals than
by the courts. If the Charter is to be meaningful to ordinary people, then it must find its
expression in the decisions of these tribunals.
Tribunals’ Constitutional Jurisdiction:
R. v. Conway, 2010 SCC 22
- Mr. Conway was found not guilty by reason of insanity (Not Criminally Responsible “NCR”)
of sexual assault with a weapon.
- The Ontario Review Board is statutorily empowered, under the Criminal Code, to annually
review detention of all NCR patients
- At his annual review, Conway applied for an absolute discharge under s. 24(1) of Charter
claiming living conditions infringed his rights under the charter ss. 2(b), (d), 7, 8, 9 and 15(1)
o Complaints: construction noise, staff interruptions of his phone calls, failure to provide
for his needs/respect his rights, failure to provide him with psychological counselling, etc.
- ORB held Conway was a threat to public safety, which made him an unsuitable candidate
for an absolute discharge
o Under the Criminal Code NCR provisions, an absolute discharge is not available to any
patient who is a “significant threat to the safety of the public”
- The ORB’s decisions were based upon its statutory authority. It held that it had no
jurisdiction to consider the Charter arguments and grant charter remedies.
- Court of Appeal upheld ORB decision finding that it was not a “court of competent
jurisdiction” for the purposes of granting Charter remedies under s. 24(1)
- Accused appealed ORB’s remedial jurisdiction to SCC
- An admin decision maker will have the jurisdiction to consider the Charter, including the
validity of its own legislation, and to grant charter remedies when:
o (1) the enabling statute grants the admin decision maker the authority, express or
implied, to decide questions of law, and
o (2) the legislature has not withdrawn, expressly or through implication, the specific
authority to consider Charter and constitutional questions
- Important: Court will no longer distinguish between general and limited questions of law, as
the majority did in Cooper.
- If they can any issues of law, such as interpreting home statute, they can decide issues of
common law and stat interp, so why not Constitution?
(1) the enabling statute grants the admin decision maker the authority, express or implied, to
decide questions of law, and
- Some statutes include express provisions: e.g., “the tribunal has the jurisdiction to consider
all questions of fact and law”
- If not express authority to consider question of law, how do you know whether it’s implied?
- Does tribunal need to answer questions of law to fulfill its statutory mandate/purpose?
o e.g., human rights tribunal required to determine what constitutes discrimination
- The interaction of the tribunal in question with other elements of the administrative/legal
system
o e.g., is there a statutory appeal on a question of law, which would suggest authority to
decide questions of law
- Whether the tribunal is adjudicative in nature: helps inc legitamacy
o Practical considerations, including the tribunal’s expertise/capacity to consider questions
of law
(2) the specific authority to consider Charter and constitutional questions has not been clearly
withdrawn
- Some statutes may give authority to determine questions of law but expressly withhold
constitutional authority
o e.g., “the Surface Rights Board may not consider Charter issues or questions regarding
the division of powers”
- Some provinces, including Alberta, have enacted statutes expressly limiting which admin
decision makers can decide constitutional questions
In Alberta, the Administrative Procedures and Jurisdiction Act expressly withdraws all
constitutional jurisdiction from admin decision makers, except those expressly listed in its
regulation: APJA, s 11
- Lack of jurisdiction
o 11 Notwithstanding any other enactment, a decision maker has no jurisdiction to
determine a question of constitutional law unless a regulation made under section 16
has conferred jurisdiction on that decision maker to do so.
o They take the power away, unless validly given it back
Designation of Constitutional Decision Makers Regulation, Alta Reg 69/2006 includes list of 10
tribunals designated as Constitutional Decision Makers
- Includes: Law Society, Labour Arbitrators, Law Enforcement Review Board, and WCB.
Tribunals’ Constitutional Jurisdiction: R. v. Conway
So, Conway tells us that if decision maker has authority to answer questions of law and there
is no withdrawal of charter/constitutional jurisdiction, they have the authority to:
- (1) Consider and apply the charter and the validity of legislation under section 52
o Important: admin decision makers can conclude that a provision violates the charter and
refuse to follow it, but cannot strike it down like a court
(2) Grant Charter remedies under section 24  subject to what limits?
Once its clear decision maker has jurisdiction to grant charter remedy, question becomes
whether they can grant remedy sought by the party?
Key question: did the legislature intend the decision maker to grant the remedy sought?
Does the remedy fit with statute’s purpose/intent
- In Conway, he sought absolute discharge even though he was designated a danger to public,
which conflicted with public safety purpose of statute
Does the remedy sought conflict with express remedial powers under the act?
- In Conway, the ORB was statutorily authorized to only give absolute discharges to nondangerous offenders, but he was designated as such, so confliction
- Conway also wanted a medical treatment order, but such orders were expressly forbidden
by the Criminal Code and fell within exclusive authority of provincial health body
o This remedy Conway was seeking wasn’t available under the ORB statutory regime!
Really asking: Does it seem like the s 24 remedy sought fits within statutory regime and the
purpose for which authority was granted to admin decision maker?
- In Conway, the remedies sought were not compatible
In short, determining whether an admin DM has jurisdiction to apply and consider the
Charter and to grant charter remedies depends on:
(1) Whether statute grants express/implied authority to answer questions of law, and
(2) That authority has not been otherwise expressly or implicitly withdrawn
When a Charter remedy is sought
(3) is the remedy sought compatible with DM’s statutory remedial authority?
Tribunals’ Constitutional Jurisdiction: Standard of Review
What types of constitutional issues arise in admin context that a court will review?
- Review of tribunal’s decision regarding its jurisdiction to decide constitutional issues
(CORRECTNESS)
o Do we have authority to decide whether leg is valid or to grant Charter remedy (e.g.,
Conway)?
- Review of tribunal’s conclusions on validity (CORRECTNESS)
- Review of tribunal’s decision to award a particular constitutional remedy (CORRECTNESS)
o Whether that award is appropriate in factual circumstances (seems like it could be
reasonableness)
- Review of a discretionary tribunal decision that the applicant claims violates their charter
rights (DORÉ tells us REASONABLENESS)
Doré v. Barreau du Québec, 2012 SCC 12
- Judge repeatedly and personally criticized Dore, a lawyer, who was before him in court
- D wrote an angry and personally insulting private letter to the judge immediately after court
– Chief Justice forwarded to Law Society, initiating a complaint
-
-
Disciplinary counsel of Law Society reprimanded D suspended his ability to practice 21 days
for violating requirement that lawyers “must bear the stamp of objectivity, moderation and
dignity”
D appealed to the Professions Appeal Tribunal and argued disciplinary finding impaired his
freedom of expression rights under section 2(b) of the Charter
Tribunal found decision to sanction was minimal restriction on his freedom of expression
On JR, Superior Court and then Court of Appeal upheld Tribunal decision after finding a
violation of 2(b) but concluded it was justified under Oakes test – D appealed to SCC
-
Issue: Do we perform an Oakes analysis, which was developed for legislation, to determine
whether an admin decision is justified, or an administrative law reasonableness analysis
based on tribunal’s application of charter values
o SCC had favoured Oakes pre-Dunsmuir, but inconsistent since
- Court held that there was no reason not to apply reasonableness to a discretionary admin
decision within tribunal’s mandate
- Tribunal not determining scope of Charter right but whether alleged infringement was
proportional in factual circumstances within their mandate  relative expertise in their
statutory area
- Oakes fits better to statutory validity of a provision as opposed to review of an adjudicated
decision
o How do we determine if aim of a single disciplinary decision is pressing and substantial
and who would argue that it was (i.e., no gov’t to defend its legislation)?
o Modified Oakes test that removes step 1 or reasonableness analysis that recognizes
Charter values?
As we will see, reasonableness is informed by the context. In Charter context:
- a decision dealing with infringement of Charter right will be reasonable if it proportionally
balances the Charter right with administrative regime’s statutory objectives
- Unreasonable if it disproportionately infringes on Charter right
-
Reasonableness in this context, like Oakes, centres on proportionality – decision can
interfere with the Charter no more than is necessary given statutory objectives (which are
presumably constitutionally valid)
Disciplinary provision at issue recognized lawyers need to remain civil, even under duress –
essential for the smooth functioning of the justice system
- still have right and obligation to criticize judges, but must do so civilly
- part of enjoying the privileges of being a lawyer is accepting some limitations
Decision recognized lawyers still entitled to fully express themselves and vigorously defend
interests of client, but must do so civilly even under criticism
- Decision that the letter went too far was reasonable in the circumstances
Tribunals’ Constitutional Jurisdiction
1. Are administrative decisions bound by the Charter?
Answer: Yes, they are bound by Charter values.
2. (a) Do administrative agencies have jurisdiction to decide Charter or other constitutional
challenges to validity of legislation that they administer, and if so, when?
- Answer: Yes, if they are authorized, expressly or implicitly, to answer questions of law and
there is no express or implicit removal of that jurisdiction by statute
-
(b) When an agency has constitutional jurisdiction, can administrative agency grant
constitutional remedies, and can an admin tribunal ever be a court of competent
jurisdiction for the purposes of s. 24(1), the case specific remedy provision of the Charter?
Answer: Yes, if they are authorized, expressly or implicitly, to answer questions of law and
there is no express or implicit removal of the jurisdiction by statute
3. What standard of review applies when an admin agency makes a pronouncement on a
constitutional question or provides a constitutional remedy?
- Answer: Correctness but determination of whether a discretionary administrative decision
(ie., professional discipline) would infringe a charter right in the circumstances will,
according to Doré, be reviewed for reasonablenes.s
Determining the Standard of Review: 2018 Final Exam
Brenda Jones is a cable install and repair technician in Edmonton, AB. From 2008 to 2013, Brenda worked for Netfilms
Inc. as an employee. However, in 2010, Netfilms decided to restructure its operations. In doing so, it encouraged its cable
technicians to become independent contractors rather than employees. As an independent contractor, Brenda’s service
contract with Netfilms stipulated that she was required to supply her own tools, vehicle, and insurance and then invoice
Netfilms for her completed work. While the service contract guaranteed Brenda a minimum amount of work, it also set a
maximum. The service contract also stated that Ms. Jones was not required to provide services exclusively to Netfilms.
Nonetheless, Netfilms accounted for 70% of Brenda’s income. The remaining 30% came from services Brenda provided
for Webflix Ltd., Netfilms’ largest competitor.
In January 2015, Netfilms adopted a random drug and alcohol testing policy. The policy required all cable technicians
operating under a service contract to submit to random drug and alcohol testing after a safety incident or when randomly
selected to do so. If testing revealed the presence of alcohol or drugs in the system, or if the cable technician failed to
provide a sample for testing, the zero-tolerance policy stipulated that the service contract would be terminated
immediately.
On April 30, 2016, Brenda was randomly selected to provide a sample for testing under the drug and alcohol testing
policy. Prior to providing a sample, Brenda advised Netfilms Inc. that she smoked marijuana daily to help manage the
symptoms associated with Multiple Sclerosis (MS), which she had been diagnosed with several years earlier. The
marijuana was prescribed by her doctor and the prescription dictated that she consume it every night before bed, in part
to avoid any intoxicating effects while at work. Nevertheless, on May 3, 2016, Netfilms advised Brenda that her drug test
had revealed the presence of marijuana in her system and that her service contract was terminated with immediate effect.
Shortly after the termination of her service contract, Brenda filed a complaint with the Alberta Human Rights Commission
alleging that Netfilms discriminated against her when it terminated her employment based upon a physical disability.
Following an investigation, the Commission referred the matter for hearing before a Human Rights Tribunal.
The Human Rights Commission operates under the Alberta Human Rights Protection Act, which includes the following
relevant provisions:
3 The purpose of the Commission and its tribunals is to forward the principle that all persons are equal without
regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental
disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.
9 No employer shall discriminate against any person with regard to employment because of the race, religious
beliefs, colour, gender, gender identity, gender expression, physical disability … [etc.]… of that person.
11 An otherwise discriminatory action will be not considered a violation of this Act if the action was reasonable
and justifiable in the circumstances.
23 A human rights tribunal may, if it finds a complaint has merit, order the offending party to cease its
discriminatory actions, compensate the victim, or take any other action the tribunal considers proper in the
circumstances.
27 A decision or order of a tribunal under this Act shall not be questioned or reviewed in any court.
Following a full hearing on the matter, the Human Rights Tribunal issued its decision, which read in relevant part as
follows:
The first question we must answer is whether Netfilms was an “employer” under section 9 of the Act. While the common
law concept of employment does not include true independent contractor relationships, several recent human rights
decisions conclude that the definition of “employer” within human rights legislation should be more flexible to give the
broadest possible application to the important rights protected by the Act. As such, those decisions held that the
definition of employer should include “near employment” relationships, including independent contractor relationships,
when the balancing of three factors suggest the relationship looks more like an employment relationship rather than a
business relationship: (1) ownership of tools; (2) opportunity for profit/risk of loss; and (3) an exclusive relationship
between the contracting parties. We agree with this interpretation.
While Ms. Jones owned her tools and her vehicle, she lacked true opportunity for profit because Netfilms set a cap on the
amount of work she could provide for them. Although Ms. Jones was not in an exclusive relationship with Netfilms, it is
close enough and, in our opinion, a person suffering from MS should not lose the protection of Act simply because she
received 30% of her income from Netfilms’ competitor.
Netfilms conceded that it discriminated against Ms. Jones when it terminated her contract for taking a medication
prescribed to treat her MS, a physical disability. However, Netfilms argued that its discrimination was justified by
reasonable safety concerns: the need to prevent Ms. Jones from injuring herself, its customers, and the public while
operating a vehicle under the influence of marijuana. The evidence before us indicated that if Ms. Jones took her
medication as prescribed, she presented no increased risk to safety. We conclude that Netfilms’ discrimination was not
reasonable or justified in the circumstances. NetFilms is ordered to reinstate Ms. Jones service contract.
QUESTION 1: 32 Points
Netfilms would like to challenge the decision of the Human Rights Tribunal and has retained you for advice on its options.
Advise Netfilms on the legal process it can use to challenge the decision of the Human Rights Tribunal and the issues and
arguments that would arise in such a challenge and give your opinion on the likely outcome. Do not address any issues of
procedural fairness or any constitutional issues in answering Question 1.
QUESTION 2: 10 Points
After reviewing your opinion, the CEO of Netfilms, Tim Jobs, recalled some additional details that could be relevant to a
potential challenge. During a break in the hearing before the three-person Human Rights Tribunal, Mr. Jobs overheard the
Chair of the Tribunal, Ms. Smith, telling one of the other tribunal members that she owned a significant amount of stock in
Webflix Inc., Netfilms direct competitor. Mr. Jobs, concerned that media coverage of an adverse decision could depress
Netfilms stock price while increasing the stock price of Webflix, told the lawyer representing Netfilms at the hearing, Bob
Davis, what he had overheard but Mr. Davis decided not to act on the information during the hearing. What additional
ground(s) of review are raised by this new information and how would a reviewing body analyze the issues and
arguments that are likely to arise and what would it likely decide?
QUESTION 3: 6 Points
Assume that section 24 of the Act includes the following provision allowing an appeal to an independently staffed and
constituted Human Rights Appeal Board:
24 A decision or order of the Human Rights Tribunal may be appealed to the Human Rights Appeal Board
(HRAB), which has the authority to hear and decide appeals on all questions of law and fact and to affirm, rescind,
or vary the order or decision
After receiving the Human Rights Tribunal decision, Netfilms believes that an appeal to the HRAB would inevitably result
in the same unjust outcome. As such, it instead instructs you to file an Originating Application for Judicial Review of the
Human Rights Tribunal decision. What is the most likely outcome of that application for judicial review, what factors
would the court consider in reaching its decision, and what policy concerns would animate it?
Question 1: (3 Parts)
1 "Advise Netfilms on the legal process it can use to challenge the decision”
-
The legal process is Judicial Review
2 “and the issues and arguments that would arise in such a challenge” 3 “give your opinion on the likely outcome”
-
Asking what Standard of Review would apply?
Not a procedural fairness or constitutional issue, as stated in the Q
Thus, leaves us with Substantive Review:
o The first issue with Substantive Review is to find out the Standard of which one is doing
the review
Standard of Review what are the issues?
What issues are raised by Tribunal’s decision regarding Ms. Jones’ HR complaint?
- The issues are laid out in the Q by the reasons of the tribunal: Reasons:
1. Definition of ‘employer’ under the Act: Was Ms. Jones an employer under the Act
2. Whether Ms. Jones was an employee in the circumstances
3. Whether discrimination was justified in the circumstances
Once you know the issues, practically speaking, what is the first step in determining the likely SoR?
-
Review the Act for a statutory appeal mechanism. Does the Act include a stat appeal
mechanism?
o No appeal mechanism
- In fact, what does the Act say about the Court’s role?
o It includes a privative clause precluding review s.27
What does the lack of stat appeal mean for the SoR under the Vavilov approach?
- Any challenge to the Board’s decision must go via judicial review to the ABQB
- On Judicial Review, the presumptive SoR is reasonableness, Vavilov.
What would rebut the presumption of reasonableness?
- An express statutory provision proscribing correctness, NOPE
o e.g., “Upon judicial review of any matter arising from this act, the court shall review for
correctness”
-
Rule of law questions: Do any of the issues invoke one of the rule of law questions?
o Constitutional Q, NOPE
o Q regarding competing jurisdiction boundaries between two admin bodies, NOPE
o Q of central importance to the legal system as a whole, Yes
You could argue that the definition of employer under the Act is a question of central
importance, because it involves the definition and application of a general, common law
concepts which are important in the legal system (See Elgie v Alberta, 2009 ABCA 277 from last
week) in an area involving quasi-constitutional rights (Courts have traditionally struggled with
showing HR Tribunals deference).
Against: While it is a common law definition/concept, the tribunal is adopting it for use in its
own narrow area of the law. Decisions of HR Tribunals have little precedential value to the
broader legal system (See Nor-Man, 2011 SCC 59 from last week)
In an exam scenario, the best answer would ID the argument on both sides and declare a more
likely outcome
Hints: Precedential value of a decision (i.e., the possibility of wide application to the general
community), or core matters at the heart of the legal system (e.g., s-c privilege) are good
indicators of central importance
What would you decide?
The ABCA decided as follows:
Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director),
2011 ABCA 3
“[8] The central issue in these appeals is the meaning of the word “employer” found in the Act,
which is an extricable question of law. A full fresh standard of review analysis is not required
because this Court has previously set a correctness standard of review for decisions on
questions of law by Human Rights Panels.... Although the Panel was called upon to interpret a
term in its home statute, the key term “employer” is not defined in the statute and is a term of
general application. The determination of who is an “employer” is a question of general
importance to the legal system and outside the specialized area of expertise of the Panel, which
also justifies the correctness standard of review”
Same today?
After 2011 SCC cases, it looked like these sorts of questions should attract deference, or at least
the argument was stronger. More likely, in light of Vavilov, that Court would apply correctness,
but we will see.
There is only one issue here that is subject to correctness “the definition of an employer”,
because the other two reasons are mixed fact and law.
Suppose that instead of the s. 27 privative clause, the Act included a statutory appeal provision.
See below for example taken out of HRA
Is it a broad or narrow appeal provision? BROAD, no need for JR
- Appeal of any order and court may confirm, reverse or vary and, in essence, step into the
shoes of the tribunal, which goes beyond remedial powers of court under JR.
All issues would go via statutory appeal as JR supplanted by broader appeal mechanism.
Determining the Standard of Review
2018 Final Exam, Question 1: What SoR would apply, cont.?
Suppose that instead of the s. 27 privative clause, the Act included a statutory appeal provision, cont.
How does the SoR analysis change?
- Vavilov tells us that an appeal mechanism signals that the legislature has assigned the court
a formal appeal role
- This means that the presumption of reasonableness doesn’t apply
- Therefore, we have to apply the appellate standards of review from Housen v Nikolaisen
2002
What does Housen tells us about the SoR applicable to questions on appeal?
-
Questions of law: correctness
Questions of fact: palpable and overriding error (POE)
Questions of mixed fact/law: POE
How do we tell the difference? Distinguishing questions of law, fact, & mixed law/fact: Housen v. Nikolaisen, 2002 SCC 33
Questions of law: what is the appropriate legal test?
- i.e., what is the standard of care in a negligence case?
Fact questions: what took place between the parties; what, when, where, and who?
- i.e., what did the allegedly negligent person do or not do?
Mixed fact and law: applying a legal standard or test to the facts?
- i.e., did the allegedly negligent person’s actions (i.e., facts of what they did) meet or fail to meet the
standard of care (i.e., a legal standard)?
Why do questions of fact (also discretion and policy) attract deference?
- Limit the number of appeals and encourage finality – frequent appeals and reversals wastes
judicial resources and those of the parties
-
Promotes integrity and autonomy of trial proceedings – no reason to assume trial judges
are less competent than appeal judges
Primary decision maker best positioned to evaluate and weigh evidence, especially where
viva voce evidence and credibility determinations required
provided factual conclusions arrived at reasonably (evidence in support and all relevant
evidence considered), court won’t interfere
Same rationale applies to mixed fact/law questions
- Questions of law/fact that are interwined and cannot easily be separated, i.e., Do not
involve easily extractable, discrete questions of law
o e.g., professional disciplinary sanctioning decision: unique facts in light of principles of
sanctioning
Why do questions of law not attract deference?
- Consistency of law – same answers to same legal questions
- Appellate law making role
Where type of questions do we have here?
Definition of employer?
- Likely extricable question of law
o Could argue mixed fact and law – is Ms. Jones and employee in the circumstances but
still requires legal definition of employer
- Correctness
Whether Ms. Jones was an employee in the circs?
- Mixed fact and law: applying legal test to facts  POE
Whether discrimination was justified in the circumstances?
- Question of fact: what the risk of harm is based on the factual evidence  POE
How would a more limited appeal mechanism impact SoR and choice of how to challenge the
decision?
- Appeal to Court of Appeal
18 The decision of the Tribunal may,
- (a) within 30 days from the day that the Tribunal gives its decision, and
- (b) with the permission of a single judge of the Court of Appeal,
be appealed to the Court of Appeal on a question of law.
Vavilov addressed this issue:
“Third, we would note that statutory appeal rights are often circumscribed, as their scope might be
limited with reference to the types of questions on which a party may appeal (where, for example,
appeals are limited to questions of law) or the types of decisions that may be appealed (where, for
example, not every decision of an administrative decision maker may be appealed to a court), or to the
party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a
statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects
of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of
appeal. But any such application for judicial review is distinct from an appeal, and the presumption of
reasonableness review that applies on judicial review cannot then be rebutted by reference to the
statutory appeal mechanism.”
So, Vavilov contemplates possibility of needing to challenge a single admin decision in two forums (i.e., an
appeal on a question of law to court of appeal and a JR to the superior court on q’s of fact and mixed
fact/law)
How would Ms. Jones 3 questions have to be challenged with the narrow appeal mechanism?
-
Definition of employer – question of law = appeal under the act to court of appeal
Whether she was an employee – mixed/fact and law = JR to ABQB
Whether discrimination justifiable – question of act = JR to ABQB
The issue of JR vs appeal on q of law came up in Police Act context at ABCA in 2017, but the
court declined to answer as inadequate argument on the record.
Problems
-
Characterization – how parties/court frame issues manipulates the nature of the question and, now,
potentially SoR available
Disaggregation – splitting a JR/Appeal of an admin decision up into multiple questions with differing standards
of review, which will have some strategic appeal for parties based on differing SoRs.
Remedies
Judicial review of administrative action originated with prerogative writs that the monarch’s courts
(King’s Bench/Queen’s Bench) used to control decision maker’s exercising the monarch’s authority
Habeas corpus
- Order to bring detained person to court, so that they can challenge lawfulness of detention
Certiorari
- Order quashing a decision because it exceeds the decision-maker’s jurisdiction
Prohibition
- Order preventing proceedings from going any further where they have exceeded or will
exceed jurisdiction
Quo warranto
- Order requiring official demonstrate their lawful right of an official to their office
Mandamus
- Order directing an official to perform a statutory duty which they refuse or fail to perform
Process required formal record of admin decision maker to be delivered to court  Court
would review record to ensure decision maker acting within jurisdiction
- If not, it would issue the writ that the applicant sought
As JR evolved, declaratory relief (i.e., seeking declarations, of invalidity for example) and
injunctive relief became available
Statutory reforms re judicial review, in many jurisdictions, has simplified matters & eliminated
technicalities of old writ system
- Alberta Rules of Court, rule 3.15 – 3.25
- Federal Courts Act, ss 18 and 18.1-18.5
Types of relief available still loosely based on the traditional writs
- AB Rules of Court
o 3.15(1) An originating application must be filed in the form of an originating application
for judicial review if the originating applicant seeks from the Court any one or more of
the following remedies against a person or body whose decision, act or omission is
subject to judicial review:
(a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus;
(b) a declaration or injunction
However, statutory reforms in AB Rules of Court, and others, added additional remedial options
and clarified other matters
-
Court can send back part or all of a decision for reconsideration and can give explicit directions in
doing so: rule 3.24
- Courts have explicit authority to stay administrative proceedings pending outcome of judicial
review: rule 3.23
o Tripartite test: serious issue to be tried, irreparable harm, and balance of convenience
o
-
(Occurs if in Administrative proceedings a charter issue arises & admin body didn’t have the jurisdiction to decide
charter issues. One could apply for JR from CQB asking for the proceedings to be stayed.
Clarified the scope of the record and when it can be supplemented with additional evidence (rarely):
rules 3.18 and 3.21-3.22 (What has to be included in the record)
Commencing JR application in Alberta: (straightforward)
-
Rule 3.15 limitation period: Must be filed and served within 6 months of decision  possibly
sooner if other applicable legislation requires shorter period
o Applicable legislation would likely be enabling legislation
o e.g., Labour Relations Code used to impose a 30 day requirement for seeking JR of an arbitration
decision
-
Get your Originating Application form and Notice to Obtain Record of Proceedings: Alberta Courts –
Civil Forms
- Remedy sought  no need to use technical writ language (though you can), just ask for what you
want
o e.g., quash and remit for reconsideration with directions, etc.
Judicial Review in Federal Court:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or
by anyone directly affected by the matter in respect of which relief is sought.
Time limitation
(2) An application for judicial review in respect of a decision or an order of a federal board,
commission or other tribunal shall be made within 30 days after the time the decision or order
was first communicated by the federal board, commission or other tribunal to the office of the
Deputy Attorney General of Canada or to the party directly affected by it, or within any further
time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
o (a) order a federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
o (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be appropriate,
prohibit or restrain, a decision, order, act or proceeding of a federal board, commission
or other tribunal
Remedy sought:
- For a denial of procedural fairness, the courts will typically quash the decision and return it
to the admin decision maker to make the decision again with directions regarding the
appropriate fair procedures
o Note: for RAB (BIAS) issues, the court will, for obvious reasons, usually direct that a
different person makes the decision
- If a court finds a decision to be substantively unreasonable, the court will usually quash the
decision and return it to the decision maker, often with directions regarding the ambit of
what is reasonable.
- If a court finds the decision incorrect when a correctness standard applies, it will just
substitute its own decision on the point. If there are additional aspects of the decision not
subject to correctness, the decision may be returned to be made again in light of the court’s
decision.
Vavilov: Majority statement on remedial authority after applying reasonableness standard
- General rule: an unreasonable decision should be set aside and the matter returned for
reconsideration by the admin decision maker, now with the benefits of the court’s reasons
-
However, where (1) “remitting the matter would stymie the timely and effective resolution
of matters in a manner that no legislature could have intended” or (2) “where it becomes
evident to the court, in the course of its review, that a particular outcome is inevitable and
that remitting the case would therefore serve no useful purpose”, it may decline to remit
the matter back to the admin decision maker
o The court wants to avoid “an endless merry-go-rounds of judicial reviews and
subsequent reconsiderations” (NOTE: this is a real issue)
o
Factors to consider, include





Undue/unfair delay
Need for an urgent resolution the nature of the particular regulatory regime
whether the administrative decision maker had a genuine opportunity to weigh in on the issue in
question
Costs to the parties
The efficient use of public resources
Where do you seek your judicial review remedy?
- Inherent judicial review authority resides in section 96 Superior Courts (e.g., ABQB)
- Under section 101 of the Constitution, Parliament created Federal Court System through
the Federal Court Act
o 18(1) – grants exclusive judicial review jurisdiction to the Federal Court of Canada over
“any federal board, commission or other tribunal”
o S. 2(1) a federal board, commission or other tribunal is a body or person exercising
powers under a statute enacted by Parliament, with the exception of any body
established by or person appointed under provincial law, or a s 96 judge.
 Provincially created bodies can exercise federal statutory power under interdelegation
(e.g., Government Employees Compensation Act administered by provincial WCBs)
 when they do so, they are subject to JR at the federal court level.
- Judicial review of all matters not covered by Fed Ct Act, meaning all matters arising under
provincial authority  s.96 Superior Courts
Who can you seek judicial review against?
Judicial review is a public law remedy
- Judicial review and remedial orders can only (with rare exceptions) be sought against public,
as opposed to private, bodies in carrying out a public function
o e.g., Can’t seek JR against a human rights commission if it breaches its lease on the office
space it’s using  that’s a private, commercial function; not its public function
- Public function does not necessarily mean body has to be acting under statutory authority
o Could be exercising prerogative power or acting under a government policy or directive
that is non-legislative
Highwood Congregation v Wall, 2018 SCC 26 (see first lecture)
“The relevant inquiry is whether the legality of state decision making is at issue.”
- “state” not just statutory i.e., not all state decision making is statutory – think crown
prerogative powers
Air Canada v Toronto Port Authority, 2011 FCA 347
Private functions of public bodies are not subject to JR – How do you distinguish between
private and public functions.
-
The function it was carrying out was the awarding of landing slots at airport. Under the legislation
the TPA, it recognizes for the purposes of carrying out port operations it is a Federal Agent.
-
Examine several factors to see whether body is carrying out public function (i.e., exercising
state authority)
o The character of the matter under review: private commercial matter or one of broader
import to the public
o Nature of the decision maker: Public in nature, such as Crown or admin agency, with
public responsibilities
o Decision under review shaped by the law rather than private discretion emanates from
statute or reg rather than contract or business consideration
Distinguishing public v private functions
- Decision makers relationship with rest of gov’t: is it part of the network of government
- Extent to which decision maker is controlled of influenced by gov’t: private entities retained
to act on behalf of gov’t can attract JR (e.g., person retained to conduct professional
misconduct investigation under law society act)
- Suitability of public law remedies: are they useful or does private law suit it better
- Decision maker has a compulsory power over public or defined group
- Exceptional cases where conduct has serious public dimension (not applicable after Wall v
Jehovah)
Toronto Port Authority’s decisions regarding its landing slots at Billy Bishop were not subject to JR
- Although TPA was established under a federal act, the act indicated that it was a federal
agent only for the purposes of running port operations (shipping related stuff)
- Letters patent (kind of like incorporation documents stipulating scope of operations) stated
that non-port activities were conducted on its own account
- Thus, implication from letters that only a crown agent for port matters and that in any
airport matters, should it decide to operate one on the island, it was not a crown agent
- Interpretation supported by fact TPA required to be financially self-sufficient, not subject to
any regulations constraining its discretion re its operational decisions at the airport, and not
interwoven with gov’t (i.e., not directed by or reporting to any government body or person)
Statutory appeals
- Majority of administrative appeals proceed via statutory appeal procedures
- While we know JR can still be sought despite these appeal procedures, courts expect they
be utilized if they allow for appeal of question at issue
- Always review enabling statute for appropriate appeal procedures and time limitations
THE REMEDIAL DISCRETION OF THE COURT:
Judicial review is a discretionary remedy inherent to section 96 courts, a discretion which the
courts can refuse to exercise
The common grounds for such refusals to intervene are:
- Adequate Alternative Remedies (Person has gone to court seeking JR, when a diff option was
available to them under the statutory regime to seek redress.)
o statutory appeals
o more convenient court remedy
- Prematurity – Preliminary rulings (Seeking JR too early in process)
- Mootness – Hypothetical issues
- Delay – Collateral Attack
- Misconduct of the Applicant
- Waiver
Adequate Alternative Remedy:
Harelkin v University of Regina, [1979] 2 SCR 561
- Appellant student was required by university to discontinue his studies
- University Act provided an appeal to a Committee of University Council and then to
Committee of University to Senate
- First Committee heard from the University (not the student) and decided against the
student (PF violation)
- Student applied for a rehearing before the committee and was refused
- Student sought judicial review (certiorari and mandamus) rather than pursuing an available
statutory right of appeal to Committee of the University Senate
- On JR to SKQB, court granted judicial review and quashed committee decision rejecting the
university argument that the student had an alternate remedy to appeal to committee of
the senate
- Court of Appeal overturned QB holding that where there is a right of appeal, judicial review
should not be granted without “special circumstances”
- SCC affirmed CoA, dismissing appeal
- Several factors need to be taken into consideration when deciding whether there is an
adequate (i.e., can it provide the necessary relief) alternative remedy.
o Procedures on appeal
o Composition of the appeal committee, its powers, and the burden of the lower decision
o Expeditiousness and costs
Senate committee required under the Act to “hear and decide” on student “appeals” 
adequate alternative remedy to JR
- Nothing in act limited appeal powers of committee. Appeal could have cured denial of
natural justice at first instance hearing, if the appeal was run de novo, or sent back for a
proper hearing, if not
- Council Committees breach of procedural fairness and refusal to grant a rehearing was not
a sufficient reason to ignore statutory right of appeal and to seek judicial review
- Cannot presume outcome of internal appeal will –
do otherwise, promotes delay and inefficient use of court resources to resolve disputes that
may have been resolved without in court intervention
o If appeal fails to correct errors, then seek JR
-
Prematurity
Air Canada v Lorenz, [2000] 1 FC 494
- Adjudicator was appointed to hear and determine an unjust dismissal complaint by Mr. Lorenz
against Air Canada
- After 5 days of an estimated 23 day hearing, Air Canada learned that the adjudicator was a
labour/employment lawyer who was representing an employee in another unjust dismissal claim
(not against Air Canada)
- Adjudicator refused to provide information about that case and denied AC’s application to recuse
himself of the grounds of bias
- Mr. Lorenz’s unjust dismissal complaint was stayed for 2 years pending the outcome of AC’s
application for judicial review
-
Fed Ct dismissed JR application
Inappropriate of Court to provide judicial review of interlocutory ruling before the adjudicator
rendered a final decision on merits
o After decision on merits, Air Canada could apply for judicial review on bias at same time as any
other reviewable error
o If adjudicator dismisses the complaint, then bias issue is moot
- Court must weigh the competing considerations: hardship to the applicant, waste, delay,
fragmentation, strength of the case, and statutory context
o To allow JR on interlocutory applications fragments and multiplies proceedings, causing delay
 Other participants may seek judicial review as a tactic of delaying proceedings to force the
more vulnerable party to settle
o Absence of right of appeal and strong privative clause strong indication JR should be kept to a
minimum
o No evidence for this argument of
practice in the area, too
o Substantial delay antithetical to legislative purpose underlying creation of specialized tribunal
- Court should only intervene with judicial review before an admin tribunal has made its final decision
in “exceptional circumstances”
o Speculative allegation of bias isn’t an “exceptional circumstance”
MOOTNESS
The dispute will have ceased to have practical significance for the parties – when will court
proceed to hear in any event?
Borowski v Canada (AG), [1989] 1 SCR 342
SCC laid down general mootness principles  Court may decline to hear case where
Decision of the Court will not have the effect of resolving some controversy which affects the rights of
the parties
o i.e., Court decision will have no practical effect on the rights of the parties
- This essential ingredient must be present at the outset and at the time of hearing, otherwise the matter
is moot
- Court has discretion to depart from general policy to not hear moot cases
o Collateral consequences to the proceedings
o Issues of public importance/interest
Court must balance need for issues to be dealt with against other considerations, such as scarce court
resources and appropriate role of the court to resolve live disputes
-
Delay
Delay in commencing proceedings may either go to the jurisdiction or the discretion of the
reviewing court
- Discretionary delay: Even if you file JR within the limitation period, has there been an
inordinate delay such that you prejudice the other party, court won’t grant you the remedy
- Jurisdictional: Failure to adhere to mandatory limitation statutes will prevent a court from
even considering a case
o JR limitation period is 6 months in AB under Rules of Court, but always check enabling
statute for shorter applicable period for JR and for statutory appeals
- If no limitation period, or even within a limitation period, the courts will on occasion deny
relief on grounds of undue delay
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3
- Alberta building dam on Old Man River, which impacted areas of federal responsibility such
as navigable waters and fisheries
- Environmental group applied for certiorari and mandamus in Federal Court to compel
Federal Ministers to comply with federal environmental guidelines order, which required an
environmental assessment
- Assessment had never been done and damn was now over 40% complete
- At Federal Court, applicants successful on principle issue but judge refused to exercise
discretion to grant remedy because of unreasonable delay and futility dismissed on grounds
of unreasonable delay and futility
- FCA granted appeal  judge should have granted certiorari and mandamus
SCC upheld FCA decision
- Important: Unreasonable delay in bringing application is a reason to refuse to exercise
discretion where (1) the delay is inordinate and (2) it causes prejudice to the party relying
on the challenged decision
- Delay was not inordinate here:
o Society made a sustained effort to challenge the decision to build the dam in other
judicial proceedings, some of which were temporarily successful, as well as through
other means
o Alberta was not prepared to accede to an EIA until it had exhausted all legal remedies
o There was no evidence that Alberta suffered any prejudice for the delay
- Futility (i.e., EIA would be duplicative) was not a proper ground to refuse the remedy
o Prerogative remedy should only be refused only where it would effectively be nugatory –
provides no practical relief - not the case here
o Implementation of the Order even at this late stage (dam is 40% complete) may mitigate
or ameliorate environmental impact from the dam
Collateral Attack:
- Legal strategy where one attacks the order of a court/authority in a different forum
R. v. Consolidated Maybrun Mines Ltd., [1998] 1 SCR 706
- Appellant company owned a gold and copper mine | Minister of Environment concluded
the mine was abandoned and the transformers containing PCB’s were a risk to environment
- Mayburn refused to take corrective action despite numerous requests
- Ministry’s Regional Director issued an order directing Mayburn to take certain corrective
measures to clean up the contamination at the site under Environmental Protection Act
- Appellants didn’t appeal order to Environmental Appeal Board (EAB) electing to disregard it
and let the time period for appeal run out
- When later charged by the Ministry for failing to comply with the order, Appellants
defended the charge in court by alleging the order, which they had failed to appeal, was
invalid
- Provincial trial judge, who was designated by the Act to hear charges, concluded only part
of the order was valid and ordered Appellants to pay fine
-
Ontario Dvision Court allowed the Minister’s appeal (aff’d by ONCA) and upheld the entirety
of the order and the charges
- Court held that the only appropriate venue to challenge the validity of the order was the
appeal procedure to the EAB, which Mayburn chose not to use.
- Provincial trial judge did not have the authority to review the validity of the order 
authority belonged to the EAB.
- Mayburn could not attack validity of the order in penalty proceedings after forgoing the
opportunity to appeal the substance of the order – it amounted to a collateral attack on the
process laid out in the Act (i.e., it chose to forgo the procedure laid out in the Act for
challenging orders and then tried to challenge the order in the penalty phase)
- Court of Appeal affirmed the Ontario Court judgment
SCC upheld lower court decisions
- Question of whether the court, at the penalty stage of the process, can determine the
validity of the order on a collateral attack depends on the statute under which the order
was issued
- What was the legislative intent as to the appropriate forum? Look to:
o Purpose of legislation, availability of appeal, nature of collateral attack, tribunals
expertise, penalty for failing to comply are relevant factors but not conclusive
- Permitting a person to collaterally attack the order at the stage of penal proceedings would
defeat the Act’s objective (protection of environment) and would undermine its
effectiveness
o Parties would ignore order and simply challenged if fined – undermines effectiveness of
orders
- Appeal process was the intended and appropriate forum to challenge the order as the EAB
empowered to deal with any deficiency in the order
- The penal consequences (fines) provided by the Act don’t justify defenses by collateral
attack that undermine the Act’s purpose and EAB’s jurisdiction
Misconduct of Applicant
Court can refuse to grant JR remedy based on poor conduct of the applicant – think equitable
maxim re clean hands ||| e.g., Fraud and perjury
Homex Realty v Wyoming, [1980] 2 SCR 1011
- Court quashed by-law passed by City because it breached DoF to applicants
- Court refused to grant remedy because Homex had failed to abide by its undertakings that
it would respect previous owner’s sub-division and services agreements with the City
- Court refused to grant remedy if they feel the applicants have acted inappropriately
Waiver
Court may refuse to exercise discretion to grant JR remedy on the basis of waiver or
acquiescence
- Most commonly occurs where defect complained of is breach of rules of natural justice or
bias
- If one feels that a decision maker is bias against them, they will have to make an application
to that DM, if you do not the court won’t accept it. Get the fairness violation corrected early
In the Halifax-Dartmouth Real Estate Board case (Chapter 17), the failure of the applicants to
object at the hearing to the lack of notice of one of the charges resulted in denial of relief on
subsequent judicial review
- Should always raise on objection on the record if you believe the decision-maker is
breaching or has breached the rules of natural justice, whether breach occurred preliminary
to hearing or during
o If you don’t know or have no cause to know, then you may be OK to raise the objection
in a later JR if you can prove lack of prior knowledge
Waiver
A more difficult issue is whether you should not only object but also withdraw from further
participation in the hearing
Dangerous to withdraw from the hearing and forego your opportunity to participate in the full
hearing if your objection is later not upheld: Millwork v Public Service Commission (1974)
- Same result occurred in Pierre v Minister of Manpower when the applicant withdrew when
an adjournment request was rightfully refused by the admin tribunal
There are limits on waiver – even if parties agree, you can’t waive a statutorily required public
hearing - required in the “public interest”: Wassilyn v Ontario Racing Commission (1993)