Admin Law Summary
Contents
3
Overview
Shank v Daniels
3
Courts and Agencies, Foundations of Judicial Review of Administrative Action
4
Procedural Fairness: Modern Approaches
5
Judicial review jurisdiction – pg. 21, Dunsmir, pg. 77 – 78 paras 27 – 32
5
Procedural fairness doctrine
5
Nicholson v Haldimand – Norfolk
5
Martineau v Matqui
5
Baker v Canada
5
Canada v Mavi
6
Suresh v Canada
6
Public Office Holders, Hybrid Public/Private Relationships
7
7
Knight v Indian Head
Cabinet Decisions & Appeals, By-Laws & Rule Making, Non-statutory Policy Decisions
8
Content of Procedural Fairness
8
Homex Realty v Wyoming, Marinteau
8
Spectrum: Legislative, ministerial, policy, general (no procedure) - (Light procedure) - Quasi-judicial,
Rule application, Specific (heavy procedure)
8
Canada (Attorney General) v Inuit Tapirisat of Canada
8
FAI v Winneke
9
Bezaire v Windsor Roman Catholic School Board
9
Canadian Association of Regulated Importers v Canada (Attorney General)
9
Pikangikum FN v Canada
10
Rights Privileges Interest and Recommending Functions
10
Re Webb
10
Hatfield v Fort Saskatchewan General Hospital
10
Irvine v Canada
11
Guay v Lafleur
12
Pergamon Press
12
Legitimate Expectations, Public Law Estoppel
12
Suresh case (as an example)
12
Furry v RC School Board
12
Apotex vs Canada
13
1
Admin Law Summary
Mt. Sinai Hospital Centre v Quebec (Minister of Health and Social Sciences) case
13
14
Canada v Mavi
Public Law Estoppel
14
Baker 5 – Agency Procedural Choices
14
Charter is different
15
Julie Guindon v Canada
15
Charkaoui I
16
Charkaoui II
16
General common law requirements for notice
17
Re Taylor (pg. 302)
17
Re Chester (pg. 303)
17
Canada v Krever
17
In Pikangikum
18
Clifford v AG Ontario – pg. 25
18
Pre-hearing delay - Blencoe v HRC (BC)
18
Oral hearings
18
Masters v Ontario
19
Khan v University of Ottawa
20
20
Open vs. In Camera Hearings
Men’s clothing manufacturers – pg. 346 – labour arbitrator
20
Re Parrish
20
Howard v Stony Mountain
21
21
Disclosure
Kane v UBC (pg. 371)
21
ON(Human Rights Commission) v ON (Board of Inquiry into Northwestern Gen Hospital)
22
Suresh (pg. 269-270):
22
Mission Institution v Khela (pg. 140)
22
CIBA – Geiger Ltd v Canada (Patent Review Board)
23
Toshiba case – anti-dumping tribunal
23
Trans-Quebec v maritime
23
Re B’nai Brith (pg. 409)
23
Huerto v College of P&S (pg. 145 of supplement)
23
24
Evidence
Université du Quebec à Trois-Rivières v Larocque
24
2
Admin Law Summary
R v Khan
24
Bond v New Brunswick (Management Board)
24
Cross Examinations
24
Innisfil v Vespra
24
Re Stratchona v MacLab Ent
24
Djakovic v BC
25
Institutional decisions
25
Delegates non protest delegate – delegate may not delegate the task to someone else
25
IWA v Consolidated Bathurst
25
Institutional Decisions
26
TvQ
26
Khan v College of P & S
26
Bovbel v Canada (probably should relook at this case)
27
Yusuf pg 544
27
Re Brett pg. 545
27
Re Marques & Dylex pg. 545
27
Baker v Canada (again)
27
Brosseau v Alberta Securities Commission
28
Bias – attitudes & predisposition
28
Old St. Boniface Résidents Association
29
Dimes v grand-junction
29
Newfoundland telephone public utilities commission
29
3
Admin Law Summary
Overview
Impact of admin law felt most strongly in the operations of the executive branch of gov’t
- Mechanisms of control is administrative law
- Gov’t departments and department programs established by legal means (statute or by prerogative)
Machinery of admin law most relevant at the sharp point of the bureaucratic machine (at the counter where the bureaucrat
interacts the citizen who needs something from the gov’t) – gov’t/citizen interaction
MUSH – municipalities, universities, schools, hospitals
Shank v Daniels
- Student misrepresented her law school grades for applications
- Dean imposed punishment based on his disbelief of student’s position, court said dean overreached his jurisdiction
580 agencies, boards, commissions (tribunals/foundations etc.) in ON (1500 in Can) - exercise statutory power, spend $
Functions
- Give advice
- Operate programs (i.e. LCBO)
- Regulate and make regulatory decisions (i.e. Ontario Energy Board) --> determine energy prices etc.
Persuasive vs. Coercive regulatory regimes
- Possible to effectively nudge the public to make decision that is for public good without coercion
- ABCs created because they are experts in their field, cheap, fast, insulated from political pressure, combine
functions, ad hoc (as needed)
- not possible for the courts to review/control every public statutory entity decision
Admin values: accomplish the mandate, efficiency
Part II – Judicial Review of Administrative Procedure
Courts and Agencies, Foundations of Judicial Review of Administrative Action
- The ability/capacity/desirability/method that the court has to superintend decision making
Court of Control Agencies
- Original jurisdiction (torts, contract etc.)
Appellate jurisdiction (appeal of a statutory decision maker)
- No right to appeal unless statute gives it!
- The right itself, how wide it is, issues to be considered are all dictated by statute
Judicial review jurisdiction --> ultra vires doctrine
- Making sure decision maker limited to statutory mandate
- Power confined to statutory mandate
- This can be interpreted by the court
Courts have a rich body of material for exerting control over agency practices
- Courts imply conditions into the exercise of the statutory mandate
- Process: power exercised be done in a fair and transparent way
- Bureaucrat: unbiased
- Decision: justified or justifiable
Ultra vires doctrine
- Implemented in a different way than original or appellate jurisdiction
Judicial review: issued by the prerogative writ: “it is the prerogative of the queen…”
Theory of the prerogative writ: up to queen to require statuette makers to bring up record and explain to her why they did
is within the terms of the statute that she assented to
Prerogative Writs (remedies)
Examples:
- Certiorari – quash decision
- Prohibition – prohibit statutory decision maker from doing something that they are doing
- Mandamus – requires statutory decision maker to do what is required in the statute that they weren’t doing
4
Admin Law Summary
- quo warranto: remove from office a “pretender” to that office --> Mayor Gary Wheeler NB Mayor
Method of prerogative writ is by petition to the jurisdictional court that has jurisdiction
Petition procedure been overlaid by civil procedure into application procedure
- starting doc: notice of application --> initiation of judicial review proceeding
- Not an action, or civil claim, not full available of remedies --> controlled by prerogative writs overlaid by statute
- It is an initiating procedure
Initially said that prerogative writs = judicial powers
- Terminology to distinguish judicial review powers with other powers (ministerial, administrative etc.)
- Distinction is pretty well gone, but it is stuck in the cases & judicial habits
- Will still see argument based on it “still use the language but the concept is out of the law”
Cooper v Wandsworth Board of Works
- Cooper built house, 19 century statute requires anyone who intends to build a house to give notice to board of works
before doing it
- He hasn’t set the notice, the board has not received the notice
- Board has stat authority to demolish house that did not have notice
- Cooper sues board of works in private law, action of damages for trespass to his house
A condition precedent to exercise board’s authority was to give notice to Cooper about their intention, and give his a
fair hearing
- This is not in the statute!! But court implying procedural conditions into the statute as a condition precedent
Defence of legal authority not good if condition precedent not observed --> making action for trespass possible
Board ought to give notice to plaintiff and allow him to be heard, because the default of the initial notice was sent
and was miscarried, or there was a biased decision maker
- Although no word in statute requiring parties to be heard, justice of the common law requires hearing “justice
of the common law will supply the admission in the legislature”
Implying into statute what legislature intended --> legislative intent is source of the courts power to impose conditions
through inference
Procedural Fairness: Modern Approaches
Judicial review jurisdiction – pg. 21, Dunsmir, pg. 77 – 78 paras 27 – 32
Constitutional foundations in judicial review jurisdiction
- Underlying tension between rule of law and democratic principle
- All decision making powers have legal limits derived from enabling statute
- Judicial review is the means, by courts supervising those exercising statutory power from overstepping those legal limits
- Courts current explanation to reconcile demo principle and constitutional rule of law principle
Procedural fairness doctrine
- “impeccable 19th century roots in Cooper” --> court described doctrine in various terms: basically where
procedural conditions are added on by implication to statutory powers such that stat powers can only be validly
exercised if procedural conditions are first met
- Justice of the common law will supply the legislature --> foundation is legislative intent
- Legislature would not grant the power unless procedural conditions were met
Justifications for procedural rights
- Fairness to people affected
- Get better information for decisions
- Search for better solutions
- Confine Stat powers to legitimate uses
- Accountability to affected individuals
- Legitimisation
- Interest balancing
- Promote democracy
5
Admin Law Summary
Nicholson v Haldimand – Norfolk
Court picked up on Cooper – implement procedural fairness
- Police act provided statutory powers to discipline for police officers, s. 27 of pg. 38.7
o Sets out process: notice, comment, trial like hearing
- S. 27b, nothing in statute affects police chiefs to dispense with services of anyone within 18 months of initial service
- Probationary constable dismissed; no notice, found he didn’t fit in
- Procedural fairness required; applied flexibly
- Requirements: notice, opportunity to comment in writing
Laskin
- this is not an employee – employer relationship --> this is under police act
- Nicholson is holding a police office of some kind
- Because it is statutory office (as well as contractual) --> cannot be removed without following the implied conditions
- Why? – there might have been a mistake --> achieve better public administration
•
Court says although he is not entitled to same amount of procedure that an officer employed for more than 18
months should get, he must still be treated fairly and not arbitrarily.
•
Does not make sense to give some people full procedural protection, and others none at all.
•
Minimal required protection: at least give reasons for dismissal.
Ratio: There is a general common law duty of fairness that always applies in administrative decisions, even where
there is a procedural guarantee that doesn’t apply in a given case.
- This case wasn’t private law!!
Martineau v Matqui (quasi-judicial function means you have to use due process)
Certiorari is available as general remedy for the machinery of gov’t – Dickson J –
- Order may go to any public body with power to decide any matter affecting rights, interests, property,
privileges or liberty of any persons
The basis of this broad remedy is general duty of fairness resting on all public decision makers
- Content of natural justice and fairness will vary according to the circumstances of the case
• If you are exercising a quasi-judicial function the consequence is you have to use due process
• The content of natural justice and fairness will vary according to the circumstances of the case (p.45)
Baker v Canada
- B is Jamaican national, comes to Canada on visitor’s visa for 6 months
- Baker came on a 6 month visitor’s visa from Jamaica. After expiration of visa, went illegal, 11 years here.
Had 4 children in Canada, 4 in Jamaica
- Stays in Canada for 11 years and works illegally
- 4 Canadian born children, discovered and ordered deported
Minister has authority to admit people on humanitarian and compassionate grounds – s. 114(2) of the Immigration Act
- Dept: proceeding is done through doc submissions (written not oral)
- Baker produces evidence showing good person, medication will control anger, sending back to Jamaica will
likely induce psychotic episode
- Immigration officer refuses request, Baker requests notes of officer’s notes
- He notes concern about the 4 children (too much offspring, stress on the system)
- She brings application for judicial review
- She says she should have been given an opportunity to have a judicial review, Should have been heard in
person and no-one can understand the written file (her situation via writing)
There is a bias element here (will be addressed later)
- Baker challenges through judicial review, certiorari --> argues that an oral hearing is required to make the
process procedurally fair
- “In principle, this is expensive for the tax payer”
How to determine content of procedural justice - L’heureux dube gives roadmap – pg. 55 – 7 paras 23 – 27
Elements to consider:
1. Nature of decision and process followed in making it
2. Nature and terms of statutory scheme, role of the decision within the scheme
3. The importance of the decision to the individual(s) affected
4. Legitimate expectation of person challenging the decision
6
Admin Law Summary
5. Agency’s choice of procedures
Humanitarian and compassionate decision different from judicial decision, exercises considerable discretion and
requires consideration of multiple factors
- Duty of fairness owed in the circumstances is not minimal, circumstances require a full and fair consideration
of the issues and the claimant and others whose important interests require a full and fair consideration of the
issues and the claimant and others who’s 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 the case – have it fully
and fairly considered.
- Role is within statute scheme is exception to general principles of immigration law, factors militate in favour of
more relaxed requirements under duty of fairness (1 and 2 indicates more relaxed requirements)
- Ministerial decision, greater latitude, “it is an exception”
- These factors enter into determination of the type of participatory rights, the duty of procedural fairness
requires in the circumstances
- A humanitarian and compassionate reason is very different from a judicial decision, since it requires the
consideration of multiple factors.
- No appeal procedure, although judicial review may be applied for with leave of fed court (no conclusion here)
L’HD says this procedure is fair
Canada v Mavi (Sponsorship… need to give defaulters notice, chance to explain, consider info, notify decision)
- 2 million people admitted under family class, may be sponsored by family member that will assist their
application
- Sponsoring family member undertakes K obligations: if sponsored member takes welfare, the sponsor must
repay the gov’t
- In Mavi – 8 sponsors became responsible for their sponsored peoples
o the undertakings are structured and controlled by statute - obligations are not just contractual, but also
statutory --> thus not exclusively governed by K law
- Families says unfair, needs chance to comment before debt is collected
Court says there is discretion: from statutory source --> on how long it takes to collect debt
- Because the legislature intended it, the statute intends it
- Reading the statute in light of its purposes/objects
The conditions of procedural fairness (what is the content)
- look at the 5 factors from Baker
- the general rule is that a duty of fairness applies because the legislature intended it - para 39 (pg. 40)
- If the legislature did not intend it, then procedural fairness would not apply from that foundation
Binnie could not find if legislature excluded officials from according procedural fairness to the defaulting sponsors
- Thus general rule applies
- “No such exclusionary language in the immigration act” – Para 39 from Binnie
Once it has been found to exist, particular legislative and admin context is crucial to determine its content
- Look at the legislative context AND the admin context --> find out what the official has to do
- Procedure required here is fairness says Binnie --> official must be fair, any list/roadmap can override that
o Rule is fairness here
o Straight forward debt, final, specific, no appeal or other remedies
o The effect is significant, sponsorship debts can be very large
No need for “elaborative adjudicative process”
- No need a hearing
- But does need notice
- Give individual opportunity to explain in writing circumstances that might militate against immediate collection
- Notify, consider, inform of decision
Foundation is legislative command --> the statute is speaking through the court
- Legislative intent is the basis of this, and court is explaining it but legislature can override
List in Baker not exhaustive
- General rule: procedural fairness unless legislature says otherwise!
- “court looks with respect at what agencies have done…”
7
Admin Law Summary
- Binnie kind of used Baker 1- 2-3 to determine extent of notice and type of process
- Binnie says the admin decision is specific --> not general or broad, not subject to appeal, final and discretionary
Suresh v Canada
- Applied for immigration status --> but was member of Tamil Tigers
- Min issues s. 53 certificate against him --> Suresh is danger to Canada
- Initiates process in which end result is deportation
- Process: allowed to make written submissions on why he is not a danger to Canada to the minister
- But not given immigration officer’s report which the minister has which is the basis for claim that he is security risk
- Suresh doesn’t know what the concerns are – he also doesn’t have the CSIS report that was influential to the
immigration officer in coming to conclusion that Suresh was security risk
- The court is adjudicating this not on legislative intent (minister can deport free of procedural conditions), basis is
constitutional, liberty deprivation.
- Court says in adjudicating liberty deprivation: proper way is through the lens that Baker offers in statutory powers -->
what procedures are constitutionally required will be processed through a Baker thought form
- This is a constitution case
Analysis here: the same analysis that would be done by following the Baker road map
- “Nature of decision to deport” --> Baker 1
- Nature of decision militates neither in favour of particularly strong or weak procedural safeguards
- Suggest the need for strong procedural conditions --> nature of stat scheme
- No right of appeal (like Mavi and Baker)
- No requirement for oral or written reasons
- No procedures set out in the statute - greater protections required when there is no appeal: final and specific
- 3rd factor: importance of rights affected --> allegation by individual that he would be tortured if deported
Minister rejects allegations, but does not explain why
- really only looks at Baker 1 “nature of decision”
- Notion of no appeal – straddles Baker 1 & 2 --> statutory basis for no appeal
More procedure is required by the court if agency did not have any process
- Baker 1 & 2 is hard, Baker 3 is easier,“Baker 3 would give Suresh everything” --> Baker 1 & 2 waters it down
Hybrid situation
- Private law contract and public law obligations overlaying the private undertaking
- Public office holders with K
Court lays out procedure:
1.Person must be informed of case to be met (74.4)
2.This means the material which the minister is basing the decision on must be made available, including CSIS memo
3.Must accept written submissions from a person facing deportation
4.Have to consider submissions fully and fairly
5.Unlike Mavi, you have to provide reasons for decision, have to notify of decision, and have to provide written reasons
– can’t be canned reasons – have to be written by a staff member.
6.Reasons have to come from Minister, who has to justify the decision
7.Minister has to get written assurances of no torture in country of deportation
8.Dept has to be able to present evidence and make submissions as to the value of such assurances
Need to do baker analysis, greater procedural protection when no appeal process provided, especially if person can face
torture from decision
Public Office Holders, Hybrid Public/Private Relationships
Knight v Indian Head
- The director of education of Indian head school board, holds that position and gets into some difficulties,
Knights k not renewed
- He brings public law remedy (not private law) to overturn firing --> arguing that he should have fair procedure
(you saw this in Nicholson)
- Statutory office under Education act but has employment K - Knight status is hybrid
Court says employer is public body with stat powers, exercising them
o He hold public office, has right to procedural fairness
8
Admin Law Summary
- Court says (at para 118): strong stat flavour so as to be an office, dealt with according to public law
- Require procedure will raise better procedures, fair etc.
Knight given right to notice as to what is at issue, what are the allegations, and why they think he should not hold that
office, and opportunity to comment in writing, only then can decision be mad
Dunsmuir v New Brunswick
- D appointed court clerk, had hybrid status: office at pleasure & employment K
- D had many reprimands, DOJ in NB fires him
- D brings grievance under public sector labour relations act, the arbitrator rules that he was not given procedural
fairness, thus the exercise in statutory power was void ab initio --> D reinstated
SCC looks at this
- courts must respect the will of parliament and legislature to do things that the democratic polity has chosen to do
- Legislative branch cannot remove judicial review powers, but that doesn’t mean that power should be excessively
exercised
- When public employee is employed under K, even though there is status as public office holder, applicable law
governing is K law, not public law --> para 81
- doesn’t make sense to give award for dismissal based employment law from public law context
- there may be occasions where public law duty will apply – when there is no K of employment para 115
This is not this situation
“Ample evidence that if k is closely controlled by statute then public law would apply”
- So you look at the statute (from Mavi)
Dunsmuir – narrow exception to general rule of procedural fairness
Nicholson is still good law
● When a public employee is hired under contract, the appropriate approach is to address via contract –
applicable to dismissal under contract
● Exception 1 (para 115): Dunsmuir makes some exceptions under 115 if you hold a public office, it’s not a
hybrid, its only public law, there’s no contract. Protection has to come from public law.
● Exception 2 (para 116): The statute: You can imply from duty of fairness flows from statutory power and
governing the employment relationship. Dunsmuir is a hybrid, doesn’t fall under these exceptions
Cabinet Decisions & Appeals, By-Laws & Rule Making, Non-statutory Policy Decisions
Content of Procedural Fairness
Homex Realty v Wyoming, Marinteau
Dickson says there is a spectrum
- Ministerial/policy decision = “little procedural protection”
- Quasi-judicial decision = “substantial procedural safeguards”
- The existence of discretion can point ways
- The greater the discretion, the greater need for info
But lesser: policy type decisions are also discretionary --> lesser procedural protection
Spectrum: Legislative, ministerial, policy, general (no procedure) - (Light procedure) - Quasi-judicial, Rule application,
Specific (heavy procedure)
- “Decisions? Spectrum of process”
- Spectrum: what the statutory decision maker must do before decision undertaken
- Spectrum is to help
- Dickson referred to legislative powers (extreme end of spectrum)
Canada (Attorney General) v Inuit Tapirisat of Canada
- Bell applies CRTC for rate increase
- Inuit Tapirisat is intervenor – opposes rate increase
- CRTC approves rate increase
- Inuit appeals to governor in council (the cabinet), pursuant to that statutory power.
- GIC has power to overturn what the CRTC can do
Weird appeal: no error of law is alleged, Inuit says people cannot afford rate
9
Admin Law Summary
-
Bell, CRTC makes submissions through Dept of Communications
DoC summarizes the facts, issues, positions and recommends what to decide
Min of Communications is a member of the cabinet, present at cabinet meeting, recommends rejecting appeal -> consistent to what the dept recommended he also has a vote, Inuit doesn’t know what is being said
- Inuit does not have the submissions, is not present at the cabinet meeting, does not know what minister is
saying, does not have Bell/CRTC submissions
Inuit appeal rejected, thus complains to the court
Nothing needed to be done according to SCC
- Look at the statute to see what process is required
- If you look at s. 64, no procedures in statute – but not fatal --> procedures could/should be implied
- Parliament is not burdened
- S. 64 has interesting language “or on his own motion” – review CRTC
- GIC doesn’t need to wait for Inuit, no need for initiating appeal --> they can just do it
- Doesn’t matter whether Inuit likes it or not
- Bell has millions of subscribers, difficult to give notice to them all (At that time)
- A specific decision is different than general (Dickson)
- This is aimed at all bell subscribers, no trust Inuit
Conclusion: legislative action, no procedure necessary
- Inuit judicial review that it was unfair fails
Inuit Tapirisat as an example of legislative power
- If Cabinet is exercising stat power
-The statute that confers it could be that procedural conditions is implied
To make GiC to take implied procedural conditions
- Need to make it less legislative, more quasi-judicial
- Affect must be more specific
FAI v Winneke (Australian case)
- FAI insurance provides workers comp insurance
- In order to be qualified to provide workplace insurance, the insurer has to be certified/approved by the
Governor-in-Council
- Gov’t has issues with this insurance provider
- ‘We’re not satisfied with your service’.
- FIA says: ‘Please give details’
- Contract is then cancelled
- Statute requires approval of GiC – statutory language “fit and proper person”
- Gov’t warns FAI, decision is about FAI not general policy
Can governor in council be subject to procedural conditions?
- Statutory language leads implication of notice/comment in procedural conditions
- Nature of the task – wave of relevant factors to determine if person is fit/proper
- Also if factor is specific or general
There are implied procedural conditions here…
Content: notice to FAI about the concerns, consideration of any representations in writing by FAI prior to exercising
the decision to terminate the K
- Legislative decision is a strong indicator of no or very little procedural considerations
Homex Realty v Wyoming
- Town of Wyoming ON
- Homex has property it wants to subdivide
- Wyoming passes by-law that makes Homex has to pay the cost of subdivision, or else Wyoming would need to
- Homex checker boarded the lots to make Wyoming pay for it
Wyoming passed by-law to deem the plan not be registered plan in order to prevent this
- “This is legislation in form” --> dispute with company, specific, resolve dispute in favour of city, developer’s
life plan is affected
10
Admin Law Summary
In substance though, the form of this statutory power in the Municipal Act doesn’t determine content of natural
justice --> which is determined by fact that it is specific and affects private property
Dickson says town should have given Homex notice and head what Homex has to say, thus by-law is void
● This bylaw not aimed at a broad population, its just aimed at one individual developer, thus he is entitled to
some procedural safeguard
● Not a hearing, but some notice that they are considering a bylaw and a chance to comment (ie: Like Nicholson)
Bezaire v Windsor Roman Catholic School Board
Slow closing decision by the Windsor Roman Catholic school board
- Board is facing problems, decide to close 9 schools
- Board does have power to close schools – legislature has guidelines that schools have to follow
- Guidelines that were imposed by ministry are statutory (pursuant to statute)
- The board has created its own guidelines as to what it must do when it closes schools – those are non-statutory
Neither were followed
- Both require consultations with parents of some type
- Public meetings were for: “consultation is democracy is the administrative sector”
- Real consultation – statutory requirement (that in this case was not followed)
Analysis:
- board’s guidelines a little ambiguous – non statutory
- but they result in the application of the doctrine of fairness (annunciated in Nicholson)
- Policy based on fact that closing of school is business of community and community must be consulted
- Requirements of publicity public sessions
- Real community consultation, is condition precedent to valid decision
- Maintain an open mind, listen and consider
- Going out to listen AFTER decision is made counts for nothing.
-
Canadian Association of Regulated Importers v Canada (Attorney General)
- Supply side regulations for hatching chicks – quota regulation system
- Minister adjusts quota system then there will be winners and losers
- Farmer’s greatest asset is the quota
- Losers challenge decision to change quotas through judicial review
- Here, number of people who is affected is not large
- Not difficult to put in notice here
- It also harms established economic interest
- Impact important, not classification policy/legislation
Linden JA
- Policy/legislative decisions not reviewable
- Reverses what lower court said (about having the need for notice/opportunity to comment)
- Would be considerate to require notice
- These could go either way, it is sophisticated
- “These are the factors that move courts”
Pikangikum FN v Canada
- P is northern First Nations community, 2200 people, Minister at the time from the area
- Flood at the water treatment plant
- Fuel tanks failed P applied to gov’t to fix it, gov’t told P to wait
- P used own resources to resolve it, gov’t promised to compensate, asked P to refrain from installation before
inspection
- Valve failed before then then
- As a result, P put into 3rd party management
- Band says – no meaningful consultation
- Gov’t says it is pure policy decision (aka not reviewable)
- Regional directive: para 88
- Tells bureaucracy what they must do when putting bands in third party management
11
Admin Law Summary
- Need: official notice, and what is being said (notice in common procedure)
- Decision set aside
What should proper notice say
- The mere fact that problems were referred in the letter is not enough --> officials should say more specificity
“flood was caused because…. Negligence… etc”
- Notice must contain the problems at issue
- Notice has to be done before decision is taken – allow for opportunity for meaningful discussion
- P here doesn’t probably get oral hearing but regional directives require oral hearing so oral hearing likely
(directives say “hold discussion”) --> court would probably follow regional direction
- There has to be consultation: meaningful discussion…
- Court: The regional directive contemplates giving notice to the recipients of the difficulty/default. The
recipient was entitled to notice of the difficulty or default as part of the right to procedural fairness. Notice was
not given, as such, a breach of the duty of procedural fairness occurred.
Dept of northern and indian affairs had regional directive on 3rd party management
- It says/directs managers on how they’re supposed to use the power to appoint 3rd party management
- A non-statutory guideline
- In Beziar, says that guidelines establish expectation that guideline will be followed
Pikangikum, the guideline is meant to be followed
- Therefore consult before make decision to appoint 3rd party manager (para 104)
- Entitled to notice
Rights Privileges Interest and Recommending Functions
Re Webb (subsidized tenancy very valuable statutory benefit = notice and comment)
- W is OHC tenant (subsidized): caused problems
- OHC manager recommended terminating lease
- OHC approves, brings L&T Act application
- W challenges OHC decision to apply for lease termination
- W goes to court because OHC does so, but W argues she wasn’t given notice and comment
- W argues this procedural issue because it takes time
- Delay tactic
- Gives her two kicks at the can.
- This is strategic hit
- This is a blend of private law and statute law
- This is a statutory corporation with a statutory mandate to rent to low income people, and mandate to
management property including terminate properties
- Private law: landlord and tenant
Court says: True that if taking a possible benefit, need procedural fairness
Notice and comment
- Propose a meeting with her, lay it all out
- Fair notice of what’s moving you to take this action, which is harmful to her
- Give her a chance to make her case
- In the end, her appeal was dismissed because she had multiple descriptions of what was going on
- W’s procedural rights were satisfied
Hatfield v Fort Saskatchewan General Hospital (if decision is final, must follow procedural standards)
Doctor applying for hospital privileges
- “Like Mrs. Webb like last time – subsidized housing case”, “difference is that she actually had it”
- But this is an application case, and not a removal of the benefit case – like the Webb case
- In hospitals act – stat procedure set out to get hospital privileges, hospital by-laws pursuant to statute which
provides the procedure
Procedure: application has to be sent to college of physicians and surgeons, to chief of medical staff, and hospitals
appointments committee
- These people make recommendation on it pursuant to by law section 11
- Hospital then decides
12
Admin Law Summary
- Procedure is statutory
- Hospital sent it to college and not to the chief of medical staff, and hospital appointments committee
- College approved the appointment
- The board rejects college recommendation
- H reapplied next year
Application gets sent to appointments committee --> contrary to statute --> gets rejected by committee
- H brings application for judicial review
The decision is affected by procedural error, the judge focuses on the procedural error
- you cannot get privileges through judicial review… need to pursue through redone application
Judge orders board to give reasons reasons (as requested by H)
- if the committee made negative decision, has to be based on deficient skills + experience
You cannot write too strongly worded letter to the board, small first
- “Look at the reasons before going to the court for judicial review”
- “Credentials, training, suitability, insurance’
- If the decision of an admin decision maker is final, they must adhere to procedural standards.
- Failure to follow right procedural standards will quash decision by certiorari.
Abel v Penetanguishene
- People who were found not guilty on reason of insanity
- Put in mental institution – the people apply for release
- Decision committee makes decision, goes to the minister for ultimate approval
- Abel is in mental health centre, wants to get out, makes application to the centre for docs that is for his case
- Psychiatric reports, incident reports Abel wants them
- Centre says no
Abel makes request to advisory review board to give him the docs
- Docs will allow Abel chance to cross examine the evidence
- Also give Abel better chance to use his own expert to refute other side
- Review board says no jurisdiction to give docs – court disagrees
You cannot withhold info about him that someone else has on the basis that the medical report would harm him
- Baker methodology here since impact on person is very significant, fair procedure: Abel needs to know the
case that needs to be met
Because a favourable report was essentially the only chance of release, it attracted at least some procedural fairness.
- Re: releasing documents, court required duty to act fairly – a rule of natural justice is that a party must have an
adequate opportunity of knowing the case he has to meet, answering it, and putting forward his own case.
- Non-disposive decisions will not trigger procedural fairness, but as a decision becomes increasingly final, the
threshold drops.
- Proximity between the preliminary decision-maker (doctor) and the final decision maker is critical in
determining if there is a duty of fairness.
Irvine v Canada
- Order from restrictive trade practices committee for 29 people to appear and give evidence under oath
- Hearing officer is appointed by the chair to examine the 29 witnesses, no charges, but statutory authority that
requires them to appear and give evidence
- Stat machinery is the hearing officer will hear their evidence in camera
- Limited right for investigative person to be present when witnesses are being examined
- Person being examined has limited examination rights
- Hearing officer will go to director, if they found something amis with the evidence they will hold hearing and if
they report to the minister they will make a hearing on what to do
- Hearing officer makes some orders on conduct of hearing for the 29th witnesses
- No disclosure of grounds for inquiry
- No right to be present when witnesses examined
- No cross examination rights
- No adjournment to obtain counsel
13
Admin Law Summary
- Hearing officer can make recommendation – the hearing is in camera
- Transcript will not be published, director will make statement of evidence and only minister make decision
Court says: this is only really 1st stage of info gathering, purely investigatory, therefore – no procedural rights
- What hearing officer did is okay
This is not advisory, not recommendations --> just stage to ascertain the facts, no procedural rights
- “look at the procedure in its setting and ask whether it operates unfairly” --> to see if it is investigatory or not
look at the statutory, institutional, administrative setting
Guay v Lafleur
Non-dispositive decisions do not require natural justice
Pergamon Press
Exception to non-disposive rule
- Denning: Investigators into the affairs of Pergamon Press, report could have wide repercussions could lead to
judicial proceedings against them
Importantly, Denning says report can ruin reputation
- The stain can never be washed away
This is why need notice and comment rights against investigating, even though they’re not making the decision
Legitimate Expectations, Public Law Estoppel
Baker 4 – Legitimate Expectations
Doctrine of legitimate expectations creates procedural rights and not substantive rights – part of fair process
“principle affords party affected by decision of public official opportunity to make representations in circumstances where
party has been led to believe his or her rights would not be affected without consultation” – old st. Boniface association
Doctrine: does not create substantive rights, it can create a right to make representations or to be consulted. Does not fetter
the decision following rep or consults – Sopinka J
- if there is expected procedure that procedure is required
- if expected procedure required, procedural rights expanded (where doctrine is engaged)
There is controversy on whether doctrine of legitimate expectation is more than procedural fairness --> something more
on its own
Conditions that create legitimate expectations (whatever it is)
- express promise (result would be more procedure – note that the doctrine is moving)
- Conduct of gov’t official (conduct should be predictable and regular, should organize their life) --> regular not
arbitrary
- Regular practice of gov’t
o “Legitimate, or reasonable, expectation may…”
o “Inconsistent with good administration”
o Gov’t is not arbitrary, not inconsistent. Gives rise to expectations
o Implication from policy or statute
o Implication from non-statutory guidelines
o Nature of interest affected
Suresh case (as an example) – legitimate expectation
Convention against torture: no deportation to country where “substantial grounds” to believe risk of torture
- Canada is a signatory and ratified it
- “Substantial grounds” raised duty to afford opportunity to show and defend these grounds
- implication from the statute
“You saw this before in Winecki – fit and proper person” “Dr Hatfield – credentials, suitability, experience”
- “Substantial grounds” – open texture, “wishy washy”
Nature of the interest affected
- Minister has to explain in writing why he/she doesn’t believe substantial risk of torture – as an example
- These are procedural not substantive rights!!!
14
Admin Law Summary
-
More important the interest, more legitimate expectation, expand baker 4, more requirement for procedural
fairness
Legitimate expectation arising from statute, does person need to be aware of the statute?
Furey v RC School Board
- School closing disputed by parents
- Important factors
- Consultative process
- Public communication
- Non-statutory guidelines
- Goes to NFLD CA – parents are unrepresented by council
- Parents weren’t aware of the statute, so CA determined that legitimate expectation not created
SCC disagrees
- Whether expectation in the mind or not irrelevant, this is not private law
- Court referred convention of torture in Suresh but not Baker, why?
- Court likely was just moved by facts in Suresh
Apotex vs Canada
- Minister says A will be consulted before regulations are made
- But no consultation
- The regulations made disappoints Canadian Drug Manufacturer’s Association
- In Inuit similar situation: there is a spectrum – the exercise of stat powers that can be characterized as
legislative get no procedure – defining what is legislative depends on the margins --> here it is legislation,
Homex style --> in theory: legislation = no fair process/duty of fairness
Evans J
- Regs are “legislative” end of the spectrum of powers
- But subordinate legislation can be lawfully made in breach of categorical and specific assurance of prior
consultation given to individual by responsible minister of the crown
- Not application of duty of fairness that can be applied, should be application of doctrine of legitimate
expectations --> legitimate expectations cut out of duty of fairness
Holding gov’t undertaking on individual behalf
- Matter of individual justice
Legitimate expectation is more of a matter of individual justice
- Gov’t must have basic decency to keep promises it made
- Value is to prevent procedural arbitrariness
- Evans wants to prevent this
- Where the promise/expectation arises from promise, you will be consulted
- If there is a reliance interest, decency – gov’t keeps its promises
- “non-discriminatory application in public admin of procedural norms established by past practice or published
guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking”
- Arbitrariness, decency, prevent abuse of powers
- Legitimate expectation not just branch of duty of fairness, it serves different purposes
- It is like procedural fairness in that the breach of legitimate expectation leads to imposition of procedural duties
--> there is an overlap
- Different purposes = created in different ways
- Here then the minister created a specific undertaking
- Because it is unlike procedural fairness, not confined to the exercise of statutory powers
- Legitimate expectation can apply to exercise of legislative powers where there is specific promise from
minister/deputy that said you will be consulted
- Promise of procedure – you will be enforced by court
Evans J’s colleagues disagree
- The minister did not make regulation, the governor in council did
- The GiC did not make promise to consult, so they’re not bound by it
Problem is that practically GiC is the ministers…
15
Admin Law Summary
This issue went to SCC Mt Sinai Hospital
- The SCC has yet to address this – area of contention
Mt. Sinai Hospital Centre v Quebec (Minister of Health and Social Sciences) case
- Move to Montreal and you will get a new permit
- Hospital moved to Mtl, but no permit
- Counsel made different arguments/grounds
Doctrine of legitimate expectation looks to conduct of the public authority in exercise of that power: established
practices, conduct or representations that can be characterized as clear, unambiguous and unqualified
expectations must not conflict with public authority’s stat remit (the mandate of the statute)
- Expectation cannot conflict with what the statute says
Doctrine of legitimate expectation sometimes treated as form of estoppel
- Applicant who relies on doctrine of legitimate expectations may show, but not necessarily have to show that
he/she aware of such conduct, or that it relied on with detrimental results
Value: promoting “regularity, predictability, and certainty in gov’ts dealing with the public”
“procedure is broad” – sometimes hard to separate procedural from substantive
Procedure is broad term. Procedural – rather than substantive --> you should do so
- A lot is going on, moving,
Result of case: decision is set aside because of breach of procedural fairness, not necessary to go to legitimate
expectation
Canada v Mavi
- Gov’t responsible for clear, unqualified, precise undertakings, that will give rise to legitimate expectation
- Breach of duty of fairness not to live up to those
- Undertakings that were given are… as a result of sponsorships… clear and unambiguous
- ON policies consistent with those undertakings
“No road map to what’s first or second between procedural fairness/legitimate expectations”
Public Law Estoppel
Discussed in Mt Sinai Hospital
4 characteristics from US law
- Unequivocal advice from unusually authoritative source
- Reasonable reliance on that advice by individual
- Extreme harm resulting from that reliance
- Gross injustice to the individual in the absence of judicial estoppel
- Public Law Estoppel requires an appreciation of the legislative intent in the power sought to be estopped
- Circumstances that create an estoppel may have to yield to an overriding public interest in the legislative text.
- Estoppel may be available to give substantive relief against a public authority, including a Minister, in narrow
circumstances.
- Must look at legislative intent. Wording of statute is important.
Baker 5 – Agency Procedural Choices
“Duty of fairness should respect the choices of procedure made by agency itself, particularly when statute leaves to the
decision maker the ability to choose its own procedures, or when the agency has an expertise in determining what
procedures are appropriate” – pg. 57
Pg. 58 – applying 5th factor, statute gives flexibility to minister to decide on the proper procedure and immigration officers
as practice don’t conduct interviews in all cases
Some factors suggest stricter requirements for fairness, other suggest more relaxed requirements
Court showed deference to the minister because the ministry themselves have expertise…
Baker 5 (look at the procedure, deference to minister) --> but weighed against other facts also
Constitutional Law foundations
Legislative intent is the basis of the procedural protection we have been discussing
- But constitutional standards which trump legislative intent
16
Admin Law Summary
In Suresh – court says not constitutional
- To evaluate constitutionality, picked up basis of baker and used it for s. 7 analysis
- The procedures to deport did not meet constitutional standards…
- The court says that the minister has to write and explain… because the constitution requires it
Quasi-constitutional
- Rule of stat interpretation: “Canadian bill of rights take precedence” if there is conflict with it
Courts are aware this is a weak foundation
Differences between Canadian bill of rights and charter s. 7
- Protects property rights in the bill, charter does not
- BR s. 2 is broader, produces cumulative effects pg. 198 – 199
- BR has no s. 32 requirement
- Possibly, s. 2(e) applies to corporations
- When property rights gets implicated, the BR can become relevant…
Some attempts to do things were tried in Authorson v Veterans Affairs
- Legislation provided that crown would not pay interest on the pension $ withheld by the veterans
- Challenged on expropriation of property without compensation --> theory was attempted to base it on BR s. 1(a)
Bill of Rights is quasi-constitutional, thus will collapse under a clear and ambiguous intent in the statute --> so they can
override BR
Charter is different
- Has application criteria s. 32 and robust case law that explains how the charter reaches gov’t conduct and
legislative activity, executive activity --> robust case law for gov’t action, but doesn’t apply between private
individuals/case law
- To engage constitutional source must have gov’t conduct, breach of s. 7 right (life, liberty, and security of the
person) --> fundamental justice s. 1 (which is a robust requirement)
Procedural protection in Suresh
- 11(d) anyone charged in offence has right for fair and proper hearing by tribunal etc.
Requirement in s. 11 that person be charged with offence
Julie Guindon v Canada
- Lawyer participates in tact sham, conduct is “dishonest”
- CRA imposes s. 163 ITA penalty of $546,747 for her conduct
- G is a conduit, G reviewed docs, but didn’t read them, signs them as chairman of the charity
- Minister goes after her through tax act powers, audits, preparer pays penalty
- Is she person charged with an offence?
Court did adopt somewhat narrow definition of s. 11
- Various indicia useful to see if it is criminal proceeding
- Proceedings must be criminal in nature (public, public order, public activity)
- More like audit in this case
- There must be a true penalty ($ not necessarily enough)
Singh v Canada
- Singhs are claiming convention refugee status in Canada
- Goes to refugee status advisory committee – under s. 2.1 refugee is one who has well-founded fear of
persecution
- They’re denied at committee, goes to immigration appeal board
- Process based on written record not oral hearing --> S has right of appeal to immigration appeal board
- The process is (by statute) to screen out the ones with no chance of success to the ones that are real
- Screening function based on written application
- Singhs are screened out because their written app doesn’t clear reasonable grounds hurdle for oral hearing at
the immigration appeal board
- They had oral interview with immigration officer, but he has no say in the matter
17
Admin Law Summary
Statutory construction of scheme
- S.2(1) refugee = “well-founded fear of persecution [WFP]”
- S.45: Ref advisory committee advises minister whether WFP established (written proceeding)
- s.70-71: appeal to IAB; IAB weeds out applicants with no reasonable grounds to believe WFP can be
established
Singh screened out at s. 71 stage hearing
Legislature said very clearly that there is no oral hearing
Wilson J “my greatest concern about the procedural scheme is not with the absence of an oral hearing in and of itself,
but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the
case he has to meet”
Beetz J “one full oral hearing required under Bill of Rights”
Suresh v Canada is later than this case – no oral hearing*
- Not a refugee, application for permanent residency (security concerns)
- Security certificate detention, deportation
Legislated
- Suresh, whose complaint is deportation to torture
- Not entitled to oral hearing, but instead, entitled to extensive procedures
- Minister had to give all the info which he was relying on
- A way of an oral hearing required under s2 (??)
Charkaoui I (must know case to meet, s7 challenge deportation to torture)*
- IRPA authorizes two ministers to issue security certificate
- Results in C’s detention
- Certificate & detention reviewed by federal court of justice
- Process deprives C of some info on which certificate and detention based
- C doesn’t have the evidence
- S. 7: violation of life, liberty, or security of the person
- Court says judge is testing reasonableness of the application and the judge is required to be actively
participating in questioning the witness (?)
- Court thought that a designated special advocated could participate in the secret hearing, keep the process
clean, assist in challenging the evidence, and make sure all evidence is presented
- And because the procedure wasn’t part of this legislation, didn’t pass constitutional muster
- Denied fair opportunity to know the case to meet, very similar to Suresh
- Person named on the certificate is to know what case is held against them (and the info)
- To be in a position to raise legal objections, challenge evidence, you have to know the case you have to meet.
Charkaoui II (destroyed CSIS recording and notes – serious breach to s. 7 liberty – duty to disclose)
The process of detention review brings to light a document Charkaoui doesn’t know he has - a recording of a CSIS
interview
- Notes destroyed, no record (because policy to destroy notes), no recording of interviews
SCC: Notes serious consequences to liberty of procedure (s7 protection)
- Disclosure is necessary
- Disclosure goes beyond the summary provided
- Expanded right to procedural fairness based on Suresh
- Not just a duty to disclose, but have to retain notes, destruction of notes = constitutional violation
- Premature to see how destruction of notes going to affect…. (???) designated judge will have to apply SCC’s ruling
- Remedy is to confirm duty to disclose the entire file to the designated judge, and after the court has filtered it,
disclose it further to Charkaoui and his counsel
JG v New Brunswick (complex custody haering, special allowance for funded counsel – s. 7 security to person)
- Kids taken away by gov’t
- Minister makes application to extend custody order by 6 months
18
Admin Law Summary
- Complex hearing: 15 witnesses, expert representatives
- All parties were legally represented except the mother
- Mom doesn’t have $ for representation, doesn’t qualify for legal aid
- Mom does have right to fair hearing on constitutional grounds: security of the person..
- Mom also alleges liberty – some buy in from other judges
- “Testing the constitutional basis through baker method like in Suresh”
SCC
- Security of the person/liberty deprivation
- Fair hearing considerations:
- Interest at stake
- Complexity of proceeding
- Capacities of mother
S. 7 right – yes or no? Then look at appropriate remedy is s. 7 applies
Without declaring a universal right to legal aid, court goes out of its way to say that in the special circumstances, she
must be provided with funded counsel
Bill of rights applies narrowly
- Narrow range of cases where s. 7 rights are implicated where s. 32 is activated
- Anything not federal – Bill of rights no applicable
- Cannot use constitutional platforms for everything
o Sources of due process (criminal law duty of fair process) is narrower than common law
SPPA and Other Procedural Statutes
Requirements of section 3
- Tribunal
- Statutory function
Procedural fairness (natural justice), either on or off
Statutory powers procedures act - Statute applies – section 3 (pg. 279 of text)
- S. 3: there has to be a tribunal (defined in s. 1)
- Power to decide “kinds of things you see in Irvine”
- This rules out preliminary investigatory step
- Must be a power to decide, not power to advise
- The definition of statutory power of decision s. 1
- Complicated definition, boil it down in palatable form.
Hearing required by statute… this statute tells you what the procedural content is
“Or otherwise by law” --> it might be required by the “cooper type” method, implication to what the legislation might
have intended, even though that’s not necessarily what is set out in statute
Idea of on or off not quite so neatly sculpted to fit into the modern law --> “discordant overtone given in that phrase”
- S. 3(2)(g) tells you when the statute is not on, 2 stage advisory decisions excluded
Where a hearing is required by statute, this statute tells the decision maker and the parties what the hearing has to look
like, what the procedural rights are, what the content of the procedure must be “prickly” --> work through s. 3
“What’s in the act if it does apply” (after you apply s. 3 and use s. 1)
- if it is on: written, electronic or combined hearings on consent
o unless it is prejudicial to the parties proven
Exclusions at s 3(2)
- Does not apply when 1 or more required to do an investigation and make a recommendation where the report is
not legally binding (ie: Human Rights proceeding, law society proceeding)
- This is important, because there are lots of multi-stage proceedings
- Procedural rights are weakened in multi-stage proceedings.
19
Admin Law Summary
Procedures for pre-hearing disclosure (s. 5.4(1))
Trial type hearing required
- Formal notice
- Right to counsel
- Cross-examination rights
- Relaxed evidence rules
- Reasons required on request
- “Witnesses may have counsel” – s. 11
Pretty formal procedure, but not full discovery rights, no affidavit of docs, these are the important ones
- The act is not the end all: act is the minimum procedural code
- Where statutes require a hearing before exercise of statutory power, the act is on (or if common law, quasi-judicial
type thing – would require hearing)
- Where the act is on, it gives you specification of the procedural content that is required at minimum
- Even when act is on, common law might require more
- If the act is on, notice is required under s. 6
General common law requirements for notice
- Notice is required “to show up”
Knowing the case to meet, knowing to show up
- Preparation, appearance, challenging the opposing case, elicit response that can assist with good administration,
invite comments
General themes from cases regarding notice
- Time, method (how is it given?), adequacy (Re Taylor)
Re Taylor (pg. 302) – problems w/ notice, unclear, high consequence needs high notice)
- Horse tested positive for prohibited substance
- Taylor, who is responsible for the horse, suspended and fined after questioning by stewards and a hearing
- “Presence required to provide explanation of this positive test”
- Taylor on certiorari says no one told him about the hearing…
- “Taylor knew or ought to have known”, “never an answer to defective notice”
• Court found that he should have been advised that penalties up to and including suspension might be imposed
• Had notice set out hearing would have addressed Taylor’s responsibility and consequences
• The higher the consequence severity, the higher the detail required on the notice (comes from Baker #3)
Re Chester (pg. 303) – notice too general – not explaining case to meet
- Prison officials wanted to move Chester into solitary
- Notice says the transfer is being considered, invited submissions
- Chester addresses the incident of July 6, 1982 as highlighted in the notice
- C brings certiorari
Judge found the notice misleading and inadequate taking into considering that solitary is vastly different
- Issues of notice not confined to pre-hearing notice, can also arise during course of hearing
- Reasonable person would conclude that reason behind consideration was incident of July 6, 1982
- Notice too general – not explaining case to meet – baker #3
Canada v Krever - notice should be detailed, early as possible, don’t make findings not supposed to make, reputational
- Commissioner mandate is to investigate and make report, no mandate to find responsibility on a party - Red
Cross tainted blood scandal
- Holds public hearings
- The act requires that before he makes report, if he imputes bad character on others he must give those people
notice to give them chance to respond
- Near end of hearings: served notices on a whole number of people
All notices sent out are challenged by certiorari --> says waited too late
- Also argue that cannot make civil liability findings
20
Admin Law Summary
- Purposes of the notices is to give the notified people time to prepare to respond to any allegations against him
Notices should be as detailed as possible (pg. 308) and as early as possible (which was met)
- “Avoid using language that uses civil liability terms”, “careful to steer away from criminal court language”
- Court is not going to be overly strict, stay away from the “buzzwords”
- Notices weren’t late, and were fair in the circumstances
•
Purpose is to allow parties to prepare and respond, so the more detail, the better. (EXAM)
•
Give a full opportunity to respond
•
Takeaway: Reputational consequences are serious
Notice should be detailed, as early as possible, don’t make findings you weren’t asked to make (ie: Civil and criminal).
In Pikangikum - notice must be specific enough to have meaningful discussion
- Water treatment, fuel spill, school
“Regional directive… contemplates giving notice… of the difficulty/fault, before imposing co-management, so as to
allow for meaningful discussion of the difficulty/default… the recipient was entitled to notice of the difficulty or
default as part of the right to procedural fairness” - Paras 102 – 104
- A notice must be specific enough to have a meaningful discussion
- Statutory Institutional context – thus you can’t have a decision until after you have a discussion
Applicability of cases
- see that statutory, institutional, admin context so work through baker roadmap
Cases help us work through, they’re not reflexes
- Remember that also baker is not exhaustive nor rigid
- Governing criteria of baker: to be fair/fairness
Discovery
Clifford v AG Ontario – pg. 25
Firefighter – who is entitled to the death benefits?
- Tribunal to decide
- Girlfriend claims death benefits, wife objects
- Procedure is similar to civil trial
Court makes this point on decision review
- Require parties to exchange information
Tribunal did say the gf and wife should exchange all relevant documents
Objection taken by unsuccessful wife at the conclusion on judicial review, say not fair proceeding
Court says right to prior oral discovery not essential ingredient to fair hearing (pg. 26)
- “No trial by ambush” here
- Pre hearing disclosure by tribunal was fair/reasonable
- Knowing the case to meet, full prep
- If doc was not produced
- These processes are designed to be faster, cheap, not going to have same procedural requirements
Pre-hearing delay - Blencoe v HRC (BC) – delay can be remedied in judicial review
Sexual harassment complaint to HRC
- HRC delays 32 months, 5 months without explanation
Admin requirements
- Time table unreasonable with requirements of case?
- What caused it
- What is impact/prejudice to party
- Delay does not need to amount of abuse of process
Human rights process different than criminal, on admin issue, the delay will not affect community
- Remedy is an order to expedite hearing
21
Admin Law Summary
-
Takeaway: Admin delay can be remedied on judicial review, either because it causes prejudice to the fairness
of the hearing (memories fade, people die), or because it causes some other type of prejudice (ie: Messing up
Blencoe’s life)
Set precedent , not to help out Blencoe
Assessing delay:
- Is time taken unreasonable compared to inherent requirements of case?
- Clauses
- Impact or prejudice
Oral hearings
Indicators:
- Factual findings would be critical to the decision  Facts are contested/adjudicative facts
- Oral hearings are good at dealing with this
- “Without the truth there is no justice”
These are indicators because a trial/oral hearing is a “crucible of truth” --> contentions of fact and then findings are made
Especially if what is at issue are:
- Adjudicative (not legislative) facts
- Facts detailing who did what/when/why/how/with what intent
- Credibility
- Factual findings final (no review)
- If there is a high Baker 3 reading (decision is important to the individual that gives rise to oral healing
requirement)
Legislative facts relate to questions of policy, discretion
Hundal (pg. 327) – no need for hearing, driver’s license suspension, not a credibility issue, have all the facts
Driver’s license suspension
- Court held that superindenant did not need to do an in-person hearing when suspending licence under demerit
point system.
- Such a hearing was not necessary for a proper consideration of a plea of mitigation against the operation of
normal rules.
- An opportunity to reply in writing was adequate.
Full oral hearing not necessary, opportunity to respond in writing adequate
Masters v Ontario – purely investigative process, very few rights, exacerbated by appointment at pleasure ( pg 311)
- Bob Rae, as premier of ON, hired Masters as a deputy (employment at the pleasure of the premier) →
discretionary appointment
- Masters was ON police officer in general in NY
- After masters installed in NY, several rumours of sexual harassment surrounding him
- Rae appoints investigator, Mary Eberts to investigate the rumours
- 1994: Eberts was a leading feminist lawyer
- Rae suspends Masters with pay
- Eberts interviews 45 witnesses, Masters not present during any of them
- She identifies 7 incidents of potential sexual harassment
- Aug 24, 6 pg summary of what she found delivered
- Through counsel, Masters requests, but Eberts refuses
- List of questions asked
- Notes, transcripts, tapes of interviews
- Investigators’ names
- Interview witnesses (okay, but Ontario will not require employees to attend)
All of these requests are refused
In Sept: Masters deliver reply (33 para) – denying each allegation
22
Admin Law Summary
-
Late sept: Ebert reinterview some witnesses, Master is not reinterviewed, M is not advised of the results
Oct 5 – Eberts gives final report to secretary of cabinet, who gives to M
Oct 15 – M responds to final report
Both reports are given to the premier
Note that Eberts did not tell premier what should happen, she only found facts
Premier decides to recall Masters, offer him another position --> masters does not accept alternate position,
brings judicial review application alleging bias against Ebert’s report
This case is similar to the Nicholson case, M was holding an office of pleasure
- Nicholson had career expectations, with a kind of tenure
- N was another “cog in the machine of the police dept”
- M is unlike N, M knowing or ought to have known that position he was in was politically sensitive
- There isn’t a clean determination of the facts
- No confrontation of witnesses, no examination of witnesses, M doesn’t know which people interviewed, what
questions posed
The risk of error is high
Court says
- Premier not conducting a trial
- “There is a much greater margin for error in the ‘findings’ of any investigation”
- Premier was not making a board policy type decision
- Premier was making a decision where his reputation is at stake
- To complainant’s rights also to be decided him
- Judge says M is not Nicholson
- Investigating process is approved
- Attack not on Premier’s decision, it was on Ebert’s report, Ebert was the one who was unfair
- Attacking the investigation – similar to Irving oil, where the report is not made public
- He didn’t have a recommendation
- Attacking the premier is not that viable in this situation
- With hindsight on what the judge said, hard to see if this argument would go any where
Doesn’t get the process he’s asking for because it is an investigative process – two-pronged process. Purely
investigatory – decision has not been made
Take-away:
- Investigative report
- Highly reputational – huge reputational damage
- Very few rights (because investigative)
- Nature of position makes it highly legislative…at pleasure, cannot get a stain on the shelf
- Not an oral hearing
Khan v University of Ottawa (student gets F, booklet allegedly missing, allow oral hearing if you don’t believe her)
- K gets F in evidence, appeals to exam committee
- No notice of committee meeting, no opportunity to appear before committee
- Appeal to senate
- K misunderstood test format
On majority, courts split, pg. 345
- Khan should be given in hearing --> khan
What’s the cost for doing it as an oral hearing
- But for Khan, stakes are higher because she would be kicked out of law school
Baker 1 – 5
- Nature of decision divides the minority and majority
- Issue is: evaluation of exam, written procedure is appropriate – minority
- Baker 3, this is important to her, means loss of the year – majority
- Baker 5 – there are procedures, and it makes sense
The point is, what moves the decision, prof thinks you go through baker 1- 5
“Office at pleasure, greater discretion to senate..”
More or less accurate might be better with oral hearing (re: Brazeau in class)
23
Admin Law Summary
Open vs. In Camera Hearings
Open hearings presumed
- Charter, s. 2(b)
- SPPA, s. 9
- Immigration Act, Health Professions Act
Countervailing pressures
- Security
- Privacy
- Business secrets
These held in camera, summaries prepared, in a way that won’t implicate undercover assets, etc
- Will not expose identity of intelligent assets
Various procedural innovations that can reconcile competing values where they appear
- Holding hearing in camera, with providing summary after the fact
- Balancing
Laland – police who had sex with prostitutes denied in camera trial, court rules media has right to attend
Right to counsel indicators:
- Complexity of legal issues
- Complexity of procedure
- Capacity to present own case
- Possibility of criminal charges (some admin hearings)
- High Baker 3 factor
- Requirement for speed, cost, efficiency.
- More procedure – reduce the chance of error
Men’s clothing manufacturers – pg. 346 – labour arbitrator
Judicial review of Arthur’s decision to deny counsel
- “Economic life or death arbitration for survival of company” – high baker #3
Arbitration case
• Employee’s rep would present the grievance
• Employer’s rep would state the employer’s perspective
• A decision would be taken
● Arbitrator refuses to allow lawyers to attend
Judicial review is taken of the arbitrator’s ruling, the court says these are both artificial persons, corporate entities
- They can only appear by representation/agent
- Can’t exclude the profession that was created to be agents.
- Even if you had discretion to deny/exclude counsel, you exercised it improperly.
Complex issue
- Counsel should have been afforded
Re Parrish – ship captain compelled to attend safety board, no entitlement to counsel
- Accident: 2 ships collide
- Officials from Cdn transport accident investigation and safety board want to talk to captain right away
- Captain shows up with 2 lawyers, chairman of the investigation says no counsel required --> preliminary
investigation - chair refuses to interview him
- He refuses to answer any questions and seeks judicial review of the denial of counsel, court is very aggressive
against counsel
- Civil or criminal consequences following, reputational impact
Report will likely be not confidential --> it is investigatory report, he should have right to counsel
- There is a hearing in place --> just whether there should be counsel at the hearing
Could Parrish have gone the other way? Yes
Re Irvine
24
Admin Law Summary
-
Report goes to director, report confidential
Director can pass it up in Irvine, but if there is allegation in report that is going to be ventilated by the
commission, there has to be full hearing by commission
Report that goes to director cannot be released
Howard v Stony Mountain
- Certain charges made against him penitentiary regulations – possession of narcotic, disrespectful language
- Charges categorized as flagrant
- If convicted – additional 2/3 of a year in jail
Court
- Liberty interest, can be processed under s. 7 using baker type formula
- Denial of counsel is not fair in the circumstances
- These charges difficult to defend, court orders counsel provided
Joplin v Vancouver Police chief (pg. 364)
- Police discipline case, max penalty is dismissal/reduction in rank
- Penalty is a lesser one, officer can be represented by member of police force only
Court
- Serious career implications, discipline can affect pension, impede police career --> Baker 3
- Counsel has to be provided even for this lesser, serious offence
Disclosure
- Issue/Content of procedural fairness
What would motivate courts to determine procedures in admin type procedures?
- With respect to disclosure
o Ability for tribunal to take facts not proven
- Evidentiary requirements
- Cross examination
Giving parties to a proceeding info that decision maker has accumulated
- Generally: party entitled to materials and submissions considered by the tribunal
Reasons for disclosure
- Individuals should know what gov’t knows about them
- Increases participation of persons in decision also process that affects them
- In theory, could increase accountability of boards and the quality of democracy
- Could improve decisions by exposing unjustifiable info to scrutiny
Reasons against disclosure
- Costs time, money to disclose
- Some info received by agency is confidential/subject to security or privacy interest
- Agency sometimes receive sensitive business info
- Security, privacy
- Problem of staff reports --> “agency’s relationship with the professional staff”
Exceptions to disclosure:
- Privilege
- Agency’s operational requirements
- Privacy
- Commercial sensitivity
- Low Baker #3
- Police, security, etc
Kane v UBC (pg. 371)
- K is a prof, alleged improper use of computers, suspended, avenue for appeal
- Appeal is by way of hearing before the board, K attends hearing in person, president does as well
25
Admin Law Summary
-
After hearing, board goes out for dinner w/ president, and (according to one of the board members) at that
dinner, the president who didn’t participate in the board hearing or vote, gave the board the necessary facts
- K was not at that dinner
- K makes judicial review on that basis
Dickson J for the SCC agrees with him
- Professional discipline type case – with severe consequences
- Specific and not general
- Requirements for disclosure are high and not being met – invalidated
Don’t add critical adjudicative facts after hearing, out of the presence of the accused wrongdoer
ON (Human Rights Commission) v ON (Board of Inquiry into Northwestern Gen Hospital)
- Similar situation as in Masters
- Disclosure in a similar type environment
Nurses at northwestern gen complaining about racial discrimination by the hospital
- According to Adams J – Masters was at the judicial end of the spectrum (political aspect to it)
- The board of inquiry that is ventilating the complaint, orders commission and investigators at the investigation
stage to give to hospital all statements made by complainants to commission
o Ebert specifically withheld this info from Masters
Challenge on that basis  Similar to masters
- Difference is that here it is quasi-judicial tribunal decides what to do, in masters – the premier is unencumbered
- Subtle difference point: nature of the decision in its statutory context is very different --> Baker #2
- The decision is pretty much the same – investigator notes has to be given, but the second level is
- This court decides that allegations are serious
- Negative finding by the board would be severe to the hospital
- Public importance that allegations of racial discrimination arise and be washed from society
- Concentrate evidence/argument/inference the result (and look at Baker)
If any racial discrimination allegations, serious and should be addressed in a conscientious manner
Suresh (pg. 269-270):
- Must be complete disclosure in a very formal way by minister to meet case. Court was very specific.
- Reason for disclosure is to allow him full knowledge of evidence and give them opportunity to challenge it
- Going to read in process, have to tell him the case to meet, disclose what the case was built on
- Give Suresh opportunity to comment to allow chance to correct factual inaccuracies because memo might be
inaccurate
Charkaoui II (para 65) – Disclosure: failed to disclose that notes of interview with CSIS destroyed by CSIS, should have
been disclosed instead
Mission Institution v Khela (pg. 140)
- K is in medium security institution
- Security report which has info that he hired two other prisoners there to stab someone else, paid for the K hit
with heroin
- He thus was transferred back to max security institution, transfer was rushed
- K brings habeas corpus application that this transfer unjust
- Certain info is withheld
- There were tips from informants
- Other material withheld
- Warden has summary of info which was also withheld
- Scoring matrix that institution uses in situations like this which is also withheld
- Info about reliability of the sources, and statements made by the sources that go into the scoring matrix
- Institution has valuable snitches inside that provide info (intel assets)
Statute allows commission to withhold info where it would jeopardize investigation
SCC holds that info about reliability of sources should have been disclosed
- Vague statements not enough
26
Admin Law Summary
-
Withholding scoring matrix unfair, when warden decided to transfer him, warden used the scoring matrix, used
the info that went into scoring matrix
Action of K is not issue in this case – concerned about procedural fairness only
S. 27 of Corrections and Conditional Release Act says inmate is entitled to make representations
CIBA – Geiger Ltd v Canada (Patent Review Board)**
Procedure: formal hearing
- Manufacturer want disclosure of all documents in the Board’s possession which related to matters in issue in
the s. 83 hearing
- Regulatory tribunal – many functions
- Board function not to acquire info solely for investigative purposes
- Fairness is met when disclosure of all docs that will be relied on
Different than northwestern hospital because there you need to disclose witness statements and also list of witnesses
they didn’t rely on --> baker #2
Why did the board not have to reveal?
- Board’s purpose is not to obtain information just for investigative purposes, not only to tag these guys
- Reason they get information is to monitor prices
Toshiba case – anti-dumping tribunal
- Staff reports at issue: not disclosed
- Reports contained factual statements which bear on the ultimate issue, courts
- Comments on the evidence – staff comments
- Comments on the submissions made at inquiry – you need to protect(confidential)
- Staff could really influence decisions
If you’re commenting on evidence, it is too much like evidence and you have to allow corrections to misperceptions
Trans-Quebec v maritime
Disclosure of staff papers again – court rules that if decisions based on staff reports which other party does not have
access, could make process unfair
Re B’nai Brith (pg. 409)
- Inquiry to see if Nazi war criminals are in Canada
- Commission hires working group of profs and practitioners to consider the legal problem
- There is a dispute about what Canada can and cannot do about them
- A judicial review was brought, failed, a federal court of appeal – court says report must be disclosed
This is not an adjudicative fact – this is opinion – it is important to decision, but not essential, disputed
Commissioner appointed under inquiries act, make recommendations from report through fact finding
Big spectrum of statutory context…
Many tribunals are appointed because they know stuff, when can they use what they know? To supplement the record of
evidence?
- Davis: reconcile procedural fairness with the need for full and free use of whatever expertness the agency may
have, including understanding based on experience and information
Agencies should also assume extra record facts
- But, applying this principle depends on whether facts are adjudicative, or if they’re just general legislative facts
Whether the facts are critical the decision, or whether facts are uncertain
- “You should always assume extra record facts”
Sivaguru pg. 417 of text - Refugee board: presenting evidence, board becomes suspicious
- Document centre info is not so obvious and notorious that it can be relied on in that case, can’t be brought via
official notice
27
Admin Law Summary
Lawal pg. 418
- Panel wants to verify newspaper article that was submitted to it, gets docs from Canadian high commissioner in
Nigeria to verify
- Sent stuff to complainant’s counsel, but does not reopen hearing
Court says material is not that could be judicially/officially noticed --> have to decide on the record…
- Use of newspaper as not part of record and applied did not have opportunity to comment
Huerto v College of P&S (pg. 145 of supplement)
- Complaints about H, college investigates whether he has adequate skills or knowledge to practice medicine
- Committee hears facts and testimony about that, hears expert testimony about what is the proper standard of
care that a reasonably competent physician would observe
- Committee said: each member of discipline committee expected to apply specialized knowledge and use that
expertise to assess evidence of committee
- Committee members are not cardiologists unlike H
- No affordability for H to test the accusation of misuse of personal medical knowledge
- All counts are quashed
- You got record of expert evidence presented before tribunal of doctors
- Doctors says they can use their own knowledge to supplement the facts
Judge says no, you can use expertise to assess the record, but cannot add to it
- Since judge is unsure whether doctors added stuff into it, this is unfair process
- Supplanting the evidence, you cannot rely on it, it would be procedurally unfair
Evidence
Must be:
- Relevant
- Probative (prove something)
- Reliable
- Fair opportunity to contradict
Court rules inapplicable (hearsay admissible, SPPA s15 &15.1)
Evidence and cross-examination requirements
- Look at how Baker map works with these procedures
- The evidentiary requirements for adjudicative type tribunals: parties that present evidence have to meet
requirements of relevance.
- The evidence should provide proof, it should be reliable in some way, there should be a fair opportunity to
contradict it.
- Hearsay is admissible (Statutory Power Procedures Act – specifically makes hearsay admissible in s3
- As the importance of the case rises (sexual assault complaints, professional misconduct complaints) so too does
the requirement for reliability of the evidence, hearsay or not, go up.
- Without giving a fair opportunity to reduce the risk of error by challenging it in some way, not necessarily
through formal courtroom procedures, but a fair opportunity to contradict it, the fairness of the proceeding will be
tested on that equation.
In Miller (TA) v Minister of Housing and Local Gov’t
- Denning: tribunals can act on any material logically probed in, even hearsay, as long as fair opportunity given
to contradict it – which was done
Université du Quebec à Trois-Rivières v Larocque
- Grievor wants to admit evidence, which is crucial to defence
- Arbitrator dis-allows it
- Arbitrator is master of procedure/evidence – not constrained by court rules of evidence
- Given that evidence is prohibitive, and the baker criteria
28
Admin Law Summary
-
Rejection we have is unfair
Larocque, working at a university, is found to have been deprived of a fair hearing because he was not allowed
to fully make out his case by presenting the relevant evidence.
R v Khan
- Allegation of sexual assault against the doctor
- 3.5 year old really could not give direct evidence, unlike in Bond (who was an adult)
- Court using hearsay evidence, says it is allowed in this discipline – in administrative and not criminal
proceeding
- As long as the hearsay evidence is reliable and sufficient opportunity for other side to contradict
Bond v New Brunswick (Management Board)
- Arbitration – arbitrator relies on hearsay evidence of what victim had told other people
- Here, the hearsay evidence was not sufficient to meet requirements of natural justice --> given the serious allegations
- There had to be a fair opportunity to contradict that, since there's no opportunity to challenge the evidence of
the complainant, of the victim.
Cross Examinations
- Cross examination can become quite important to test the reliability of various types of evidence (seen in above cases).
- Depending on the Baker factors, it could be required (more important/serious case, more importance placed on reliable
evidence).
- Suresh, Baker good examples where we have an administrative type determination being made about status or
qualifications or things of that nature.
- No adjudicative type model, no oral hearing, without the trappings of an oral hearing, the right to present evidence and
the right to cross examine.
- Where there is that type of hearing, for example, in the Statutory Powers Procedures Act, where its trigger is pulled,
there's a right to cross examine given by the sections on the screen.
Innisfil v Vespra
- How much land is necessary? OMB case
- Municipal board hearings governed by specific statute
- SPPA type hearing
Court says
- Not for tribunal to decide, right for cross-examination is given, would be clear statutory curtailment for that
right to be cut off
- It is for party to make out case for cross-examination
Re Stratchona v MacLab Ent
- Rezoning application, expert report from expert
- Expert on vacation, board invites written responses from expert
- Another expert report submitted that original expert report in accurate
- Submission that procedure unfair because original expert does not have opportunity to rebut
Court comments that it can't be cross examined doesn't make it inadmissible.
- It can be received as evidence.
- Fact that Bernhardt is not available to be cross examined may affect the weight that the tribunal is willing to
give it.
- In other words, if it can't be tested by cross examination, the risk of error goes up; and as the risk of error goes
up, the tribunal will accordingly depreciate its weight.
Report by expert who is away on vacation can be admitted, but has less weight because author not available to be crossexamined
Re B v CAS
- Testimony given by social worker as to what child told social worker
29
Admin Law Summary
- The child is not called as a witness
Court was critical of this
- Biggest point of critique: social worker knows the child will say it didn’t happen --> social worker trying to
recant that evidence
- This isn’t a fair way of going at it
- Counsel for respondent would not have succeeded if the child was called for witness
- Court: In these circumstances, where denial of right to cross-examine the alleged victim, the admission of
hearsay from the Social Worker did amount to denial of natural justice.
- Hearing fell below minimum level of fairness.
Djakovic v BC
- Workers comp case
- Tribunal denies cross-examination of expert by petitioner
- Court was critical of this
Institutional decisions
- Distinguish from personal decisions
Personal.
- Judge personally hear evidence, personally read submissions, personally decide, write opinions, identify with
rulings, specialization not required – case volumes limited
- Institutional
- Specialized & multidisciplinary
- Many experts add perspective
- Work as a team
- Decisions orchestrated
- Capabilities transcend individual
- Case volumes unlimited
Admin law constrains on institutional decisions
- Another maxim, He or she who decides the matter must be he or she who hears the matter. It can't be some
person hears it and another one decides it. If you're going to decide it, you have to hear the evidence, you have to
see the evidence, you have to make determinations of credibility.
- These are rules of construction that are applied to statutes, and they determine when and the extent to which
statutory authorities must actually personally hear or cannot delegate aspects of the process to others
Delegates non protest delegate – delegate may not delegate the task to someone else
- Vine v Dotdoard – disciplinary powers cannot be sub-delegated
- Morgan 456 – University discipline, sub delegate discipline of students
o Found president of uni can delegate discipline to deans (president has too full a portfolio… Needs to run
the facility, not discipline)
Jeff v New Zealand Marketing Board
- Board is supply side management system – establishing zones for exclusive supply arrangements
- The board holds hearings, witnesses are heard, some cross examination, get to the end of the time for the public
hearings, not everyone gets chance to say what they want to say
- Chair of the committee: says you can send in written submissions and we will hear them
- After close of hearing
- Chair and staff discuss in car Apr 29
- Report of May 30 based on discussion that was had in the car
- Some of the people who did not get to speak at public hearing accept invitation to send in written submissions
- Written submissions received only by members of the committee – the dairy board however decides the cases
- Committee members hold hearing, but report only summarizes the oral submissions, does not include later
received written subs
30
Admin Law Summary
Because report based on discussion they had before written submission received – decision seemed to be made
in car
- Report received by full board – secretary reads, recommendations accepted by the board
The court is very critical of this – the board is a rubber stamp for the committee
● He/she who decides must hear relevancy- board did not hear evidence, while possible committee could have
hear evidence re: summary, but not possible because report not summarized
● Only material the board had was the report
● In deciding the matter, it was board’s duty to hear interested parties
● Did not see written statements by hearing
● On facts of this case: board has duty to fairly hear matter
Fact finding process corrupted because written submissions didn’t make it into the report
-
IWA v Consolidated Bathurst
- Collective agreement negotiation
- Employer considering plant closure but doesn’t tell union
- Union applies to OLRB – alleges breach of Duty to Bargain in Good Faith
- Westinghouse – employer must reveal plant closing plans which have become de factor decision
- Panel convenes full board without parties
- Policy implications draft discussed
- No evidence, full board imposed on panel
- Decisional responsibility given to panel
- There are Safeguards
- Panel requests no chair
- No attendance recorded, no minutes kept, no discussion of facts, no vote, no consensus procedure
“To deprive a party the right to attach policy in the same fashion as fact is unfair… the possibility that a policy
developed at the full board hearing and not disclosed to the parties was a factor in the decision, is factual to the decision
of the board.
- The full board meeting might have affected the outcome
- Counsel has to have an opportunity to address concerns in front of the full board.
- There is no way to prove what did or did not happen in discussion with the board, new policy or no new policy
- Hard to understand how can achieve uniformity without affecting decisions of individual panels, also there is
still an appearance of injustice, no matter what.
Justice Gonthier (Majority)
- Its more important to note the full board process is there for a reason
- Use institutional resources to get better results is smart
- Concern is that whether or not there is pressure from the full board on panel members, which somehow restricts
their independence, but Chairman Adams rejected suggestion that full board hearings could affect panel
members’ capacity to decide
- Adams was very sensitive to inner-board relations and was taking steps to address it.
- There is a difference between a full board hearing and a full board meeting (bottom of p475)
- Rules of natural justice do not apply to meetings, but do apply to tribunals, board hearings, etc.
- Holding large board hearings is a very impractical way to resolve issues, so union’s suggestion that board
meeting become a hearing is unreasonable.
Deep data implications, full board meeting vs full board hearing, using institutional resources = smart
Institutional Decisions
Tremblay v Quebec
Woman receiving social aid, wants to be reimbursed for costs of bandages and presses
- Refused
- She appeals pursuant to statute to appellant tribunal – set up under social aid in QC
- 2 panel members hear her case
- Both panelists agree that bandages should be compensated
31
Admin Law Summary
- Drafted a yes decision
- The commission for social aid – submitted to legal counsel on vacation
After discussion, one of panelists changes conclusion to no, vote tied, judge who advocated against decision broke tie
and voted no
- Tremblay’s lawyers find out, T finds out
Many sub-currents – judges overbearing…
- Reason why you want strong consensus driver running something like this…
- Because statute gives power to panel – P does not allow judge to take that decisional authority away from the
panel members in a way that this procedure does
- Statute requires decisional interdependence and he’s forcing a consensus and participating by voting
- What the problem is here is that its pressure on the decision-makers who have decisional independence, thus
cannot pass administrative law muster
TvQ
-
Discussions compulsory
President may request consensus table
President argued, then voted
Striving for consensus
Vote (by show of hands), Minutes kept
No breach IWA v CB (no new policy breeding)
Gonthier J “the practice of …holding plenary meetings without members of a quorum having requested them,
as well as the voting procedure and keeping of minutes may exert undue pressure on decision-makers”
Resources for Decision Making
- Discussion tables
- Composition of panels
- Data & precedent banks
- Professional staff review
o Summary of facts & arguments
o Editorial clarity and elegance
o Consistency
- Innovation within the institution to foster clarity, consistency, simplicity, elegance, and quick, rapid, easily
accessible communication is a good thing, but there are some admin law constraints
Admin law considerations
- Nature of proceedings
- Issues raised
- Composition of tribunal enabling legislation
- Resources and support structure
- Workload
- Statutory construction/design is “literally everything”
Khan v College of P & S
- Doctor found guilty of professional misconduct, license revoked
- K appeals on various grounds: committee violated procedural fairness, significant role in making decision
- Process described in pg. 517
Bovbel v Canada (probably should relook at this case)
- Decision of immigration and refugee board – determined that B is not refugee.. judicial review
- All panels expected to submit draft –
- “Existence of that policy is offensive to Tremblay”
32
Admin Law Summary
Bias
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”
Pecuniary interests
- Direct
- Remote/contingent/speculative
Classic bias problems – how it manifests itself
- Antagonism
- Association
- Involvement
- Attitude
Classic tests for Bias
- Energy Probe: ‘Reasonable apprehension of bias’ (by adjudicator or decision maker)
- CP v Matsqui: “What would an informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude?”
- Metropolatin Properties v Lannon: “The court looks at the impression that would be given to other people…even
if he was as impartial as could be, nevertheless if a right minded person would think that there was a real
likelihood of bias, he should not sit.”
Bias: Courts and Tribunals
Courts
Tribunals
Alike
Unalike (so many forms/structures)
Adversarial
Adversarial or inquisitional
Two party contest
1, 2 or multi-party contests
Neutral umpire
Umpire may not be neutral
Rules relatively certain
Rules relatively uncertain
Pecuniary and other material interests
- Common law has always treated a direct pecuniary or other material interest as disqualifying a decision maker
- Dimes is the classic case.
Yusuf pg 544
- Panel of immigration and refugee board
- Woman before it, states that she was assulted in her home country by officials
- One panel member having problems with story, testing her testimony
- Court found language by panel member inappropriate, sexist
- Specifically words “my dear lady”, “tiny little woman” – sexist stereotypes = disqualified
Re Brett pg. 545
- Very hostile conduct by lawyer for professional discipline committee
Re Marques & Dylex pg. 545
- Lawyer for professional discipline panel of the physiotherapy professionals
- Lawyer being told what to do by panel = entering into what kinds of advocacy to ask, when to object etc.
- Panel’s impartiality impugned for that treason
- Acting like a prosecutor – disqualifying bias
Committee for justice & liberty v NEB pg. 546
- A party’s involvement in an earlier part of the decision-making process
- Construction of natural gas pipeline
- Chairman had been president of Canada Development Corp before appointment to National Energy Board
33
Admin Law Summary
-
The applicant, the pipeline company, was formed as group put together of companies interested in constructing
a pipeline
- Some participants to hearing claimed that this apparent commitment to the pipeline created a reasonable
apprehension of bias.
SCC agreed
● Laskin: Issues before the board are not different from what was discussed by the study group (companies
interested in building pipeline)
● Had a hand in developing and approving the very application which was eventually brought to the panel.
Baker v Canada (again)
- immigration officer comments: single mom with four children and psychiatric illness
- “The officer’s notes in the matter that they are written… “
- Expect high degree of decisional impartiality and independence – “reasonable likelihood of bias” type of
standard
Influence of statutory context: Bias
- Indicators modifying classic test
o Agency mandate
o Agency structure and functions
Intention of legislature
- “The courts must be sensitive to the nature of the body created by the legislature” – Brosseau v Alta Securities
Commission
Brosseau v Alberta Securities Commission
- Brosseau – charges against B
- Chair sits on disciplinary panel
“Cannot combine functions of prosecutor and investigator” – B argues chair is biased because of multiple functions
Is institutional bias acceptable if it is authorized by statute?
- L'Heureux-Dubé, writing for the court, held that as a general principle, a person is entitled to an independent,
impartial decision-maker, the nemo judex in causa sua esse principle. In general, it is not permitted for
members of an adjudicatory panel to also be involved in the investigatory stages of a proceeding, as this
would give rise to a reasonable apprehension of bias.
- However, statutory authorization for overlapping functions are an exception to this rule, subject to the statute
being constitutional.
- Administrative bodies are created for a variety of reasons and to respond to a variety of needs. In some cases,
the legislature may decide that in order to achieve the ends of the statute, it is necessary to allow for an overlap
in functions that would, in normal judicial proceedings, have to be kept separate. If a certain degree of
overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be
subject to any reasonable apprehension of bias test.
- Applying this to the case at bar, here the authorization is "implicit
- It is clear from its empowering legislation that, in such circumstances, the Commission is not meant to act like
a court, and that certain activities which might otherwise be considered "biased" form an integral part of its
operations.
Look at
- nature of the body
- Specialization
- Relationship – to affected clientele
- Intention of the legislator
Certain overlapping of functions authorized by statute – to extent it is authorized, will not be found as reasonable
apprehension “per se”
Provided that the particular decision-maker is not acting outside its statutory authority (and the governing statute is
constitutional), an overlap in functions may not give rise to a reasonable apprehension of bias.
- A multi-function admin tribunal which engages with its clientele in both educational, informational, regulatory,
investigatory, and adjudicative manner
34
Admin Law Summary
Where personnel of that agency combined functions… investigation, charging, adjudication… and did so in a
way where no court or quasi-judicial tribunal would be able to do. Except that its statute as interpreted by the
court allowed for it
- The court was looking at not only statutory language, but also whatever implications could be taken out of
architecture – design of structure
Even w/o statutory regulation – can give rise to bias reg
Dependency
- “A direct connection between the prosecutor of the complaint (the Commission) and the decision maker (the
Tribunal)… gives rise to a suspicion of influence or dependency” - McBain
-
Constitutional limit
McBain v Human Rights Commission – pg. 552
- In McCain. Member of parliament had complaint by member of staff
- Complains of discrimination under Canadian human rights act
- Commission can adopt report if it is satisfied the content of report is substantiated
- If report adopted, commission can appoint a tribunal from a list
- Board of inquiry will hold hearing into complaint, “full ventilate” complaint – quasi-judicial type of process
- If board of inquiry finds complaint is substantiated, the can make various remedial orders
McBain complains constitutionally
- Commission finds complaints substantiated, it then appoints a board…
- Board has then make the same determination as the commission, is the claim substantiated? A dependent
relationship is present
The court of appeal finds that it is correct – (pg. 564.10) direct connection between prosecutor of complaint, and
decision maker/tribunal that connects and gives rise a suspicion of influence/dependency, after determining claim is
substantiated, tribunal is picked – reasonable apprehension of bias is said to exist…
- A constitutional limit to Brosseau. – statute outlines the process, but constitutional limit overturns structure
- Human rights commission has to be reconstructed to comply with constitutional norms
Bias – attitudes & predisposition
Strict test indicators
- High baker #3 reading
Relaxation indicators
- Agency mandate
- Agency structure & functions
- Legislative intent
A&P – pg. 572
- Complaint outstanding at the time she was appointed to board of inquiry to deal with systemic sex
discrimination complaint against A&P
- She wrote extensively on the subject as a prof, court found that this isn’t relevant
- At the time, no successful sex discrimination complaint
- Prof went beyond as an advocate, went personally as a party into the very arena in which she was appointed to
preside, in relation to very same issue that she has to decide
Old St. Boniface Résidents Association
- Involved Winnipeg municipal councillor, Mr. Savoie, involved in municipal approval process for his district –
residential development required zoning change
- A member of a community committee of the ward in which the lands are located – which after public
hearings… that the development be approved
- Old St. Boniface assn – wants the councillor removed from hearing the approvals that were requested from the
city for this development to go forward
- He doesn’t, so he was seeking orders from proceeding with by-law
35
Admin Law Summary
-
Councillor can and often does take stand either for or against judgement --> pre-judgement ordinarily disbarred
person --> but can’t be presumed by legislature to enforce this as it would in other tribunals
The nature of the council means the councillor is supposed to have an opinion, court distinguishes from having
an interest (in a political sense, and a pecuniary interest)
Person was elected on the platform that this development move forward – mandate, structure, tolerates that…
Can’t take bribes, be corrupt, but can be a counsellor, work with your people, as long as it’s a clean process
Save Richmond farmland society v Richmond (pg. 579)
- Alderman, campaigns in favour of rezoning lands
- Public hearings, bylaw amendment narrowly passes
- Challenged on basis of reasonably apprehension of bias
La Forest
- Alderman has to be capable of persuasion
- You cannot have a closed mind, but can have a degree of pre-judgement, but your mind has to be honest: no
taint of corruption/association/personal benefit
- Council not a court, supposed to deal with community and deal with community concerns
- Error to apply reasonable apprehension of bias test here – no pecuniary interest here (578-579)
- Extreme of how attitude bias can be brought
Dimes v grand-junction
- Can’t be personally interested in that you’ll be enriched/benefited
- Be clear that, Savoie has pre-judgement, but no one is saying that he is associated with the developer
Newfoundland telephone public utilities commission
- Jurisdiction set and review telephone rates, all the costs that go into providing telephone services: employee
wages, management salaries and pensions, management bonuses etc.  provides rate base
- In complaining about high salaries of the telephone company exec and management
- Before hearing takes place, person expressed his views prior
- During hearing, he also shoots off his mouth
- Utility board makes decision regarding elements in rate base, challenged on judicial review – goes to the SCC
Pg. 589
- The board under statutory mandate has duty to act as investigator with regards to charges
- During investigative stage, wide license given to board members to give public comments,
- “Fat cats” comment, not objectionable according to the court
- Even Well’s statement that compensation not justified does not closes his mind
- This is not a municipal councillor that pre-commit, it is a public commission with a mandate to decide on a
record of evidence and argument what the appropriate elements go into the rate base
- Have to go and investigate, wide latitude to “go off their mouths” --> at the investigative stage
- Once the hearing begins however, act like you’re attentive, inquiring mind, open to being persuaded – be
more “judge like”, even though you’re not a judge
- People at the formal hearing, parties entitled to expect that conduct of commissioners not convey apprehension
of bias
- Evidence for reasonable apprehension of bias
What does statute require? What does agency/statute architecture? In these four cases, wide variety of context, all of this
is working under umbrella of McBain type considerations – even the legislature can’t overdo it --> reasonable disciplinary
type process and put biased people in there
- Consider importance of decision to the applicant
Institutional bias (factors?)
- Legal staff
- Prepare files
- Draft notices
36
Admin Law Summary
-
Prosecute, present argument
Draft opinions
No institutional measures to use different lawyers for different functions
No necessary segregation
Court comments – pg. 560.10
- You can’t show up as prosecutor and express opinion, then participate with judges on decision – quasiconstitutional standard
- Brosseau like, it is being judged as a quasi-constitutional standard
- Function for prosecutor and adjudicator cannot be combined
“Not the fact that it happens, but the fact it could happen, in the architecture of institution that creates institutional bias”
Directors initiate investigation, decide whether or not to hold hearing… constitute the panels that hears the matter, decide
on merits, no institutional measures that separate the different functions
- Decide to investigate – decide what the investigation yields, decide on the merits
- Director after investigation, could decide to hold hearing, could participate in hearing that would cause suspicion
of bias in a number of cases
- Possibly, a particular director could participate in investigation, and decide on its merits
Cannot build institution like this, function has to be separate
- Problem not statutory, just this is the way the director set the thing up (but should not have, because they create
institutional bias) – what would well informed person… thought matter through etc.
Test for institutional impartiality
- Presupposes that well-informed person, viewing the matter realistically and practically, and having thought the
matter through, would have a reasonable apprehension of bias in a substantial number of cases 2747 -3174
Quebec Inc v Regis d’alcool
- Brosseau: institutional impartiality not argued
Institutional Independence
● But independence is a separate value or concept
● Constitutes impartiality
● A state of mind or attitude in the parties in the particular case where an institutional setting
● It’s a status of independence, especially in relation to the executive branch
● And that status rests on objective guarantees or conditions
Ie: Academic freedom for professors – think, don’t conform, create, etc… Cannot be attacked, removed for what you say
and think. The institution will protect you, it has guarantees that protect – security of tenure, financial security, objective
guarantee of independence
Impartiality
● A state of mind
● What would a reasonable person think in a substantial number of cases
Independence
● A status
● You have a position that you have to fill
● Guarantee of job, salary, working conditions and admin control
● Security of tenure, admin control
Institutional Bias (test)
● The test for institutional impartiality presupposes that a well-informed person viewing the matter realistically and
practically and having thought the matter through – would have a reasonable apprehension of bias in a substantial
number of cases. (Regis d’alcool)
Sehi v Canada (Minister of Immigration) – reasons required, higher importance = higher intelligibility/justification
- S claimed to be convention refugee, minister disagreed, S applied to Immigration Appeal Board for redetermination
37
Admin Law Summary
- S claimed apprehension of bias: arguing that apparent effects of proposed legislation about the board, board could not
appear to be indifferent between him and the gov’t, hopes of appointment to the new board by the gov’t created a
reasonable likelihood that members of the board would be sympathetic to the gov’ts arguments against him
- Board appointed for varying terms – gov’t selects from the board members who will be on the new board, thus it is
gov’t who is opposing applicant’s claim – reasonable apprehension of bias existed
But appeal decision allowed gov’t appeal
Would an informed, right minded person conclude the board will tend, consciously or unconsciously, perceive the
gov’ts interest lying in denial to applicants and appellants of rights accorded them by the law?
Court concluded based on above test that: members of the board are collectively well informed on the administration
and policy of act, and are right minded. Such conduct would not they think please gov’t
- Also, mere expression of gov’t intention towards admin tribunal, cannot give rise to probability that tribunal
will react to those intentions in a particular way
Canadian Pacific v Matsqui
- Tribunal members not paid, lack of security of tenure, appointed by band chiefs and councils
- Test for institutional independence must be applied in light of the functions being performed by particular
tribunal at issue
- Sometimes high level of independence is required
- Factor contributing to apprehension of insufficient institutional independence: when chiefs and band councils
select members of tribunals, and controls remuneration and tenure
- Valente principles are flexible in their application to admin tribunals, BUT CANNOT BE IGNORED
- Reasonable apprehension of bias factors for this case and these facts:
- Complete absence of financial security for members of the tribunals
- Security of tenure is either completely absent or ambiguous, and thus inadequate
- Tribunal members, appointed by band chiefs and councils, asked to adjudicate dispute pitting interest of the
bands against outside interests. Members must determine interests of very people, bands whom owe their
appointments
Sopinka argues that institutional independence should be assessed in context of actual tribunal hearing
Lamer disagrees: function of institutional independence is to ensure tribunal is legally structured that members are
reasonably independent of those who appoint them
Standard of Review
Dunsmuir v New Brunsiwck
● Dunsmuir employed as court clerk with NB DOJ
● D held office ‘at pleasure’ under Civil Service Act
● Termination not held disciplinary
● Termination void as no procedural fairness
● Reinstatement ordered
P. 13, by Bastarach - Things had gotten out of hand re identifying SOR
● Patent unreasonableness
● Reasonableness
● Correctness
No longer 3 standards
Why do we have judicial review? (Para 27 p 694)
- Preservation of rule of law
- Reconciles urge to create institutions that exercise public authority
- A check that comes from rule of law
Legislative branch cannot remove judiciary’s power to review actions and decisions from admin bodies (para 31)
Judicial review = constitutionally guaranteed particularly with regard to definition and enforcement of judicial limits
- 2 standards now
Reasonableness: deferential, justification, transparency & intelligibility – whether decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and law
38
Admin Law Summary
Correctness
- Court conducts own analysis
- No deference
- Own analysis, if it disagrees, will substitute its decision to provide own answer (para 50)
Reasonableness
- A range of reasonable outcomes
- Tribunals have a margin of appreciation
- Refers to process of articulating reasons than outcomes
- Justification, transparency, intelligibility
- Range, defensible in respect to facts at law
- Court pays respectful attention to reasons given
Choosing Standard of Review: 2 steps (Dunsmuir):
1. Has jurisprudence already decided a SOR?
Correctness is required for:
- Constitutional questions (p58)
- General questions of law (60)
- Jurisdictional lines between specialized tribunals (61)
- “True questions of jurisdiction (59)
o Court may do away with this**
Reasonableness (deference) required for
- Fact, policy discretion
- Some legal questions
- Tribunal interpreting its own statute (p54)
- Tribunal interpreting statute closely connected to its function (p54)
2. If jurisprudence is not conclusive, then need to do SOR analysis for correctness or reasonableness:
a) Presence/absence of a privative clause
b) Purpose of statute (look at enabling legislation)
c) Nature of question at issue
d) Expertise of tribunal
For Dunsmuir: Court finds ad-hock appointment (at pleasure) – outside day to day work at the tribunal, but still assumes
institutional expertise
- Relative expertise of labour arbitrators compared to courts in interpreting Collective agreements
- Adjudicator interprets home statute
- Expertise = institutional expertise
- Statute establishes a timely and cost effective method of resolving employment disputes.
Was the decision reasonable?
- Transparent, intelligible, provides justification,
- And fall within a range of reasonable outcomes that are defensible
- No complaint about procedure, but there is one about the statute
- You can’t ask reasons because not in statute, therefore the result cannot be defended in terms of something that
was justifiable in terms of fact and law
- Para 75: Decision of adjudicator treated Dunsmuir, a non-unionized employee, as a unionized employee, which is
an unreasonable decision.
- Thus, unreasonable and set aside on those grounds.
Two takeaways:
- Must master the process
- 1st application of this roadmap. Need to work with it to provide advice/guidance.
Examples of Privative Clauses
Stringent privative clause
- Legislature chooses decision maker and protects decision
39
Admin Law Summary
Weak:
- “Board has discretion to determine and decision is final and conclusive”
Strong:
- “No decision, order, direction, declaration or ruling of this board shall be reviewed in any court”.
- “No order shall be made or process taken by court by way of injunction, declaration, probation, or otherwise to
question, review, prohibit and restrain in any proceedings”.
Khosa
-
K immigrated to Canada at 14yrs old
At 18yrs old, raced in Vancouver, killed a pedestrian
Convicted of crim negligence causing death
Ordered deported to India
The consequences are severe (although the victims family bears the loss of the family member)
Applies to immigration appeal board to remain in Canada (Humanitarian and compassionate grounds)
S67 provides that to allow for an appeal, the immigration division must be satisfied that sufficient humanitarian
….
- Statutory tribunal makes decision regarding his case
Appeal denied
- 1st question about judicial review: Is there existing jurisprudence?
- Nothing here suggesting correctness (not constitutional, not jurisdictional lines, not a general question of law of
central importance), but just to be sure, uses Dunsmuir's roadmap.
Weak privative clause (statute says can be reviewed with leave from court)
- Purpose is to hear wide range of appeals
- Nature of the question is fact dependant
- Board has considerable expertise
- Nothing that shows the took balanced approach to the facts
Was the decision reasonable?
- Reasonableness is a single standard that takes its colour from the context
- IAD reasons are transparent and intelligible
- Result not outside the range of possible acceptable outcomes in terms of fact and law.
Binnie says: And Privative clause says ‘stay out’ so stay out
- Outside range? Nope, fits within band of options
Is there existing jurisprudence? If no, roadmap, privitive clause, purpose, nature etc. = reasonable decision within range
Regional Health Authority v Manitoba Association of Medical Hospitals
Employer excludes casual service in calculating vacation benefits
- Although this violates CA, arbitrator holds employer is estoped from asserting its strict legal rights under the
CA until the expiry of the CA
- Estoppel = general question of law
- Meaning applies to contracts, not labour, so it is central importance
Outside area of expertise
- Arbitrator says ‘I’m being creative and applying my expertise to the issue at hand’, and the court agrees.
- Arbitral awards usually get reasonableness
Step 2: Analysis
- Broad grant of authority to arbitrator
Privative clause
- Expertise and institutional expertise
- Unique role of labour arbitrators
- Suggests standard of reasonableness
It was reasonable within the range allowed by facts and law
- Estoppel, general question of law – reasonable within the range
Meaning of Reasonableness
40
Admin Law Summary
General questions of law – platform, for a standard of review of correctness, provokes standard level of controversy
- “saying what the law is, is a primary function of the court”
- Legal answer, interpretation of law, rest primarily with statutory official and not with court, is a big concession to
unraveling central drive of hierarchy legal system
True questions of jurisdiction – point of controversy
- “anything can be transformed into jurisdictional question”
Court could therefore go in and review anything it wanted to --> criticism
- Legal questions that were not of central importance to the legal system
Dickson said in 80s, courts may not brand as jurisdictional that is not… really… jurisdictional
- Arbitral awards usually get reasonableness review
Nor-Man RH Auth v Man Assn HCP
Arbitrator applies estoppel to Union Claim
- In para 53, even if arbitrator lacks personal expertise, at institutional level, person presumed to have
institutional expertise for legislation, gives them mandate for closely aligned statutes
McLean v BC (securities commission)
Meaning of “general question of law of central importance to legal system and outside adjudicator’s specialized
expertise”
- M enters into settlement agreement with the OSC (ontario)
BC securities commission looks at what happened, beyond the 6 year limitation period that would apply, if the
settlement agreement with the OSC is the triggering start of the limitations period
- A question arises under s. 159 & s. 161 of the BC act (pg. 106 of supplement)
- 6 year limitation period, what is the date that gave rise to the proceedings?
Interpretation of the limitation sections
- Limitations as a general concept: is a matter of central importance to the legal system
- Securities commission is expert tribunal, s. 159, 161 is in its home statute
- Statutory tribunal is evolving the law
- How much of evolving is occurring here?
Courts using reasonableness as primary tool for other than really central questions
On this appeal, counsel says reasons through argument (BC securities commission did not give reasons before)
Not a general question of law, more of a narrow interpretation of law within tribunal’s expertise, standard is
reasonableness
- But court says the question is really who should decide this question, and Dunsmuir makes it clear this should
be left to the administrator
Language is unclear, commission can make it clear, its its home statute
- Reasonableness standard
- Didn’t fall outside band of reasonable outcomes
1. Reasonable standard because not a general question of law outside decision-maker’s area of expertise
2. Within band of authority left to the BC Commission
Movement Laïque québécois v Saguenay – supp pg. 149
- Municipal council meetings begin with religious invocations
- Existing religious symbols: appellants allege discrimination on this basis
- States duty of religious neutrality that flows from freedom of conscience and religion
How far does this go?
- Standard of review is correctness
Subsequent cases uphold this
- On complaint human rights tribunal must determine scope of states duty to religious neutrality
Court says just because correctness applies to one thing, but should apply different standard to each issue, if allows.
Each question has to have its own standard of review analysis!
- The fact that the first question gets correctness does not mean that correctness is standard of review for the other
questions
41
Admin Law Summary
Reasonableness
Deferential standard, certain questions that come to admin tribunals do not lend themselves to one specific result
There is a number of possible, reasonable, conclusions
Tribunals have margin of appreciation within reasonable range
- Prohibitive clause
- Home statute
You need to know why/how they got to their decision
Does it fall within range of possible outcomes that is within the defence of the law?
Jurisdictional issues
- Look at the statute, exercise “Extreme” caution to ask if this is jurisdictional issue
Dunsmuir innovation
- Tribunal is master of interpretation – is it reasonable?
If you do your own analysis – indicates correctness standard
Court conducting review looks at
- Process
- Outcome
Dunsmuir para 47: There is a risk if you don’t follow closely what the tribunal did
Remedy for correctness – court creates its own remedy
Remedy for reasonableness – invalidate the decision
Relationship between courts and tribunals
- Courts conducting reasonableness analysis inquires what is reasonable
- In judicial review, reasonableness is concerned with mostly existence of justification, transparency and
intelligibility within the decision making process
- Also concerned with whether decision falls within range of possible acceptable outcomes which are defensible
with respect of the facts and the law
Process and outcome, transparency, intelligible, justifiable
Is what’s done fall within reasonable and acceptable range of outcomes?
Canada v Khosa – para 59 (pg. 721)
•
Teenager of Indian descent, street racing, applying for humanitarian consideration
•
Judicial review on grounds its unreasonable
•
Majority cite Dunsmuir, adjudicative tribunals and the importance of reasons for an administrative decision
Decision is not ours to make at SCC, we are to give deference
•
Decision is in acceptable range
•
Transparent, intelligible reasons were applied
•
Both sending him and keeping him were defensible
•
Deference means the decision is not for us
•
If it was not transparent, intelligible, and justified, then its for us, or procedurally unfair, then we’d address it
Where reasonable standard applies, requires deference, reviewing courts cannot substitute their own appreciation of
appropriate solution, but rather must determine if outcome falls within range of acceptable outcomes
- There might be more than one reasonable outcome, as long as the process and outcome fit comfortably within
reasonable range – not open to reviewing court to revise!
- “courts can’t do it all”, Courts should not substitute their opinion with the tribunals
CHRC v Canada (Mowat)
- Mowat awarded statutory limit of $5000 for sex harassment in Cdn armed forces
- Also awarded $47k for legal costs
- Cdn human rights act compensates victims for lost wages, additional costs of obtaining alternative goods,
services, facilities or accommodation…for any expenses incurred by victim…
42
Admin Law Summary
-
Standard of review
Costs is a question of law, within core function and expertise of tribunal related to interpretation of its enabling
statute
- Whether tribunal grants costs is not question of central importance for legal system
- Not outside tribunal’s expertise
Conclusion: SR = reasonableness
Is it reasonable? No says the court (SCC)
- Reasonableness is deferential standard that shows respect for administrator’s experience and expertise
- Tribunal’s interpretation was unreasonable, considering text, context and purpose
- If the tribunal is to have jurisdiction for costs, the legislature would have said so…
- Tribunal is consistently understood that it does not have jurisdiction to award costs
- Bothering parliament to amend statute for many years
- Tribunal interpretation unreasonable, considering the context, text, and purpose
Touchy area: tribunal awarding costs when parliament did not amend statute to allow them to do so
- Tribunal can amend the law a little, but parliament said no and now tribunal said yes… that’s what makes this
unreasonable
- “This case COULD be decided differently”, “parliament didn’t say no, they just didn’t get around to it…” -->
some examples of arguments
Catalyst Paper v N. Cowichan
JR of municipal tax assessment, reasonable?
- “Reasonableness is deferential standard that depends on context, nature of admin act and legislative scheme”
Here broad legislative discretion
- Paper company paying substantial portion of tax collected by N. Cowichan, municipality wants to hold tax
rates down for rest of the residents
- Catalyst losing $ in recent years, pressuring N. Cowichan to lower taxes
- N. Cowichan – set tax rate, took into account broad array of social/economic/demographic factors related to cmty as a
whole
- it is harsh on Catalyst, city acknolwedges, but standard of review is reasonableness, we could take objective factors
into account, but we could take broader array of other factors
- is this unreasonable?
Community Charter – sets unfettered jurisdiction to set property tax rates – it has wide discretion, entitled to do it
- It may be harsh, may drive them out…
- Reasonableness is deferential standard
Council entitled to consider impact of tax hike on fixed income residents
Complies with community charter which permits different tax rates for different classes of property
Kanthasamy v Canada
- Tamil teenager detained and questioned by Sri Lankan army and police applies for permanent residence from
within Canada on H&C grounds
- Rejected, IO not satisfied return to Sri Lanka would result in hardship
- K gets into Canada when he is 16, application was when he is 17
- IO draws on language from within guidelines – factors in the guidelines, she looks at each one individually,
does not see hardship – on balance, she is not satisfied that hardship is unusual, undeserved, or disproportionate
Abella J is critical of IO
- “no hardship on children”
- “Unusual, undeserved, disproportionate” – descriptive
- As said in Baker: attentiveness and sensitivity of importance of children to their best interest and possible
negative consequence of decision is essential --> IO here did not look at the fact that he was a child
- Failed to give serious consideration to his youth, mental health, evidence that he would suffer discrimination if
he would to return, officer’s analysis cannot be categorized as anything other than perfunctory – unreasonable
decision
- A good example of this doctrine – review of substantive outcomes as unreasonable is still alive and has teeth.
43
Admin Law Summary
Jurisdictional Questions – theory of jurisdiction
Does an agency have power to determine the extent of its own jurisdiction?
“Theoretical basis of idea [of jurisdictional questions] is unimpeachable… its application is another matter” –
local 298 v Bibeault – Jean Beetz J
- Dickson warned should be difficult
Courts tightening standard
Dunsmuir refers to debate, agrees to this, not to brand as jurisdictional that which may be doubtfully so
Alberta info privacy commissioner v Alberta teachers (pg. 71)
Rothstein doubts that there is a true question of jurisdiction (US decision)
- Cromwell J – they exist, are fundamental, but unhelpful in SR analysis
- Binnie – prefers middle ground
Prohibitive clause – standard of review is reasonableness
- “Follow their reasoning process” – you’ll need the tribunals’ thought process: intelligible, trans apparent,
reasonable, and justified
- Look at the outcome,
Reasonableness is a deferential standard to tribunal – you need to know what the tribunal did! How did they justify it?
You need to see what they did
- “We have big warning to not deal with jurisdictional issues”
- “We think we can resolve this under reasonableness question, to see if it is reasonable or unreasonable” – that’s
what the court is saying
Common Law Remedies
- Prerogative Writ
- Certiorari: Formal request to a court challenging legal decisions of an administrative tribunal, judicial office
organization (e.g. gov’t) alleging that decision has been irregular or incomplete or if there has been error of law
- Prohibition: a legal restriction against the use of something or against certain conduct
- mandamus,
- habeas corpus,
- Quo warranto: a prerogative writ, now abolished in some provinces and fallen into disuse in others. It called
upon potential usurpers of statutory powers to indicate “by what warrant” or authority they were exercising a
particular statutory or prerogative power
Also: public law declaration, injunction
These apply against decision makers empowered by statute – public law remedy (not private law in any sense)
May also have prerogative public power
- Dividing line between private/public not always clear
Many non-statutory bodies like clubs/unions/religious institutions where people get expelled, property type disputes etc.
- Difficulty arises here: public or private here?
Volker Steven v NWT (NWT decision not to procure because not northern business)
- Civil service group designated “northern business” for purpose of preferential contracting with NWT gov’t
- V had unsuccessful application to be a northern business, designation revoked, V applies for certiorari
- Court discusses whether this is simply procurement – just purchasing power…
- Judicial review available for
- Statutory & prerogative decisions
- Entities required to give procedural fairness
- Entities with public law functions having public law consequences
Court says here, this is not simply procurement decision
44
Admin Law Summary
-
Affects the status of the business
Affects ability to carry on business in NWT
Procurement decision by gov’t are exercises of contractual power – certiorari and other powers should not be
available generally
But here, gov’t decision by prerogative (not by statute – by civil service), affects status of business, affects
ability to carry on business in the province, goes to core of ability to exist as business
Procurement may be pursuant to statute
Air Canada v Toronto Port Authority (supp pg. 128) – factors for weighing public-private distinction
- TPA allocating slots at Billy Bishop Airport
- Porter have existing slots, TPA decides to grandfather those – porter gets 157 of 202
- AC seeks JR of TPA decision
- Issue: is TPA engaged in a reviewable public function? Or is this simply private body making private decision
exercising private power?
JA
- Every public authority also has alongside public decision making powers, it has private decision making powers (i.e
UOttawa buying stationary at specific vendor)
- Relationships that are in essence private: engage only private redress
- Cites Dunsmuir: hybrid relationships in public employment sector, where both statutory office and a K, are to be look
in the lens of private law only, not public law – Dunsmuir cannot engage public law remedy
- This public-private divide, even within single institution – how to find?
- No single test, blend of factors: character of manner in which review is sought, the nature of the decision maker and
its responsibilities (public in nature like crown agent?), extent in which decision is founded in and shaped by law as
supposed to just private discretion, body’s relationship with other statutory schemes and other bodies of gov’t, extent
to which decision maker is agent of gov’t – directly controlled by gov’t (Masters v ON), suitability of public law
remedies – more useful remedies more likely public, prerogative power?, exceptional situations where there is
exceptional public dimension (“this is a first stab at it”)
Application to the TPA
- TPA not acting as crown agent
- Granting of take-off and landing slot is essential to operating airport
- Take off and land slots granted under commercial operating agreement
- TPA itself is private, not acting as tribunal, commissioner etc. – it has letters patent, a condition to receiving this was
that TPA was and remain financially self-sufficient
- No statute or regulation that constrains TPA discretion, no statute or reg concerning allocating slots
- No evidence that gov’t directs, instructs, or controls the port authority – how to make decisions of this kind (private
discretion)
- No evidence – matters described in bulletin fall in exceptional category
- Prof likes some of the criteria developed, but feels uneasy about the decision
- Concerned that applying this criteria, some matters (discipline matters i.e) become private
That would not be right, too much jurisprudence from high courts that says students open to public remedies
Voluntary Associations – R v Halifax Dartmouth Real Estate Board
- Real estate company (seaside) expelled for breaching rules of HDREB
- Seaside brings certiorari application, is HDREB sufficient in public law system?
- Court
- To bring certiorari in public law system, there has to be duty to act in best interest of community
- This board is incorporated by special act (standardized real estate business – to enjoy confidence of public, to
raise ethical standards in real estate trade, adopts ethics code of cdn real estate boards, by-laws provide for
suspension/expulsion of bad conduct)
- Ripley v Investment Dealers Association
- R is member of IDA, fined and suspended from membership for professional misconduct following hearing by
IDA committee
- R seeks various relief against IDA (including quashing through certiorari)
45
Admin Law Summary
Court says
- Securities act provides delegating powers, no regulations to protect those delegated powers
- Thus no delegation flowing from securities act
- Private association incorporated under laws of Canada
- No duties cast on it by law, private association, not amendable to certiorari
Ethics of real estate board filling public function, thus can do JR
Distinguishing entities that makes them essentially public functions
What to look at? Stratus says:
1. Character of the matter for which judicial review is sought
2. Nature of the decision-maker and its responsibilities
3. The body’s relationship to other statutory schemes or other parts of government or directly controlled by
government
4. Suitability of public law remedies
5. Existence of coercive or compulsory power
6. Catch all category: Where the conduct has attained a serious public dimension
7. Character of the matter for which review is sought
8. Degree to which the decision-maker is directed/controlled by public entity (funding is important).
Prerogative remedies codified by statute
- Federal sector: application to Federal court under Federal Court Act
o Fed Court has exclusive original jurisdiction to issue injunction, writ of certiorari etc, or declare relief
against fed boards, commissions, or other tribunals
o “S. 18.1 application”
o Federal statutory decision maker, federal prerogative decision maker
o An arbitrator under collective agreement is not federal (arbitrator does not draw authority from statute,
from private agreement itself)
o A corporation incorporated under CBCA – incorporation gives it life, but authority comes from corporate
by-laws --> not federal commission/tribunal
o If FN chief allocating stuff by authority of Indian Act – decision would be challengeable by public law
o If FN chief negotiating treaty – not challengeable through public law
Federal court act s. 18.1 app
- Originating proceeding
- Application for judicial review
- Parties = “anyone directly affected” by decision
- Court has discretion to recognize public interest applicants
- Limitations period – 30 days (court has discretion to extent time, but strict)
- Certain name tribunals, judicial review of them is listed in s. 28 of FCA – those applications must go to the
federal court of appeal
Grounds of Review s. 18.1(4)
- Jurisdictional error, procedural error, error of law, factual issues, fraud or perjured evidence, contrary to law
- Jurisdictional error is now recognized in Dunsmuir, questioned in AB teachers
- S. 18.4 recognizes grounds for jurisdictional error, but common law restricts it massively (“nothing is
jurisdiction”
- All categories have their own SOR
- Procedural error: standard of review for procedural fairness is correctness! – not a reasonableness ambit
o If procedure is defective it is defective
- Openness, transparency, accountability are conditions for reasonableness
-
Legal errors have to be read against general jurisprudence
General law that gets legal jurisdiction as whole that gets correctness review
Errors of law arising from its own statutes, tribunal has expertise, that gets reasonableness review
46
Admin Law Summary
Factual Issues
- Cannot just transform anything in question of jurisdiction
- Interpreted and applied against existing jurisprudence
Court’s remedial powers
- Court may order federal board to do what it lawfully failed to do in an application for judicial review in nature of
mandamus or do what it delayed doing
- Do what unlawfully failed to do
- Do what delayed doing
- Prohibit – from doing something it clearly should not be doing
- Quash – that is what certiorari is (may quash a decision)
- Refer back with directions s. 18.1(3) – to the tribunal to act lawfully as the court has specified what the legal
requirements RE
In ON: prerogative remedies codified under the Judicial Review Procedures Act (JRPA)
- S. 2 – application for judicial review (“notice of application for judicial review)
- One application: seeking (and if not necessary to say) JR in nature of certiorari to quash decision etc.
- Combines prerogative writs, declarations, injunctions
- Courts have developed public law reach under s. 2
- S. 2 applies to proceedings in nature of certiorari
- Using “in nature of” some courts expanded public law reach to:
- Consensual arbitrators, unions, churches
Court in Davenport
If you’re amenable to procedural fairness then you’re public
- A bit circular though…
- The factors apply… when you’re really in doubt
Discretion & its limits
- Legislators create broad stat frameworks for reg regimes
- Administrators, using discretion, filling the details
Roncarelli v Duplessis
- Admin discretion of the premier, and the chair of the QLC on behalf of the premier to deny liquor license
against Roncarelli
- Admin discretion is not unlimited
- Discretion is limited to statutory purposes
- Implication: some discretionary decisions are beyond stat limits and are illegal
Discretionary powers
- Amount of choice left by parliament to admin decision maker is important
- “A court must intervene where decision is outside scope of power accorded by parliament” – baker v Canada
- Reasonableness
Dunsmuir v NB
- Hybrid employment, holder of stat office and employment K
- Employer dismisses with pay in lieu of notice
- Arbitrator exercises discretion to order reinstatement
- Where the question is one of discretion, deference is automatic applied
Canada.v Khalsa - Reasonableness is appropriate standard of review for exercises of discretion
To remove arbitrariness
- you structure discretion
- list of factors/roadmap
47
Admin Law Summary
2 ways of structuring it: by rolls saying you must or by decision maker itself, by policy
What motivates a court to grant/withhold its discretion to withhold admin law remedy?
- Court does not have to issue writ of certiorari, court has discretion to do that
- “Typical failure in our system, is administrator’s failure to make rules to replace vagueness with clarity
Discretion cannot be applied inflexibly
Admin with discretion should structure it with rules…”these are the factors that count…”
- “Replace vagueness with clarity through rules/bylaws”
- You can also make it clearer through making policies
Structuring discretion by rules
- Rules state how agency will exercise discretion
- Statutory authority required
Structuring discretion by policies
- Statutory authority unnecessary if policies are not rigidly applied, and
- Do not exclude administrator’s ability to deal with each case on its merits
- If you apply policies rigidly though, you need statutory authority…
- “Accountability to the statute”
Ainsley Financial v OSC (pg. 760)
- OSC issued policy statement (no. 110): guide to business practices for sale of penny stocks
- Minutely detailed regime
- Reads like statutory code, prescribed forms and exemptions
- Policy stated to be in “public interest” (OSC has power to sanction in public interest)
- “Sounds coercive”
- A argues no statutory authority to back policy – applying policy like a statute
- You’re okay to have general policy that outlines how to operate things based on the discretion given to you
from statute – AS LONG AS YOU’RE OPEN TO PERSUASION
- The guideline is a general statement of principles
- Threat of sanction for non-compliance – IS THE ESSENCE OF MANDATORY REQUIREMENT
- Policy is mandatory in effect
- Policy lacks statutory authority – IS ULTRA VIRES
Canada v Mavi
- ON has policy to allow policy sponsors to rearrange debt payments but will not forgive debt
- No statutory authority to forgive debt, has statutory authority to extend terms
- “No feathering that exists here”
- “If you don’t have stat authority, then feathering discretion”
- Policy is flexible with legislative mandate
Discretionary Powers and the Charter
Dore v Barreau du Quebec
- D wrote to judge an angry letter to judge
- Disciplined by the barreau – also got reprimand
- Reprimand is the issue on appeal
- Freedom of expression, but also statutory objectives here requiring lawyers to conduct themselves with dignity
and restraint – is there a full s. 1 limit?
Abella J – no
- Consider charter values within a reasonableness inquiry, balance statutory objectives against established values
48
Admin Law Summary
-
Admin decision maker here is the bar
Balancing the two elements is under reasonable inquiry
Decision maker should consider the statutory objectives
How the charter value will be best protected in view of statutory objectives (decision maker should determine
this)
- Requires decision maker to balance severity of charter value with statutory objectives
- “Reasonable alternatives”
On JR – does the decision reflect proportional balance of charter and elements at play?
- Here, the barreau considered the statutory objectives: full liberty to defend client, do so with dignity, restraint,
protect administration of justice
- this is outside of range of reasonable alternatives
Loyola high school v Quebec
- Program that QC created – teaches about beliefs and ethics of religions around the world from a neutral view
- Imposed on all QC schools including catholic schools
- Loyola is catholic, gov’t telling catholic schools how to teach their faith… no/insufficient benefit for the state’s
objectives for teaching Catholicism in a neutral perspective for Loyola
- Preventing Loyola from teaching Catholicism in their own perspectives undermines objectives
- Minister’s decision gives no weight to Loyola’s religious freedom
o Balance strck deemed by court to be unreasonable
Balance statute objectives with asserted charter right
Reasonableness inquiry – see if charter values come into consideration
- Charter considerations falls into standard of review
- But charter can be a standalone issue – (for exam purposes)
Illegal feathering of discretion
Judicial review of discretion
- Paradigms
- Internal administrative appeals MUST BE EXHAUSTED before going to court
- Delay (takes too long) – if you just sleep on your rights (remember i.e. 30 day limitation period)
o Court will require explanation: length, nature of explanation, whether or not 3rd party rights intervened
- Waiver: if you waive your rights court is not going to enforce them after
- Misconduct (Homex realty) – “clean hands”
Harelkin v Univ Regina (leading case) – if there is better alternative, take that first
- Social work student required to withdraw
- Appeals to University Council committee
- Unfair procedure: appeal denied
- Request for re-hearing denied
- Appeal (de novo) open to the senate committee (like in Khan)
- H applies for certiorari against council decision denying appeal – does not go to senate --> did not exhaust
internal remedies
Beetz J
- Certiorari refused if unreasonably delay, misconduct or adequate alternative remedy
- Senate committee better considering procedure, powers, previous finding, expeditiousness, costs
- Presumed senate committee would have set aside the previous council committee finding since required to do
so in law & presumed to act legally
- Presumed that they will do the right thing
- Prefer internal domestic disputes be resolved internally…
- Legislature intended to promote university autonomy, low cost for university & public, & speed
- “Even if you have good point, will rule against you”
49
Admin Law Summary
Strong dissent by Dickson j
- jurisdictional error, including natural justice: certiorari issues ex debits justifiable (discretion must be exercised
in a particular way)
- Delay or alternate remedy may deny relief
- Consider nature of error, nature of appellate body convenience
- Here appeal insufficient: faced with adverse finding, dynamic of ascending rigidity
DISSENT IS NOT LAW
Canada v Khalsa
- Whether or not the court should exercise its discretion in favour of the application will depend on the court’s
appreciation of the respective roles of the courts and administration as well as the circumstances of each case
Interpret s. 18.14 to preserve federal court’s discretion for relief
CP v Matsqui indian band
- Land taxed by FN
- CP brings application for JR for federal court
- Application refused, must bring challenge to FN appeal tribunal
- Internal appeal required, JR refused
Prematurity
- Prohibition available for jurisdictional error
- Courts defer until admin process complete
- Avoid fragmenting admin process
- Need complete record
- Admin process may finally dispose of matter
Howe v accountant’s institute (pg. 813)
- Investigating committee refused to disclose investigator’s report
- H want’s investigator’s report, doesn’t get it
- Goes to court, application for JR
- Discipline panel not yet struck
Analysis
- Don’t know how important the report is
- Don’t have will say statements, final disposition of the proceeding (the whole thing might work out)
- Application is premature – court refused to give remedy before conclusion of proceeding
Laskin dissent
- Breach of natural justice is like jurisdictional error
- If tribunal breaches natural justice, like breaching jurisdiction (like what happened in Harelkin)
- “No one has yet to win with this argument in court though.”
50