Class #1 Sept 6th: Introduction and Context
Legislatures are the members of parliament that go to Ottawa to represent us
Administrative tribunals are not constitutionally created the only way they can be created is through statue
which enables the tribunal to exist
 Everything about a tribunal must be contained in its statue
 They can only do what the statue says they can do
 The legislature can build that enabling statue however they want
o Ex, the competition tribunal is half economists and half retired federal judges
 Don’t need a lawyer to go tribunals because that doesn’t make it that excessive and they could also
make it way more procedural than tribunals are supposed to be and defeat the purpose
 Executive makes tribunals.
 Admin tribunals created for the purpose of moving things out the courts so can a court go in and say
we don’t like what you’ve decided?
Baker case activity:
 Question 1:
o Bakers conduct while she’s been in Canada – law abiding citizen vs someone that’s been
exploiting resources should be awarded more fairness
o Magnitude of consequences for the person
o Practical considerations like the size of body, timelines, and deadlines
o Affected parties
o Opportunity to participate
o Vested interests
o Legit evidence
 Question 2:
o Bias: all caps, making comments about whether Canada can afford this type of generosity,
commenting on the number of children she has, seems like there’s opinion here and it should
be based on fact and evidence
 No evidence on about what Baker is going to do with the rest of her life then how can he
make these comments that she will be a leech on the welfare system forever
o Speediness
o Logical reasons
 Question 4: substantive review
o How incorrect can the decision be based on -reasonableness, rationality and logic, inconclusive
evidence, chain of logic, subjectivity
o Could you look at other decisions from how similar issues were dealt with in the past even
though tribunals don’t have to go by precedent because it’s not really a thing here
o Not following own policy – says in the letter no H&C considerations other than her 4 children
Class #2 Readings
Constitution Act 1867 s. 96-101
JUDICATURE
s.96 Appointment of Judges
The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province,
except those of the Courts of Probate in Nova Scotia and New Brunswick.
s.97 Selection of Judges in Ontario, etc.
Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the
Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces
appointed by the Governor General shall be selected from the respective Bars of those Provinces.
s.98 Selection of Judges in Quebec
The Judges of the Courts of Quebec shall be selected from the Bar of that Province
s.99 (1) Tenure of Office of Judges
Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good
behaviour but shall be removable by the Governor General on address of the Senate and House of Commons.
s.99(2) Termination at Age 75
A judge of a superior, whether appointed before and after the coming into force of this section, shall cease to
hold office upon attaining the age of 75 years, or upon the coming into force this section if at the time he has
already attained that age
s.100 Salaries, etc., of Judges
The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the
Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges
thereof are for the Time being paid by Salary, shall be fixed, and provided by the Parliament of Canada
s.101 General Court of Appeal, etc.
The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the
Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the
Establishment of any additional Courts for the better Administration of the Laws of Canada
Class 2 Sept 11th Intro to the Administrative State
What is Administrative Law?
 Concerns judicial development and application of legal principles that govern conduct of government
bodies, through review of government’s decisions and procedures
o About overseeing delegated state power – not courts not legislatures
o Also reviews Executive discretions (Ministers and their delegates)
o Common law Admin law does not overturn or invalidate legislation (unlike con law)
 General principles, not specific regimes
 Did this body make a good decision in this particular case? And what is a “good” decision?
What/Who is the Administration?
 Crown/Privy Council/Cabinet and “government”
o Executive not legislature (2 hats for MPs)
o Ministers, their departments, delegates (bureaucrats, front line workers, etc.)
 Agencies/Tribunals/Commissions/Boards
o Also, Royal Commissions, Public Inquiries
o So, you can do specialized more expertise boards
o Have some impartiality like the human rights tribunal that could deal with actions done by the
state itself
o Has the benefit of insulating the decision maker form government and the ability of insulating
government from controversial stuff
 Can do some harder work without the political consequences that a member of
government would be worried about incurring
o Often tasked with solving a particular problem with a sense of impartiality and can say things
that the government can’t particularly say
 Other possessing public/regulatory power
o Universities, school boards
o Municipalities
 Constitutional stance of municipalities in Canada are preachers of the province
 A city if kind of a regulatory body that isn’t officially one of the levels of government
o Professional Regulatory Bodies… etc.
Typical Administrative Actions:
 Decisions (adjudicative and otherwise)
o Licensing trades, professions
o Regulate and restrict activities – e.g., securities regulation
o Discipline – e.g., parole boards
o Conferring benefits – e.g., social assistance
o Adjudicating disputes – e.g., landlord/tenant
o Conferring status – e.g., refugee statues
o Adjudicative decisions is you vs the agency
 Policy development
 Investigations
 Prosecutions
 Advice
 Education
 Research
Why an Agency?
 Why choose independent agencies over government departments?
 Why choose independent agencies over courts? May want people with specific expertise, or people
don’t trust the courts
o Courts are expensive and you need lawyers and whole big productions and maybe your dispute
is only for 100 – finding ways to deal with smaller disputes that is quicker and cheaper that is
still fair but not overly complicated
 Why these architectural choices? E.g., how much delegation? Independence? Expertise? Etc.,
Evaluating the Administrative State:
 5 bureaucratic criteria:
o 1. Effectiveness at meeting objectives
o 2. Efficiency = cost/benefit analysis
o 3. Equity
 Who is on the board is it fair? Have they given thought to equitable considerations?
o 4. Manageability
 Are the wheels staying on the bus or not?
o 5. Legitimacy/political feasibility
 Three legal or judicial criteria:
o 1. Rule of law
 If not guided by the rule of law, then not a thing you want to build
 Rule of law means you have to worry about procedure which could get in the way of the
bureaucratic stuff
o 2. Procedure
o 3. Precedent
 Following it
 Creating it
The Canadian State and the Separation of Powers:
 The legislature makes law via statue
o Parliamentary supremacy (still)
o Often delegates to executive
 The executive aka “the government” implements law
 The judiciary oversees statutory law
o Constitutional jurisdiction and
o Admin law jurisdiction
Pyramid of Power
 Bottom level: common law which can make Admin law rulings about fairness, reasonableness of
executive action, supply omission of the legislature through statutory interpretation
 Middle level: legislation/statutory instruments (statues, regulations, guidelines) passed by legislature,
implemented by executive
o Legislation can explicitly override common law protection through clear statutory language
 Top level: constitution (written and unwritten) – constitution is safeguarded by courts and supersedes
even explicit legislation (Charter too but for notwithstanding clause)
Remedies & Legitimacy of Judicial Review: How court get Involved
 Pages 16-17 textbook
 Original jurisdiction: sue government through ordinary civil law, References Re constitutional questions
 Appellate jurisdiction: enabling statue creates right of appeal to courts
o If there is no statutory right of appeal in the statue, then there is no right of appeal
o If there is a right of appeal, it will be in the enabling statue of the body
 Inherent (supervisory) jurisdiction: judicial review invoking rule of law concerns (most often regarding
individual adjudications)
Boundaries: the courts vs Parliamentary Sovereignty
 1. Can provincial legislatures create courts masquerading as admin agencies?
o No, Re Residential Tenancies Act SCC 1981
 2. Can provincial legislature completely preclude judicial review via a strong privative clause?
o No, Crevier SCC 1981
Main Concerns of JR:
 Procedural fairness
o Threshold Q and level-setting (Baker test)
 Threshold: Was this person entitled to any procedural fairness at all?
 Ex, policy decisions don’t give you a right to procedural fairness
 Also, even if you do get procedural fairness that doesn’t mean you are entitled to it at
every step of the way you might just be entitled to it at the end
 Are this persons rights or interests being affected in a person way?
 Level-setting is the Baker test
 Gives you 5 questions to look at
o The nature of the decisions (policy vs court decision) more it looks like a
thing a court could possibly do the more procedural fairness you are
entitled to
 More legislative in nature vs court like in nature
o The nature of the statutory scheme – how final is this decisions
 Is there a statutory right of appeal – then less fairness
 The more final the decision is the more fairness you are entitled to
because you don’t have another chance
o Importance of the right affected or the importance of the decision to the
individual affected
 Ex, deportation – very important to the individual so more fairness
you are entitled to
 Could be an interest could be a privilege or right
o Legitimate expectations – expectations in a particular process

Entitled to think you were going to get a public hearing because
that had been the practice for everyone else in the boat for
example
 Expectations of procedure or process not expectations of outcome
o Choice of procedures – enabling statue says about how much power this
body has to make its own process
 Evidence to think they have expertise in procedures may mean
you have fairness
o Content: what actual procedures required?
o Bias and independence
 Can have structural bias or other kind of bias
 Reasonable apprehension of bias test is used
 Objective external factors associated with that person that makes it a problem
that they are your decision maker
 Reasonable apprehension of bias is reasonable apprehension held by reasonable
and right minded people applying themselves to the question
o Test whether or not an agency is behaving in a way that is procedurally fair (Baker case)
 Substantive error – can’t point to anything wrong in the process I experienced by the decision is wrong
o The decision makers got it so wrong that you have to weigh in as the guardian of the law
o Was the decision of the tribunal reasonable even if I don’t agree with it?
o First step is what is the standard of review here
 Correctness category
 Reasonableness category
o Standard of review (2 options, choose 1)
o Whether that standard was met
o Did the tribunal make a decision that cannot stand on its substance?
 Remedies and legitimacy of JR
Beyond Pure JR: What else does modern Admin Law care about?
 Tribunals as actors, including in rulemaking
 The Charter
 Intersection with aboriginal law/Indigenous legal orders
 The BC ATA & related reforms
 Impact of technology, human-centered design, other new initiatives
Class 3: Rule of Law – Readings
Vavilov:
 Affirmed how the rule of law principle informs the core of the correctness standard of review
 Reasonableness review:
o Means by which reviewing courts give effect to the legislature’s intent to leave certain decisions
with an administrative body while fulfilling with constitutional role of judicial review to ensure
that exercises of state power are subject to the rule of law
o Overall aim is to recognize the legitimacy and authority of administrative decision makers within
their proper spheres and adopt an appropriate posture of respect
 Administrative decision makers must also recognize the principle of the RoL by adopting a culture of
justification and demonstrate that their exercise of delegated public power can be justified to citizens in
terms of rationality and fairness
 RoL serves an integrating and unifying function for all of administrative law (including procedural
fairness) according to the majority
RoL

Traditionally serves as a bulwark against the executive branch of government and supports judicial
oversight of broad statutory grants of discretion
 Role of the courts
o Courts provide an essential accountability function by policing the exercise of delegated powers
to ensure that they are confined to terms and purposes specified by the authorizing statue 
jurisdiction
o Judges are conscious of the separation of powers and are themselves under the RoL constraints
to respect legislative and executive branches
INSTITUTING THE RULE OF LAW:
 4 features that comprise the institutional foundation of the RoL:
o Legal institutions can be clearly differentiated from other institutions such as those found in the
executive and legislative branches – doctrine of separation of powers
o Legal doctrine forms the basis of knowledge in our legal institutions as opposed to political will
or individual judgement
o Law is contained in a system consisting of an organic, evolving body of principles and rules that
strives for coherence
o Legal institutions are staffed by individuals with specialized training (judges, lawyers, police,
etc.,)
LEGAL PRINCIPLES:
 Legal principle is a binding normative standard
 Does not dictate the legal result (unlike a rule)
 Principle serves to guide the judgement and discretion of public officials, especially judges
 When principles intersect or conflict the decision maker needs to take into account the relative weight
assigned to each principle – either reconcile by balancing or giving one more weight
 RoL offers 4 essential guarantees to legal subjects:
o 1) That all persons will be considered formally equally under the RoL
o 2) That public standards will guide the creation, enactment, revision, and enforcement of all law
o 3) That the government and the legal system will treat individuals fairly
o 4) That an existing legal system enables access to legal processes for all persons in order to
resolve complaints (access to justice)
 A state authorized by the RoL will go some distance to guarantee that public officials are both
authorized and bound by law in the exercise of their functions and powers
 How the supreme court has described the RoL:
o It is supreme over private individuals as well as over government officials who are required to
exercise their authority non—arbitrarily and according to the law
o It requires the creation and maintenance of a positive order of laws
o It requires the relationship between the state and the individual to be regulated by law
o It is linked to the principles of judicial independence and access to justice
JURISDICTION IN ADMINISTRATIVE LAW:
 Admin decision makers neither enjoy unlimited power (even if discretionary) nor do they have final say
on question regarding the scope of their delegated authority
ARBITRARINESS & THE ROL:
 In admin law the principle of RoL seeks to prevent illegality and constrain arbitrariness in the exercise of
public authority by political and legal officials in terms of their jurisdiction over process and substance
 All branches of government can behave arbitrarily in relation to the other branches as well as toward
particular persons



o Ex, if the federal or provincial government acts in contravention of the constitutional division of
powers it is acting arbitrarily and will be found ultra vires its jurisdiction
o Ex, If a decision maker in government uses statutory powers outside the purpose of the
enabling statue the decision-maker will have acted outside its jurisdiction and the decision will
be invalidated because it is incorrect or unreasonable in admin law
Arbitrariness connotes indifference by the decision-maker about the procedures chosen to reach an
outcome – and such indifference makes it more likely that the decision itself will be unfair or unjust
o In cases involving procedural fairness we must ask is this a just exercise of power?
Arbitrariness can also be associated with a unilateral method of decision-making – such as one that is
not sufficiently consultative or participatory
A decision may be found arbitrary in substance – because it is biased, illogical, unreasonable,
disproportionate, or capricious
o It will offend what appear to be shared standards of reasonableness, rationality, and morality
o Such a decision may show that the administrator lacked care, attention, concern, or good
judgement toward the affected individual or group
o Instead of a justified response it can exhibit more of a mere opinion, preference, stereotyping,
or negative discrimination
Class 3 Sept 13th: Rule of (Administrative) Law
RoL is about the control of power at anybody’s hands at the end of the day
 No matter how much authority you have there is a limit to your power
Facets of the Rule of Law:
 Foundational legal principle (deep content) – legality
o Principles that are meaningful that justify law – there are principles that are core content to the
rule of law
 Political ideal re institutions (structural) – matters how laws get made between the level of government
the structures there
 Distinctive political morality (organic) – if you live in a RoL society it creates a ecosystem around it
where people believe they will be treated fairly and will behave in a way that is in accordance with
these laws – cultural piece
Foundational Principle of the Rule of Law: - for exam purposes this definition of RoL is most useful (pg. 74)
 4 essential guarantees: (the stuff on other side of the ‘=’ is what the government of Canada said but she
like the first definitions more)
o 1. All people are equal under the law = law is supreme overall, including the government,
authority is not arbitrary
o 2. There are public/knowable standards for legitimacy (rules for rulemaking) = we have and
maintain positive order of laws – recognize that judges decisions are enforceable
o 3. Legal system and government treat people “fairly” = state/individual relationship governed by
law – idea that people won’t just be treated equally but fairly (whatever the system decides that
means)
o 4. Functional legal system actually exists & is accessible (and functional) = linked to judicial
independence and access to justice
 Access to justice issue in Canada is a threat to RoL because so many people can’t access the courts – if
you don’t have a system that’s accessible you don’t have a system that conforms with the RoL
Diagram of the structure:
 Basically, everyone has their own lane and they can’t go all over the place
Albert Dicey on the Rule of Law (1885):
 3 features:
o Absence of arbitrariness + formal legal equality + (English style) constitutional law
 Mechanism:
o Common law + parliament + (unwritten) constitution = institutional control
 Key abiding idea from Dicey: “arbitrariness”
o Arbitrary procedure
 Ex, allocating marks by throwing papers seeing which falls last
o Arbitrary in substance

 Under Dicey no such thing as a legit administrative agency – important piece that came from him
though is arbitrariness
Beyond Dicey: Lon Fuller on the Rule of Law (1964):
Procedural protections make productive, reciprocal social interaction possible
 8 principals including that law must be:
o General
o Public, clear, constant through time
o Non-contradictory, congruent as applied
o Prospective, capable of being performed
 Admin agencies not inherently lawless (contra Dicey)
Joseph Raz on the Rule of Law (1979+):
Legality is practical guide for making effective law – means to the end of guiding behaviour, including the
government
 8 alternative principles: law must be
o Prospective, open, clear, stable
o Underpinned by open, clear principles
o Judicial independence & accessibility NB
o Limits on judicial & police power NB
 How statues are built matters: not too broad, not too specific, not too vague
 Says RoL is about the control of power – there is a need to constrain power – should never be free and
full? Like police
Tom Bingham (2010):
 Much of the above plus rights conception of the RoL from Dworkin
o Focus on legal subject: individual with autonomy, dignity, liberty, equality
 Law is preferable to discretion
 Formal equality but maybe differentiation
 Focus on administrative state
o How public powers exercised
o Fair, accessible DR & adjudication
o International law (& norms)
 Individuals ought to have autonomy, liberty, equality – about treating everyone equally but recognizes
that sometimes you have to treat people differently in order to treat them equally
The Rule of Law in Canada 1959- Present:
Roncarelli v Duplessis (1959):
 Classic statement of RoL post-Dicey but Pre-Charter: fleshing out how each institution has a role
o Legislature sets scope of admin power
o Admin agency acts within jurisdiction
o Courts check for arbitrariness but show deference to legislature (not admin agency)
 An Act Respecting Alcoholic Liquor:
o S.5 The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be
vested in one person alone, named by the Lieutenant Governor in Council
o S.9 commission is authorized to grant, refuse, or cancel permits…
o S.34 commission may refuse to grant any permit
 Separation of powers formalism: no RoL challenge possible
o Dissent: On a consideration of these sections and of the remainder of the Act I am unable to
find that the Legislature has, either expressly or by necessary implication, laid down any rules to
guide the commission as to the circumstances under which it may refuse to grant a permit or
may cancel a permit already granted
 The formal rule of law (Majority)
o [I]t appears that the action taken by [Mr. Archambault] as the general manager and sole
member of the Commission was dictated by Mr. Duplessis as Attorney-General and Prime
Minister of the province...and as representing the provincial government his decision
automatically became that of Mr. Archambault and the Commission
 The substantive rule of law (concurring)
o In public regulation of this sort there is no such thing as absolute and untrammelled
“discretion”, that is that action can be taken on any ground or for any reason that can be
suggested to the mind of the administrator; no legislative Act can, without express language, be
taken to contemplate an unlimited arbitrary power exercisable for any purpose, however
capricious or irrelevant, regardless of the nature or purpose of the statute....
 What might have Lord Bingham said?
The Rule of Law so far:
The RoL Post-Charter: “Deference as respect”
 Courts defer, but they don’t cede the field
o Judicial independence essential to the RoL, even for provincial courts: Prov Court Judges
Renumeration Reference (1998)
o RoL as unwritten principle: Secession Reference (1998)
 Constrains parliamentary sovereignty
 Four unwritten principles together can constrain courts too
 Specific questions courts face re interpreting/applying the RoL:
o 1. What to do about privative clauses (statutory provision which will usually be in the enabling
Act which states that the administration’s decision is final and not open to review by the courts)
 Jurisdiction-conferring (not privative) clauses
 Vancouver Charter SBC s.488
o Board shall have exclusive possession of, and exclusive jurisdiction and
control …possession of, and exclusive jurisdiction and control…
o Exclusive jurisdiction ... includes the power to prohibit the selling of
anything, and the provision of services or performances of any type .... In
granting permission, the Board may impose such terms and conditions as
it deems appropriate.
 Community Services Labour Relations Act SBC 2003 s.8
o Except as specifically provided in this Act, the Labour Relations Board has
exclusive jurisdiction to decide a question arising under this Act.
 Privative clauses:
 Employment and Assistance Act SBC 2002 s.24(7)
o A decision or order of the tribunal under this Act on a matter in respect of
which the tribunal has exclusive jurisdiction is final and conclusive and is
not open to question or review in any court.
 Forest Service Providers Act SBC 2010 s.30
o A decision, order or ruling of the authority made under this provision ...
that is within the authority's jurisdiction is final and conclusive and is not
open to question or review in a court except on a question of law or
excess of jurisdiction
 National Defence Act RSC 1985 s.29
o A decision of a final authority in the grievance process is final and binding
and, except for judicial review under the Federal Courts Act, is not subject
to appeal or to review by any court.
 Rise & fall of privative clauses (fall & fall):
 Crevier 1981: can’t build privative clause strong enough to keep courts out given
that courts are guardian of the RoL
 Dunsmuir 2008: the existence of a privative clause helps to calibrate the
intrusiveness of a court’s review – signals level of respect that must be shown
 Vavilov 2019: actually, we’re just going to ignore them
 Vavilov 2019 (Majority):
 Since we agree that we should show some deference to tribunals, i.e., that the
standard of review is reasonableness ...] “contextual factors that courts once
looked to as signalling deferential review, such as privative clauses, serve no
independent or additional function”
o 2. How to apply “reasonableness” (now the default standard of review)
 Reasonableness 1990’s: Pushpanathan (1998)
 That legal principles are vague, open-textured, or involve a “multi-factored
balancing test” may also militate in favour of [more deference]. These
considerations are all specific articulations of the broad principle of
“polycentricity”. … A “polycentric issue is one which involves a large number of
interlocking and interacting interests and considerations”. While judicial
procedure is premised on a bipolar opposition of parties, interests, and factual
discovery, some problems require the consideration of numerous interests
simultaneously, and the promulgation of solutions which concurrently balance
benefits and costs for many different parties. Where an administrative structure
more closely resembles this model, courts will exercise restraint
 Reasonableness now: Vavilov
 Courts’ role on JR = balancing “legislative choice” against situations where
“respect for the RoL requires a singular, determinate and final answer to the
question before it”
 Admin law needs to “respect[ ] the unique role of the judiciary in interpreting the
Constitution and ensure[ ] that courts are able to provide the last word on
questions for which the RoL requires consistency and for which a final and
determinate answer is necessary”
 We need more oversight than there’s been lately because a] “more robust form
of reasonableness review … accounts for the value of consistency and the threat
of arbitrariness [and] is capable … of guarding against threats to the rule of law
o 3. Importance of the “culture of justification”
 Reasons: Vavilov
 We need more oversight than there’s been lately because a] “more robust form
of reasonableness review … accounts for the value of consistency and the threat
of arbitrariness [and] is capable … of guarding against threats to the rule of law
o E.g., reasons; justification, intelligibility, transparency
o Importance of the “culture of justification”
Class 4: Remedies: At the Tribunal – Readings (39-53, 413-18)
Tribunal does not have inherent jurisdiction that a court does:
 Power to impose a particular remedy must be provided for int h tribunals enabling statue
o Whether a tribunal can order money damages, administrative penalty, or that someone lose
their professional licence will depend on whether its enabling statue gives it that power
The composition, structure, and mandate of most tribunals differ from those of courts, their approach to
remedies reflects those differences
 Tribunals experience in their fields may help them to identify systemic problems or recurring patterns
across multiple individual disputes
 Tribunals sometimes have the ability to stay involved (to remain seized or to have seizin of) a dispute
over a longer period of time
 Tribunals generally aren’t constrained by stare decisis
 These factors allow tribunals to imagine and implement novel remedies aimed at addressing the
systemic problems they see
STATUTORY AUTHORITY:
 Tribunals are creatures of statue so they can’t make orders that affect individuals rights or obligations
unless its enabling statue empowers it to do so
o To determine a tribunals remedial options – first step is to read the statue
o If a tribunal makes orders outside the scope of its enabling statue it’s exceeding its jurisdiction
and those orders will be void
 Tribunals lack the equitable jurisdiction that courts have – cannot order interim injunctions, although
some enabling statues give some tribunals the authority to seek a court injunction specifically to
enforce the statue
 Many enabling statues have an express list of remedies that the tribunal can order
o Ex, tribunals often have the power to make declaratory orders, to order a party to repair a
problem or to mitigate damage, or to order a party to comply with a relevant statue
o Some tribunals that have an obligation to protect the public – professional licencing bodies,
securities commissions, to manage natural resources - fishing and forestry, also have licencing
powers
o Some tribunals have the authority to impose significant fines and incarceration
 Where a tribunal has the power to grant remedies under the Charter including under s.24(1) is a
separate issue
o Some provinces have enacted statues that explicitly bar at least some tribunals from even
considering Charter issues in the first place
WHAT MAKES ADMINISTRATIVE TRIBUNALS UNIQUE:
 Tribunal’s experience may help them to identify systemic problems or recurring patterns to impose
systemic remedies (novel remedies)
o Remedies = prospective, open-ended, subject to ongoing revision/elaboration
o Remedies must not be too remote from the scope of the complaint (Moore)
o Relocation of workplace harassers, publication of order, establishment of human rights training,
additional training, due promotions, implementing mediators, appointing independent
consultant to develop/oversee training (McKinnon)
o Early intervention program, special-ed, monitoring systems to ensure services being provided
(Moore)
o Individual remedies were upheld in Moore
SYSTEMIC REMEDIES AT THE TRIBUNAL LEVEL:
 Many human rights tribunals have the authority under their enabling statues to impose remedies
geared toward addressing systemic problems (ex, McKinnon)
McKinnon v Ontario (Ministry of Correctional Services) (2001)
Human rights complaint in 1988 made by McKinnon, Canadian of Aboriginal descent, about the racist behaviour in
Facts
his workplace – Toronto East Detention Centre

Issue
Decision
Analysis
The 1998 decision found the respondents to have breached s.9 of the Human Rights Code and were liable for
having infringed McKinnon’s rights under s.5(1) and (2) and s.8
o The respondent Ministry of Correctional Services alone being held liable for the poisoned
atmosphere that has clearly persisted throughout the period under review
 By way of remedy the following series of orders were made:
o Several respondents including the Ministry were ordered to pay McKinnon general damages for
various acts of harassment, discrimination, and reprisal
o McKinnon also compensated for reduced salary associated with work-related stress leave and
failure to have been promoted
o Ministry ordered to promote McKinnon and his wife, and relocate other employees found to have
harassed him
o Within 30 days the Ministry must read this series of orders at parade for 5 consecutive days and
attach a copy to the pay slips of the Detention Centre personnel and publish it in the institutional
newsletter
o Ministry is to establish at its own expense a human right training programme that meets with the
approval of the ON Human Rights Commission – program to be conducted within 6 months
 In 1999, McKinnon’s alleged that compliance by the Ministry has been neither timely nor complete and
further acts of harassment and reprisal had occurred, and the poisoned environment of his workplace
continued unabated
o At this hearing, jurisdiction was challenged by the Ministry on the basis that fresh complaints had to
be filed anew with the Commission and could not simply be appended to the prior decision
 Hearing resumed in 2001 and McKinnon was not seeking damages in relation to his allegation of postdecision harassment or discrimination, evidence of such would be led solely to establish the failure of the
ministry to properly implement those aspects of the 1998 orders intended to eliminate the poisoned
atmosphere in which he would otherwise be required to work and that clearer directives would be sought to
remedy the situation
Whether the Board’s 1998 orders were effective in remedying the poisoned work environment at the East Detention
Centre – whether the ministry carried out those orders in good faith with a view to making them effective
Ministry was not acting in good faith
 Remedies granted were novel – prospective, open-minded, subject to ongoing revision/elaboration
 Tribunal remained seized of the matter (retained jurisdiction) until entire series of orders implemented and
complainant’s remedial right was met w/ full compliance and substantial conformity

Jurisdiction over the Subject Matter:
 (1) Did the ministry fail to comply fully with one or more of the 1998 orders (2) in consequence of which (3)
the atmosphere of the Centre remains poisoned?
The Burden of Proof:
 McKinnon needs to only prove noncompliance with the order and then burden shifts to the respondent
Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains
poisoned
The Failure to Comply:
 1) General Considerations
o Ministry’s position is that the evidence doesn’t support the complainants allegations that the
jurisdiction of the Board to do anything about it is in any case foreclosed by compliance with the
letter of the 1998 orders, even if they were not fully complied with, would be limited to tinkering
with those very orders – the crafting of new ones being beyond the scope of this boards authority
o Mere superficial compliance with the orders is not enough – Board agrees
o Even if the Ministry appears to have complied with the letter of my order (by having provided a
human rights training program) the board is entitled to examine the complainant’s assertion that the
program in question was inappropriate having regard to the reasons and findings on which that
order was based
 2) The Training Program: Its Unsuitability and the Invalidity of its Approval
o Ministry claims as proof of full compliance with the commission’s approval of its Systemic Change
program

Board says that the ready-to-go program designed for different purposes in response to
other orders and only modestly modified to include racial issues in a last-ditch attempt to
meet objectives of the order
o Training program contemplated by the order was to have focused primarily on managerial personnel
and have concerned racial discrimination, it was to have been a stand-alone program carried out
primarily at and for the Toronto East Detention Centre
 But the program delivered was designed for Ministry-wide purposes regarding a host of
other matter with insufficient time devoted to racial issues of the kind described in the 1998
decision, inadequate emphasis on training of any managers
o Program is not of the kind ordered and there was no approval of an appropriate program – board
listed ways the order was not executed adequality
 Managers as opposed to line staff often failed to attend the required sessions
 Sessions tried to cover too much information in too little time
 No follow-up training
 Ministry failed to develop consequences for non-compliance with anti-discrimination
policies
 Did not effect a change in behaviour and discriminatory behaviour went underground and
management engaged in avoidance in dealing with it
The Poisoned Workplace Environment: General Evidence
 1) Racism: A Ministry-Wide Problem
o Purpose of program was to effect systemic change and a part of the change was to be from a
poisoned atmosphere to one substantially free of racism
o Evidence already shown indicates the program didn’t work- atmosphere remained substantially
unchanged throughout the Ministry
o Racist behaviour simply went underground – numerous reports over the years identifying various
forms of systemic discrimination at the Ministry – identify management action or inaction as having
created or sustained systemic discrimination at the Ministry over the last 10 years
o Would each and every one of the incidents reviewed, considered in and of itself, constitute a
breach of the Code? Of course not. Would any one of them taken alone demonstrate that the
workplace environment was poisoned? Probably not. But when examined collectively, do they
reveal a workplace environment that remains poisoned for the complainant? Absolutely
Poisoned Atmosphere: Conclusions
 Failure of management at virtually all levels to take his complaints seriously or to properly investigate them
amounts to condonation by the corporate respondent
 Found the Ministry failed to comply with the final order of 1998 decision of this Board and the atmosphere of
the complainant’s workplace remained poisoned for him
Remedies:
 1) Remedial Jurisdiction: Authority to Craft New Orders
o Having found that orders have not been complied with, the atmosphere of the workplace remains
poisoned, the complainant has suffered post-decision harms similar to those identified in 1998
decision – board says they are obviously called upon to do something about it
o Ministry sought judicial review on this point and the reviewing court found:
 Since the Ministry failed to implement the original order the authority the board has under
s.4(1)(a) the Code to direct it to do anything that it ought to do to achieve compliance with
this Act in respect of the complaint and in respect of future practices remains operative
 It would be contrary to the intent of the Human Rights Code to force the complainant to
initiate a new proceeding to address the noncompliance
 It was open to the Board as part of its ongoing obligation to oversee implementation to
recast its original orders to meet what it found to be a continuing problem
 2) The Devlin Recommendations
o Ministry wide remedies sought by the complainant include but are not limited to: ordering the
Ministry to implement within 6 months all of the recommendation made in the Devlin WDHP
Report with certain minor modifications to some of them
o Recommendations and corresponding decisions are:
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Ratio
Superficial compliance with orders is insufficient. Compliance with the orders needs to be congruent with the
reasons and findings on which the orders were based.
 Orders can therefore be revised to appropriately address reasons for failure/ensure better fulfillment Remedy =
Craft new orders (novel remedies)
Moore v BC (Education) (2012) (SCC)
Facts
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Issue
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Tribunal overstepped in creating these systemic remedies
 Upheld the tribunals finding of discrimination against Moore by the district and the personal damages
awarded
 The tribunals systemic remedies were held to be too remote from the scope of the complaint – they were
quashed or invalidated
Decision
o A remedy afforded by a tribunals to an individual claimant could still have a systemic impact, but
the remedy must flow from the claim
 Judge also set aside the tribunals remedial orders against the Ministry on the basis that the connection
between the province-wide fixed cap funding and the closure of the diagnostic centre was too remote
 Also said no need for the tribunal to remain seized on behalf of the individual student who finished his high
school education and will not re-enter the public school system
 The claim was made on behalf of Moore and the evidence giving concrete support to the claim all centred
around him
o While the tribunal was certainly entitled to consider systemic evidence in order for it to determine
Analysis
whether Moore had suffered discriminate it was unnecessary for it to hold an extensive inquiry into
the precise format of the provincial funding mechanism or the entire provincial administration of
special education in order to determine whether Moore was discriminated against

Ratio
 The remedy must flow from the claim – tribunal is not a royal commission
Enforcing Tribunal Orders Against Parties:
 After a tribunal makes a decision and imposes an order, another set of admin law remedies become
available: the enforcement powers
o These may be invoked where a tribunal needs to enforce its order against a party that is not
complying with the order
o Not uncommon among self-regulatory organizations such as professional licencing bodies where
the tribunal acts against individuals rather than adjudicating disputes between parties
 Also, a party to a dispute before a tribunal may want to enforce the tribunals order against another
party on which the order was imposed
THE TRIBUNAL SEEKS TO ENFORCE ITS ORDER:
 Rarely a tribunal may have the power to enforce its own orders
o One tribunal that has the power to enforce its own orders is the federal competition tribunal
(example, order for civil contempt)
o Some tribunals are given authority to enforce monetary obligations – requiring unpaid wages,
imposing liens, making garnishment orders
o Tribunal only has the enforcement powers that its enabling statue gives
 Provincially created tribunals cannot have criminal enforcement powers
 Tribunals generally must apply to courts to have orders enforced
o Tribunals order = presumed to be valid and correct  turned into court orders and enforced the
same as court judgement
o Contempt proceedings may be available if a party fails to abide by a tribunal’s procedural order
or a tribunal’s final substantive order
 A party to an administrative decision may also seek to have the order enforced (e.g., arbitration).

o May bring action in court against another party to enforce tribunal’s order (e.g., Teachers seek
enforcement of arbitration order that a school board set aside certain funds for professional
development).
o Difficult task of convincing the court to intervene this way.
Criminal persecution (quasi-criminal) – hardly used (often last resort)
o Criminal Code s 127 - Offence to disobey a lawful order of a fed/prov tribunal
 Only available if there is no other punishment provided by law (nothing in Enabling
Statue)
Class 4: Remedies – At the Tribunal (Including Charter Remedies)
2 Levels/Stages of Admin Law Remedies:
1) Orders made (remedies awarded) by a tribunal
 A particular type of admin agency
2) Orders that courts make (remedies that courts award) about what the tribunal did/held/ordered
General Characteristics of Tribunal/Agency Remedies:
 Must be statutorily authorized
o Not general/inherent jurisdiction
o Authorization can be: listed or general (McKinnon), explicit or (with exceptions) implicit
 May be broader in their remedial scope
o May be systemically oriented, forward-looking
o Can be diachronic (e.g., tribunal remain seized over time)
o Can consider multiple parties (i.e., polycentric issues)
o Affected by unique nature of membership and expertise
o Different relationship to regulated communities, policy concerns & government priorities, stare
decisis n/a
 Meant to be more efficacious: faster, cheaper, accessible…?
How creative can a tribunal remedy be?
 Brand new remedies?
 Staying seized forever?
 Individual vs systemic approach
 Pros and cons?
McKinnon v Ontario (Ministry of Correctional Services):
 Systemic problems and individual complainant
 Fairly court-like forum
 Novel remedy: effective or ineffective?
 Facts:
o McKinnon is corrections officer at Toronto East Detention Centre
o Regular workplace discrimination and harassment based on Indigenous heritage
o Complained to management in 1988 about poisoned work environment
o Management did nothing to stop offensive behaviour, even condoned/participated in it
 Timeline:
o 1988: internal complaint made to Ministry – failed
o 1988: complaint to OHRC, which attempted mediation – also failed
o 1998: board ruled in Mckinnon’s favour – multiple order made
o
o
o
o
1999: Board hearing into (non-)compliance by Ministry of Correctional Services
2000-01: Ministry sought judicial review that Board was functus officio
2001: Ministry lost, hearing resumed
2002: second Board decision: crafted new orders both Ministry wide and specific, including 3rd
party monitor
o 2002-03: Ministry appealed new orders to ON divisional court, court rejects the appeal
o 2003-04: Ministry appeals divisional court ruling to Ontario Court of Appeal – Ontario court of
appeal affirms divisional court ruling
o 2005: Board (now tribunal) back in session after Ministry exhausts external appeals
o 2007: Further Tribunal decision regarding 2002 orders, Ministry’s shameful conduct remains
seized
o 2011: Tribunal funds prima face contempt case – parties settle, establish 3 year Human Rights
Project
 Statutory Provisions:
o OHRC Preamble: purpose 
 McKinnon: 2002 Newly Crafted Orders
o Ministry wide – 5 in total including
 Implement all but 6th Devlin recommendations
 Executive training of Deputy Minister, Assistant Deputy Minister, Regional Directors
within 6 months of decision
o Toronto East Detention Centre
 Anti-racism training programme with mandatory attendance
 Complaints to be handled by external persons
 Establish “compliance committee”
o Publication
 Summary of decision sent to all employees, read at parade, make available in offices
o Specific to complainant
 Paid leave of absence, reinstatement, promotion
o Professional assistance
 3rd party programme developer & monitor
o Final r4esponsibility
 Deputy Minister of Correctional Services
o Tribunal remains seized until entire series of orders implemented and complainant’s remedial
right met with full compliance and substantial conformity (which was when…?)
 McKinnon: an effective remedy?
o How to effect both compliance and substantive good faith compliance in a recalcitrant
employer?
o Can law simultaneously enforce rights, redress wrongs, and cure systemic problems?
o Is it appropriate for the Tribunal to craft new orders in order to achieve an optimal outcome? An
ideal outcome?
o Can external third parties change culture, create meaningful dialogue, avoid adversarialism?
 Superficial compliance with orders is insufficient – compliance with orders needs to be congruent
with the reasons and findings on which the orders were based
Moore v BC (Education) 2012 SCC:
 Discrimination against child on basis of disability
 Judicial review (i.e., the courts) as a brake on admin agencies’ most ambitious systemic remedies
 Facts:
o Moore was child with severe dyslexia
o In class for k-grade 3 = insufficient - private tutor is sufficient
o Due to severe budgetary shortfalls, school district closes Diagnostic Centre in his 3rd grade,
would have provided more support
o Moore hoes to private schools, learning increased
o Parents allege discrimination on basis of his disability
 BC Human Rights Code s.8
o It is discriminatory if
 A person without a bona fide and reasonable justification denies to a person or class of
persons any accommodation, service, or facility customarily available to the public
 On the basis of the prohibited ground (includes disability)
 BC School Act, Preamble
o WHEREAS it is the goal of a democratic society to ensure that all its members receive an
education that enables them to become literate, personally fulfilled and publicly useful ...
o AND WHEREAS the purpose of the British Columbia school system is to enable all learners to
become literate, to develop their individual potential and to acquire the knowledge, skills and
attitudes needed to contribute to a healthy, democratic, and pluralistic society ...
 Moore: HRT decision (2005)
o Individual discrimination against Moore
 Failed to assess him early or provide appropriate support after Centre was closed
 Parents reimbursed for private school tuition plus 10k pain and suffering
o Systemic discrimination against severe learning disabled students in general
o By school district:
 Underfunding of LD services and closing Centre
 District cut services without considering reasonable alternatives for meeting LD student
needs
o By province
 Funding model capped number of students for whom support could be provided in each
District
 District underfunded
 Failure to ensure mandatory essential services
 Failure to monitor Districts
o Systemic Remedies ordered
 Moore: Appeals
o BCSC (2008): should have compared Moore to other special needs students, not to general
student population – tainted analysis, quashed
o BCCA (2011): Majority agrees with BCSC
 Rowels in dissent: comparator analysis inappropriate
 Question = whether children get meaningful access to educational services
 Moore: SCC Decision
o Special education isn’t the service, it’s the means by which you get meaningful access to the
service of education
 Failure to meet Moore’s needs was discrimination, was not justified
o Individual remedies? Upheld: private school tuition to grade 12 plus nonpecuniary
o Systemic remedies against District/Province? Too remote
 Tribunal is not a Royal Commission
 The HRT has no ability to dictate to the executive on matters of public spending priorities/policy
Enforcing Tribunal Orders Against Parties:
 The tribunal seeks to enforce its own order
o Tribunal powers (rare and/or limited)
o Conversion into court order
 A party seeks to enforce a tribunal’s order
 Criminal prosecution
o Statutory provisions vs Criminal Code
Challenging Administrative Action:
 Be realistic about JR remedies
 Internal tribunals mechanisms
o Slip rule
o Reconsideration and rehearing
o Internal appeals/reviews
o Tribunal Admin du Quebec
 External non-court mechanisms
 Going to court: appeals or JR
Is An Appeal to the Courts Available?
1. Enabling statue
a. Example = BC Securities Act has a right of Appeal (s.167)
i. Says appeal to BC Court of Appeal not trial court because need expert – trial court is less
expert than the commission so no point but BC court of appeal usually more expert
ii. Says that you need to get leave though from a justice of that court
iii. Commission or court may also grant a stay
b. Ex, Canadian Energy Regulator Act
i. The energy commission has the power to review, vary or rescind its own orders
ii. S.72(1) appeal to federal court but limits appeal to questions of law or jurisdiction
1. Appeal with leave
iii. Here they skip the federal court and go right to federal court of appeal. – not going to
trial court
c. Has to be written into the statue or else you don’t have it
d. Majority of tribunals don’t have provisions for statutory rights of appeal
2. Scope of appeal
3. As of right or with leave?
4. Stay of proceedings
If no statutory right of appeal,  go to JR
 Then have a list of questions and stuff to get through to JR (Discretionary, threshold: public body,
standing, deadlines, etc.,)
Class 5: Remedies – Beyond the Tribunal – Readings (53-69)
Going to Court:
 Ability to challenge admin action in the courts is a mixed but necessary blessing
STATUTORY RIGHTS OF APPEAL TO THE COURTS
 Not all tribunals are subject to statutory appeals
 5 major questions you have to ask to determine whether and what kind of appeal is available to them,
from a tribunal to the courts
1.
DOES THE TRIBUNAL’S ENABLING STATUE TO PROVIDE FOR A RIGHT OF APPEAL?

Courts have no inherent jurisdiction to take appeals from admin tribunals
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If a tribunals enabling statue provides for a right to appeal from the tribunal to a court – statutory right
of appeal exists
If there is no right of appeal in the statue, there is no right of appeal
o Party that is unhappy with a tribunal decision would still be able to access the courts via judicial
review – which is an exceptional remedy
Even where enabling statue provides for statutory right of appeal parties may not generally appeal
interlocutory rulings (jurisdiction, procedural or evidentiary issues, or basis)
To be appealable the tribunals decision must decide the merits of the matter or otherwise be a final
disposition of it
Usually, the enabling statue will set out the courts to which tribunal orders may be appealed
o For federal tribunals appeals are usually taken to the Federal court or Federal court of appeal
o For provincial tribunals appeals may be taken to the provinces trial court of general jurisdiction,
to a divisional court, or to a court of appeal
o Very rarely does a statue provide a right to appeal a tribunal decision to Cabinet itself
2. WHAT IS THE SCOPE OF AVAILABLE APPEAL?
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Enabling statue determines its scope completely
Scope varies from tribunal to tribunal
To determine scope, need to read relevant provisions in the tribunal’s enabling statue
Some statues permit complete de novo review of a tribunals decision while others will be limited to
issues of law based entirely on the record
Some enabling statues provide for a statutory right of appeal form an administrative decision-maker
only on question of law or jurisdiction
Enabling statue may also allow only certain parties to bring an appeal
Where scope of statutory appeal is limited parties still have the option of brining a judicial review
application on aspects of the tribunal decision where the appeal mechanism doesn’t apply
3. WHAT IS THE STANDARD OF REVIEW THAT A COURT SHOULD APPLY ON A STATUTORY APPEAL?
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

Since Vavilov the default standard of review for a statutory right of appeal is presumed to be the same
for courts reviewing tribunal decisions as it is for appellate courts reviewing trial court decisions
o In reviewing extricable questions of law, the court would assess the tribunal decision on the
standard of correctness just as trial court would
If there is an error of law, the tribunal’s decisions will be overruled
On questions of fact the standard of review would be palpable and overriding error, just as it is for a
trial court
4. IS AN APPEAL AVAILABLE AS OF RIGHT, OR IS LEAVE REQUIRED? IF LEAVE IS REQUIRED WHO MAY GRANT IT?



Statue may provide that appeals are as of right, or the statue may require leave (permission to appeal)
Where leave is required, it may be the leave either of the original decision-maker or more frequently, of
the appellate body (the court)
For example, BC’s Forest and Range Practices Act provides fir an appeal as of right from the Forest
Appeals Commission to the BC Supreme Court on questions of law or jurisdiction
o By contrast, a person affected by a decision of the BC Securities Commission may appeal to the
BC court of appeal only with leave of a justice of that court
5. IS A STAY OF PROCEEDINGS AUTOMATIC OR DO YOU HAVE TO APPLY FOR IT?
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Stay in proceedings pauses the tribunals decision until the appeal is decided
Rules governing stay of proceedings vary between jurisdictions and tribunals
Some enabling statues empower their tribunals or appellate bodies to stay enforcement of the tribunal
order pending appeal or other conditions – others may not
Bodies created by statue, including tribunals have no inherent jurisdiction to order a stay
USING COURTS: JUDICIAL REVIEW:
 Judicial review is about the inherent jurisdiction of courts to oversee and check administrative action,
to safeguard the RoL
 JR is the review of executive action beyond what the legislature provided for
 Courts always and fundamentally retain discretion to hear, or not to hear, an application for JR
 An applicant will need to cross specific thresholds in order to be heard (in addition to the discretionary
nature that needs to be overcome)
 Historical development of the remedies available through JR has actively shaped and limited the
possibilities and potential of JR
o Prerogative writs were the original forms of JR and continue to be around present form JR too
 In response to the apparent disconnect between what some parties may want by way of remedies and
what they can obtain on JR some monetary damages and private law oriented remedies have sprung
into JR
 JR is always discretionary (exception of habeas corpus – Mission Institution v. Khela, SCC 2014) as this
is a court’s equitable jurisdiction that it is not bound to exercise
o Review of executive action beyond what the legislature provided pro
o BC court has discretion to refuse relief under s.8 JRPA
1.
DISCRETIONARY BASES FOR REFUSING A REMEDY
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JR is fundamentally discretionary in a way appeals are not
Court has the discretion to refuse to hear a matter or to grant a remedy even where one seems clearly
warranted on the facts
Original set of discretionary grounds for refusing relief derive from common law and equity:
o Parties should exhaust all other legal avenues for review before proceedings to the last resort of
JR
o JR application that are brought before a tribunal has finished its proceedings are usually
dismissed for being premature
o Even if statutory time limits for filing a JR application have been met, parties must be aware that
delay and acquiescence may be grounds for a reviewing court to refuse a remedy – parties
should object promptly to any perceived impropriety on the part of the tribunal
 Failing to attend tribunal hearing could waive any right to JR since it seems to suggest
that the party is acquiescing
o Remedy in JR will not be granted where the issues are moot – dispute is over or has not yet
arisen, where tribunal orders have expired or no longer affects the applicant, or where the
litigant no longer actually wants the remedy that the tribunal may have granted had it not erred
o Court will use its discretion to refuse to grant a remedy on JR where the party making the JR
application does not come with clean hands – could include seeking a remedy to facilitate illegal
conduct or to obtain an unfair advantage or flouting the law or making misrepresentations
Factors: (Khosa)
o Applicant’s delay
o Failure to exhaust adequate alternative remedies
o Mootness  where a dispute is over or has not yet arisen, where a tribunal’s order has expired
or no longer affects the applicant, or where the litigant no longer actually wants the remedy
that the tribunal may have granted had it not erred
o Prematurity
o Bad faith
o Balance of convenience to parties (Mining Watch)  who is more disadvantaged by not exercise
JR jurisdiction, not exercising JR could compromise RoL
2. IS JUDICIAL REVIEW AVAILABLE? THRESHOLD ELIGIBILITY QUESTIONS

5 threshold questions that an applicant must cross to be eligible
1) Whether the tribunal whose actions are being challenged is in fact a public body
o Only public bodies can be subject to JR
o
Relevant considerations: (Air Canada)
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Whether the matter at issue is of a more public or more private character
The nature of the decision maker
Nature of decision-makers relationship to a statutory scheme or to government action
Whether the decision being challenges was authorized by a public source of law
Whether public law remedies would be suitable
Air Canada v Toronto Port Authority (FCA 2011)
 Air Canada sought JR of 2 information bulletins issued by the TPA
o The first “announcing a process… through which it intended to award takeover/landing slots”
Facts
o The second “announcing a request for proposals process”
 Air Canada argued that these bulletins constituted unfair and unreasonable decisions he effect of which was
to give Porter Airlines priority use of terminal facilities and takeoff and landing facilities
Was the TPA acting as a federal board, commission, or other tribunal when it engaged in the conduct described in the
Issue
bulletins? NO
Dismissal of Air Canadas application for JR, TPA was acting in private capacity therefore their actions are not subject
Decision
to review
 TPA argues the proposition that the conduct or power exercised must be of a public character
o An authority doesn’t act as a federal board when it is conducting itself privately or is exercising a
power or private nature
 Every significant federal tribunal has public powers of decision making and implied or express powers to act in
certain private ways – such as renting and managing premises, hiring support staff, etc.,
 Determining whether a matte is public or private is a contextual analysis  fact dependent
 Factors relevant to the determination whether a matter is coloured with a public element, flavor, or character
sufficient to bring it within the purview of public law:
o Character of the matter for which the review is sought  is it a private, commercial matter or is it of
broader importance to members of the public?
o Nature of the decision maker and its responsibilities  is the decision maker public in nature, such
as a crown agent or statutorily recognized admin body, and charged with public responsibilities? Is
the matter under review closely related to these responsibilities?
o Extent to which a decision is founded in and shaped by the law as opposed to private discretion  if
the particular decision is authorized by or emanates directly from a public source of law such as
statue, regulation or order, a court will be more willing to find that the matter is public
o
The bodies relationship to other statutory schemes or other parts of government  if the body is
Analysis
woven into the network of government and is exercising a power as part of that network, its actions
are more likely to be seen as a public matter
o Extent to which a decision maker is an agent of government or is directed, controlled, or significantly
influenced by a public entity
o Suitability of public law remedies  if the nature of the matter is such that public law remedies
would be useful, courts are more inclined to regard it as public in nature
o Existence of compulsory power  existence of compulsory power over the public at large or over a
defined group may be an indicator that the decision is public in nature, this is to be contrasted with
situations where parties consensually submit jurisdiction
o Exceptional category of cases where the conduct has attained a serious public dimension  where a
matter has a very serious, exceptional effect on the rights or interests of a broad segment of the
public, it might be reviewable
 Factors applied to the case at hand:
o Decision at issue? Process used to determine who would get a permit to use the landing strip at
Toronto City Airport
o Who made the decision? TPA – characterize it  TPA was created by a tripartite agreement include
the government and letters patent
Who was impacted by the decision? Air Canada directly but also others including air travellers, other
airlines, residents around the airport
o Si the decision public? No – decision as a business decision, TPA was engaged in managing and
operating the airport – despite being made by government their action were of a private nature – not
public enough – appropriate challenge should be brought under contract law (privately)
o Private in nature  operated by itself and financially independent
o TPA not crown agent for this purpose
o No statue constraints on TPA discretion, supplies decision criteria here
o No evidence TPA controlled by the government  revenue generates was private
 No disagreement that TPA’s bulletins find their ultimate source in federal law, but in this context, they are not
acting as a Crown corporation. Matters set out in bulletins are private in nature, such that TPA was not acting
as a federal board nor in a public capacity. Thus, JR is not available.
 An application for JR, and subsequently relief, under the FCA can only be brought against a ‘federal board,
commission or other tribunal.’ These are defined as only those that exercise jurisdiction or powers ‘conferred
by or under an Act of Parl’ or ‘an order made pursuant to Crown prerogative.’
 JR remedies are “available only against exercises of power that are public in character.”

o
Ratio
Highwood Congregation v Wall (2018) (SCC)
2014 the appellant, the judicial committee of Highwood Congregation of Jehovah’s Witnesses, disfellowshipped the
respondent’s daughter and the congregation shuns her and even her family is supposed to limit contact with her
 Wall says no because she is his daughter, so they shunned him too – his real estate business relies on JW’s and
is suffering
Facts
 This decision was confirmed by an appeal committee and by the Watch Tower Bible and Tract society of
Canada (head office of JW in Canada)
 Wall filed application for JR pursuant to Alberta Rule of Court for an order certiorari quashing the decision as
it was procedurally unfair
Do courts have jurisdiction to review religious organizations where concerns about procedural fairness? NO
Issue
 Is a religious congregation a “public body”? what is involvement in religious congregation or being kicked out
of it affects your ability to make a living (affects your property and civil rights)? NO
Decision Disfellowship decision of congregation not subject to JR – congregation was not exercising state authority
 Private law situation cannot seek JR because it is a public law concept
 Just because a body resembles a public body or affects a large subset of public is not enough to make it a
Analysis
public body  this is outside of public law jurisdiction
 “In my view, a decision will be considered to be public where it involves questions about the rule of law and
the limits of an administrative decision maker’s exercise of power.”
The Wall framework
 The public law remedy of JR is reserved for state action and where the exercise of state authority has
“sufficiently public character”
 There is no free-standing right to PF
 A court may intervene in membership decisions of voluntary organizations where property or civil rights are
Ratio
at issue
 If the decisions of voluntary organizations affect legal rights, then PF concerns may be addressed by
reviewing courts
 Only justiciable decisions will be reviewed for fairness (not theology questions)
 Public law remedies like certiorari may not be granted in litigation about contractual or property rights
between private parties
2) Whether the party has standing to challenge a tribunal decision
o Answer is straight forward for individuals who actual parties to an admin action are
o Discretionary public interest standing under which an individual or group may be able to
challenge an admin action on behalf of others (Downtown Eastside)
o Tribunal cannot defend their own decisions – can’t be judge and counsel at the same time

BUT  if there is no one else to represent the tribunal perspective then maybe – if this
body is more adjudicative than policy then this idea should raise alarm bells (Ontario
Energy Board)
Downtown Eastside Sex Workers v Canada (2012) (SCC)
- Public Interest Standing Test
Public Interest Standing Test:
 Is there a serious justiciable issue?
o Some degree of assessment on if this claim might have some merit
o BUT it is a fairly low threshold, not trying to assess at outsight if claim will be successful
o Most of the time that answer to this will be yes if argument is credible
 What is the nature of the plaintiff’s interests?
Ratio
o Sufficient interest that the court will be confident that there will be adequate argumentation to
enable a court to make a reasonable assessment of lawfulness or validity of government’s action
 Are there other reasonable and effective means for bringing the matter before the courts?
o If there are better ways to get the case before the courts and it is reasonable to assume these will be
forth coming, then do that instead.
All three actors for public interests standing should be weighed cumulatively, flexibly and purposively.
Ontario Energy Board v Ontario Power Generation (2015) (SCC)
TEST (discretionary):
 1) Anyone else to represent perspective if the tribunal didn’t?
Ratio
 2) Is this tribunal and decision in question more policy or more adjudicative (if more adjudicative then that is
an issue)
3) Applying to which court?
o Both provincial superior courts and federal courts have JR jurisdiction
o Tribunals enabling statue will usually set out which court has jurisdiction to hear a statutory
appeal to the court - this is not the case for JR
o Which court you go to is typically determined by which level of government created the tribunal
(provincial or federal)
4) Deadlines
o Some statues impose time limits for filing an application for JR
 Federal Courts Act states that a JR application from a federal tribunal to the Federal
Court must be made within 30 days of the time the underlying decision or order is first
communicated
o In BC general time limit is 60 days
o Parties should check all applicable statues, including the tribunals enabling statues, global
procedural and JR acts, and rules of court for time limits affecting JR
o Courts often have authority under statue to extend time period for brining JR application –
where there is a reasonable explanation for the delay, extension would not cause substantial
prejudice or hardship, and/or where the arty can demonstrate prima facie grounds for relief
5) Party has exhausted all other adequate means of recourse for challenging the tribunals actions
o Other means of recourse may include almost any of the legal remedies above: reconsideration
by the same tribunal, appeal to integral appellate tribunals, and other intra-agency mechanism
such as grievance arbitration and appeals to a court
 Depends on the tribunals enabling statue
o Not all means of recourse will necessarily be adequate – in determining what is adequate the
courts will consider:
 Convenience of the alternative remedy
 Nature of error alleged

Nature of the other forum which could deal with the issue
 Remedial capacity
 Existence of adequate and effective recourse in the forum in which litigation is already
taking place
 Expeditiousness
 Relative expertise of the alternative decision-maker
 Economical use of judicial resources
 Cost
o Federal courts act prohibits JR by the federal court where an available appeal of a tribunal
decision to the federal court exists
o The fact that a court may grant JR where a right of appeal exists does not mean that it will do so
3. REMEDIES ON JUDICIAL REVIEW


Application for JR doesn’t automatically stay the enforcement of the underlying tribunal order – unlike
an appeal
o Although the tribunal and court or both may have the power to stay the tribunals order on
application
Legislative decision to make stays automatic for appeals but not for JR applications is consistent with
the last resort nature of JR
a. Prerogative Writs
 Certiorari is the most commonly used prerogative remedy
o Is a special proceeding by which a superior court requires some inferior tribunal,
board, judicial officer, to provide it with the record of its proceedings for review for
excess of jurisdiction
o Successful certiorari application results in the quashing (effectively invalidating) of a
tribunals order or decision
o Quashing the existing decision means that the matter is remitted to the admin
decision-maker who still retains statutory jurisdiction to decide
 Writ of prohibition is another special proceedings issued by an appellate court to prevent a
lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from
exercising a power
o Unlike certiorari which provides relief after a decision is made, prohibition is used to
obtain relief pre-emptively
o Its arrests the proceedings of any tribunal, board, or person exercising judicial
functions in a manner or by means not within its jurisdiction or discretion
 Mandamus is a writ issued by a superior court to compel a lower court or government
agency to perform a duty it is mandated to perform
o Can be used with certiorari – example, certiorari used to quash a decision (for lack of
procedural fairness for example) while mandamus would be used to remit the matter
to the tribunal to reconsider in a procedurally fair manner
o Variation of mandamus gives courts the discretion to remit a matter back to a
tribunal for reconsideration with directions
 Declaration is a judgement of a court that determines and states the legal position of
parties, or the law that applies to them – 2 kinds
 Public law kind – used to declare some government action ultra vires
 Private law kind – used to clarify the law or declare a private party’s rights
under a statue
o Declarations are not enforceable and require anyone to take or refrain from taking
any action

Habeas corpus is writ employed to bring a person before a court most frequently to ensure
that the persons imprisonment or detention is not illegal
o In Canada most applications for HC are brought by people in detained in correctional
facilities, immigration, and mental health institutions or detained by the police
o HC is not inherently discretionary like the other prerogative writs
 Quo warranto is writ used to inquire into what authority existed to justify acts by or powers
claimed by a public office
o Rarely used today
PRIVATE LAW REMEDIES
Harelkin v University of Regina (1979) (SCC)
 There was uncertainty as to whether the student was required to discontinue his studies because he had failed
to maintain the GPA required by faculty regulations or because of some suggestion that his ideas had a
tendency to be neurotic
 Certiorari and mandamus proceedings were launched in 1977 – appellant wanted the decision taken by the
committee in 1976 be quashed and a writ of mandamus issue ordering the University to hold a hearing to
allow the applicant to be heard, to present evidence and to be represented by counsel
Facts
 Sole basis of the application was that Harelkin was not heard by the committee of the council
Relevant Statutory Provisions from University of Regina Act
 S.78(1)(c) provides that the university council shall appoint a committee to hear and decide upon, subject to
an appeal to the senate, all applications and memorials by students or others in connection with any faculty of
the university
 S.33(1)(e) provides that the senate shall appoint a committee to hear and decide upon appeals by students and
others from decisions of the council
(1) Whether the appellant had the right to be heard by the committee of the university council
(2) Whether the Saskatchewan Court of Appeal was right in refusing certiorari and mandamus because
Issue
appellant should have pursued his right of appeal to the university senate before resorting to prerogative
writs
Can H take his case directly to the courts for JR? or does he have to exhaust statutory options first?
Agreed with the decision of the Court of Appeal – appeal dismissed
Issue #1:
Decision
 Committee has a statutory duty to hear the appellant and this duty was not complied with
 Agrees that all person connected with the university who were concerned with the appellants case acted in
good faith
Failure to respect the principle of audi partem and issuance of the writs ex debito justitiae:
 Certiorari and mandamus are discretionary remedies
 Guidance for how the discretion should be exercises – discretion has been more or less depending on the
circumstances of each case
 In some cases, especially those involving lack of jurisdiction courts have gone as far as to say that certiorari
should issue ex debito justitiae
 Cases involving a denial of natural justice could be equated with those involving a lack of jurisdiction – also
certiorari should issue ex debito justitiae where there is denial of natural justice
 Ex debito justitiae means as of right by opposition to as of grace – a writ cannot at once be a writ of right and
Analysis
a writ of grace
 To say in case that the writ should issue ex debito justitiae means that the circumstances militate strongly in
favour of the issuance of the writ rather than for a refusal
Whether the decision of the council committee was a nullity from which there could be no appeal:
 Harelkin argued that the university’s committee’s failure to comply with natural justice rendered its decision
null and void, rather than just voidable – argued that there was no decision to appeal from and that certiorari
should issue because it was the only remedy available to cure the injustice
 Court disagreed – holding that an admin agency’s decision is void ab initio only if that deicison was taken
without jurisdiction – if there was jurisdiction but failure of nature justice – decision is good until it is quashed
or set aside

Ratio
In this case the university committee had the jurisdiction to make the decision it did even though it failed to
observe the rules of natural justice – therefore its decision could have been appealed to the university senate
committee
Whether appellant’s right of appeal to the Senate committee was an adequate alternative remedy – Balance of
Convenience
 Senate was required to hear the appellant on appeal from the university committee – moves to consider
whether such an appeal would have been adequate to cure the failure of natural justice by the university
committee
 Several factors need to be considered in order to evaluate whether the appellants right of appeal to the senate
committee constituted an adequate alternative remedy
o Procedure on the appeal
o Composition of the senate committee
o Its powers and the manner in which they were probably to be exercised by a body which was not a
professional court of appeal and was not bound to act exactly as one nor likely to do so
o Other relevant factors include previous finding, expeditiousness, and costs
 Concluded that the appellants right of appeal to the senate provided him with an adequate alternative
remedy and this remedy was more convenient for appellant as well as for the university in terms of cost and
expeditiousness
 One must exhaust all appeal options before JR will be considered, even in obvious cases of breach of PF.
(though there can be exceptions)
 Breach of the rules of natural justice does not nullify a decision. A denial of NJ renders a decision voidable
not void and therefore can be ‘cured’ on appeal.
 Factors in assessing adequate alternative remedy:
o Composition of appeal body
o Powers (what kind of order can it make? Can it hear evidence? De novo hearing or just appeal?
How are earlier decisions taken into account?)
 De novo hearing: what’s really being asked is what can that appeal body do?
o Procedures by which those powers are exercised
o Cost, expediencies (balance of convenience, respect for legislative intent)
Class 5: Remedies – Beyond the Tribunal
Is Judicial Review (JR) Available?
1) Discretionary!
 Khosa, MiningWatch
2) Threshold Questions:
 Public Body?
o Air Canada v Toronto Port Authority
o Highwood
 Standing?
 Which Court?
 Deadlines?
 Other means of redress exhausted?
o Harelkin
3) What Remedies can you get on JR?
Discretionary:
New Categorical Approach:
 Khosa (SCC 2009):
o Resurgence of list of principled reasons for not granting judicial review: delay, failure to exhaust
alternate remedies, mootness, prematurity, bad faith and so forth
 Mootness – events have moved on
 And so forth – the balance of convenience to the parties

If you grant JR what happens to the parties? What if you don’t? where is the
better balance?
 MiningWatch (SCC 2010):
o Consider balance of convenience to parties
o Not exercising discretion to allow JR could compromise RoL!
 Mission Inst’n v Khela (SCC 2014):
o Habeas corpus is not discretionary though JR still is
 Discretionary but courts have given themselves some guides line when to exercise their discretion
Threshold Questions:
PUBLIC BODY?
Air Canada (2011)
 X
Federal Courts Act:
 S.18(1) JR jurisdiction over matter coming out of federal board, commission, or other tribunal
Facts
 Defined in S.2(1) means any body, person or persons having, exercising, or purporting to exercise jurisdiction
or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative
of the Crown...”
Is the Toronto Port Authority a federal board, commission, or other tribunal?
Issue
Toronto Port Authority is not acting as federal, board, commission, or other tribunal, is not acting in a public
Decision capacity, is not a crown agent  TPA was acting in a private capacity and therefore, their actions are not subject to
review
Analysis

Ratio

Highwood Congregation v Wall (2018) (SCC)
Facts

Issue

Decision

Analysis

Ratio

STANDING:
 Easy if you’re directly affected
 Public interest standing
o Downtown Eastside Sex Workers v Canada (2012 SCC):
 Tribunal standing in challenges to their own decisions
o Ontario Energy Board v Ontario Power General (2015 SCC):
WHICH COURT & DEADLINES:

OTHER MEANS OF REDRESS EXHAUSTED?
Harelkin v University of Regina (SCC 1979)
Facts

Issue

Decision

Analysis

Ratio

Remedies on Judicial Review:
Charter remedies
s.24 (1) of the Charter: anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances
s.52(1) of the Constitution: the Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistent, of no force or effect
Nova Scotia (WCB) V Martin (2003)
Facts

Issue

Decision

Analysis

Ratio

Harelkin v University of Regina (SCC 1979)
Facts

Issue

Decision

Analysis

Ratio

Harelkin v University of Regina (SCC 1979)
Facts

Issue

Decision

Analysis

Ratio

Class Groupwork – Khadr:
1) Short summary of facts & procedural history
 Khadr is a Canadian citizen who has been detained by the United States government at
Guantanamo Bay for over 7 years
 Prime Minister asks this court to reverse the decision of the Federal Court of Appeal requiring the
Canadian government to request the USA to return Khadr from Guantanamo Bay to Canada
 Found that Khadr’s rights under s.7 of the Charter were violated
o SCC says that the decision by lower courts that the government request Khadr’s return to
Canada is not an appropriate remedy for that breach under s.24(1) of the Charter
o Proper remedy: to grant Khadr a declaration that his Charter rights have been infringed,
while leaving the government a measure of discretion in deciding how best to respond
Background:
 Khadr was 15 years old when he was taken prisoner on July 27, 2002, by US forces in Afghanistan –
He was alleged to have thrown a grenade that killed an American soldier in the battle in which he
was captured
o 3 months later he was transferred to the US instillation at Guantanamo Bay and placed in an
adult detention facilities
 Khadr was brought before a status review tribunal, and he was determined to be enemy combatant
and was charged with war crimes and held for trial before a military commission – procedural
delays and setbacks the trial is still pending
 Khadr argues that the government has breached his rights under s.7 of the charter and that the
appropriate remedy for this breach is an order that the government request the United States to
return him to Canada
o The conduct of the government of Canada in connection with the US government violated
his rights under the Charter and requires a remedy that the government now request his
return to Canada
Relevant Statutory & Constitutional Provisions:
 S.7 of the Charter: Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental justice.
 S.24(1) Charter: Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
o Enforcement of guarantees rights and freedoms
Remedy that the court provided in the case:
 Court said that the appropriate is to declare that on the record before the Court, Canada infringed
Khadr’s s.7 rights and to leave it to the government to decide how best to respond to this
judgement in light of current information, its responsibility for foreign affairs, and in conformity
with the Charter
What makes this a hard case?
 For the rule of law
 For remedies
What do you think about the outcome and reasoning in this case?
 Explain why you like or don’t like the outcome and why?
What’s the nearest decent alternative outcome to the one reached in this case?

THE DUTY OF FAIRNESS
HISTORY & THRESHOLD QUESTIONS:
5 Points about Procedure:
 Procedure ≠ substance
 Procedure matters
o Values & tensions at stake
o “Participatory rights” + absence of bias
 SoR = correctness / fairness
 Various sources of procedural rights
o Usu. everything but enabling statute
 Three step analysis for participatory rts:
o Threshold – any fairness?
o Content – how much?
o Application to case at hand
Pyramid of Power – Sources of Procedural Entitlements:
The BC Administrative Tribunals Act:
 Part 4: procedural powers
 Part 6: some procedural sticks
 Part 7: note especially s.51 regarding decisions in writing, reasons
 Always read ATA alongside enabling statue
Procedural Fairness @ Common Law:
 3 step analysis for participatory:
o Threshold – any fairness?
 History & foundational cases: Nicholson, Cardinal, Knight
 “General common law principle of procedural fairness lies as a duty on every public
authority making an administrative decision NOT of a legislative nature AND which
affects the rights, privileges or interests of an individual” …?
 Duty of fairness threshold: bad old days (pre 1979):
 Classifying functions/sources of power
o Threshold: judicial and quasi-judicial
 Trial/trial-type hearing +
 Presume duty to act judicially consistent with principles of natural
justice
 e.g. Audi alteram partem, Nemo judex in sua causa
 Duty of fairness in transition – starting with Nicholson 1979
 “Natural justice” = full oral hearing where judicial / quasi-judicial powers
exercised
 General common law duty of fairness on a sliding scale =
administrative
 e.g. Right to be heard (audi alteram partem), Right to an
independent & impartial hearing (nemo judex in sua causa
debet esse)
 Purely legislative decisions
 Nothing
Nicholson v Haldimand Norfolk (Regional) Police Commissioners (SCC) (1979):






Q: Is Nicholson, who has been a police constable for 15 months, entitled to any procedural fairness
before his employment is terminated?
Police Act 1970 s.27(b) of Regulation 680
o 27. No chief of police, constable or other police officer is subject to any penalty under this Part
except after a hearing and final disposition of a charge … but nothing herein affects the
authority of a board or council
 (b) to dispense with the services of any constable within eighteen months of his
becoming a constable…
Issues:
o 1. Statutory interpretation: expressio unius would give you a clear answer
o 2. Lesser common law duty of fairness for probationary cops?
o 3. If yes, what is the content of the duty?
MAJORITY (Laskin):
o Don’t overemphasize expressio unius
o Concept of “at pleasure” employment = anachronistic / out of date
o Downplays old classification of statutory functions (quasi-judicial, admin, etc.)
o Fairness “halfway house”
o “In short, … although the appellant clearly cannot claim the procedural protections afforded to
a constable with more than eighteen months’ service, he cannot be denied any protection. He
should be treated fairly not arbitrarily.”
What fairness entails – Laskin
o Nicholson should have been given
 reason why he was discharged
 opportunity to respond
 (Didn’t require oral hearing, written was fine)
o Board
 “master of its own procedure”
 good faith decision is not reviewable
DISSENT (Martland):
o “The only interest involved was that of the Board itself. Its decision was purely administrative.
This being so, it was under no duty to explain to the appellant why his services were no longer
required, or to give him an opportunity to be heard. It could have taken that course as a matter
of courtesy, but its failure to do so was not a breach of any legal duty to the appellant.”
Cardinal v Director of Kent Institution (SCC) (1985):
 From the categorical approach toward a more rights-oriented approach
 Facts:
o Kent Institution segregates two prisoners when transferred from Matsqui Institution
o Director refuses to release them into regular prison population, contrary to recommendation
by Segregation Board
o Prisoners not informed of reasons, not given opportunity to be heard
 Penitentiary Act & Regs:
o S.40. (1) Where the institutional head is satisfied that
 (a) for the maintenance of good order and discipline in the institution …
 it is necessary or desirable that the inmate should be kept from associating with other
inmates, he may order the inmate to be dissociated accordingly, but the case of every
inmate so dissociated shall be considered, not less than once each month, by the



Classification Board for the purpose of recommending to the institutional head whether
or not the inmate should return to association with other inmates.
o (2) An inmate who has been dissociated is not considered under punishment unless he has been
sentenced as such and he shall not be deprived of any of his privileges and amenities by reason
thereof, except those privileges and amenities that
 (a) can only be enjoyed in association with other inmates, or
 (b) cannot reasonably be granted having regard to the limitations of the dissociation
area and the necessity for the effective operation thereof.
Are these relevant factors?
o This process was fine:
 Nature of Director’s powers
 Prison context
 No bad faith shown
 Prisoners knew reasons even if not formally told
 Wouldn’t have made a difference (Nemetz CJBC)
o This process was not fine:
 Appearance of “closed mind” in Director
 No independent inquiry into events at Matsqui
 Rights, privileges, interests seriously affected
 Appellants entitled to their “sense of justice”
MAJORITY (Le Dain J):
o General common law principle of procedural fairness “lies as a duty on every public authority
making an administrative decision NOT of a legislative nature AND which affects the rights,
privileges or interests of an individual.”
Content of fairness in this context:
o Director should have:
 Informed prisoners of reasons
 Provided opportunity to make representations, challenge decision & information
o Remedy applies habeas corpus: segregation was unlawful, return them to general prison
population
 Habeas does the same work that certiorari does in the hearing / non detention context
Procedural Fairness = ?
 Nicholson + Cardinal + Kent =
o Where admin decision not of a legislative nature & which affects the rights, privileges, or
interests of an individual, they have
o Right to be heard
 Notice of case against you
 Opportunity to respond
o … with limitations (e.g., oral hearing, independent inquiry not required)
Knight v Indian Head School Division (SCC) (1990):
 Consider:
o Nature of decision
 Legislative or administrative?
 Preliminary or final?
 Presumption: preliminary decisions don’t attract Procedural Fairness entitlements if you get the full
panoply at final stage

Content of Procedural Fairness has “elephantine” quality
Procedural Fairness Threshold Today:
 Via Nicholson, Cardinal, Knight (1985-present)
o Is this a decision that ought to attract a duty of fairness?
 Does decision affect “rights, privileges, or interests” of an individual? Is it a (final, nonlegislative) “decision”?
 General common law duty of fairness lies on all public decision makers. Content of the
duty depends on context but includes right to be heard (know the case against you and
respond),
 And the right to independent / impartial decision maker [we discuss later]
 Also “principles of fundamental justice” if Charter s. 7 [more on this later]
o Purely legislative decisions (sometimes including ministerial decisions)
 Nothing
Duty of Fairness – Limits:
 Duty of fairness only applies to:
o “Decisions” …
o … that affect the “rights, privileges or interests” of an individual
o … but not “legislative decisions” …
 Cabinet/ministerial decisions?
 Subordinate legislation?
 Policy decisions?
Duty of Fairness Applies to:
 “Decisions”… i.e., final dispositions …
o Re Abel (1979 Ont. Div. Ct.)
 Advisory board = “practically speaking the patient’s only hope of release”
o Dairy Producers’ CoOp (1994 SQB)
 Too many interim steps = no Proc F at early stages
o Irvine v. Canada (1987 SCC)
 Don’t “unduly burden and complicate” law enforcement investigative process
 Applies to decisions that affect the rights, privileges, or interests of an individual
o Re Webb (Ont. CA 1978)
 No right to subsidized housing, but an interest in it (vested once living there)
o contra Re Hutfield (Alta. QB 1986)
 Application for hospital privileges
 Does decision cast a “slur”? Interests “sufficiently directly and substantially affected”?
Duty of Fairness DOES NOT Apply to “Legislative Decisions”:
 Definitely includes 1º legislation, no procedural fairness, but what about:
o Cabinet/ministerial decisions?
 Inuit Tapirisat (SCC 1980)
o Subordinate legislation?
 Homex Realty (SCC 1980)
o Emergencies?
Recap: Duty of Procedural Fairness:
 N/A to purely legislative decisions





N/A to Cabinet / policy decisions
May apply to subordinate legislation but not if it’s “essentially legislative in nature”
Applies to final or de facto final decisions, rarely to preliminary
Triggered (to different degrees) by effect on individual “rights, privileges or interests”
Can be suspended / abridged but not eliminated in times of emergency
BAKER & CONTENT:
How Much Fairness?
 A minimum – not perfection
 Three step analysis:
o Threshold – any fairness?
o Content – how much?
o Application to case at hand
 Comparative:
o Criminal law incl. Charter s. 11(d)
o Human rights adjudication
o Licensing regulation
 Always check enabling statute & ATA
Baker v Canada (CIC) (SCC) (1999):
 The leading case on procedural fairness: how to figure out how much Proc F you are entitled to
 Facts:
o Mavis Baker: entered as visitor in 1981, stayed.
o Four children born in Canada (Canadian citizens)
o 1992: ordered deported
o 1993: applied for exemption on H&C grounds
 Written application. Had lawyer, supporting docs
o 1994: Sr. Officer Caden denies, no reasons
 Counsel requests reasons, receives Jr. Officer Lorenz’s inflammatory notes (Court says =
Caden’s reasons)
 Relevant statutory provisions:
o Immigration Act
 s.114 (2) The Governor in Council may, by regulation, authorize the Minister to exempt
any person from any regulation made under subsection (1) or otherwise facilitate the
admission of any person where the Minister is satisfied that the person should be
exempted from that regulation or that the person’s admission should be facilitated
owing to the existence of compassionate or humanitarian considerations.
o Immigration Regulations
 2.1 The Minister is hereby authorized to exempt any person from any regulation made
under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of
any person where the Minister is satisfied that the person should be exempted from that
regulation or that the person’s admission should be facilitated owing to the existence of
compassionate or humanitarian considerations.
o Immigration Manual: Examination & Enforcement
 Two criteria should be considered under Act s. 114(2): public policy considerations, and
humanitarian and compassionate (H&C) grounds. H&C grounds will exist if “unusual,



undeserved or disproportionate hardship would be caused to the person seeking
consideration if he or she had to leave Canada.”
 The guidelines directly address family dependency.
o Relevant? – Convention on the Rights of the Child
 Article 3: “In all actions concerning children … the best interests of the child shall be a
primary consideration”.
 Article 9: “States parties shall ensure that a child is not separated from his or her parents
against their will …” except as necessary and in accordance with applicable law and
procedures
 Article 12: children should have the right to express own views, incl. right to be heard in
judicial and administrative proceedings
Is she entitled to any fairness (Baker)? YES (@ para 20)
How much fairness? (@ 21-28)
o Nature of decision being made & process followed in making it
o Nature of statutory scheme & “terms of the statute pursuant to which the body operates”
o Importance of decision to individual(s) affected
o Legitimate expectations
o Choices of procedure made by agency itself
Application to the case:
o Text @ 206, case @ ¶¶ 29-43
o Legitimate expectations
o Participatory rights
o Note 5 factor analysis @ ¶¶ 31, 32 = fairness “more than minimal” (?)
o Oral hearing?
o Reasons @ ¶¶ 38-43
o Purposes served
o Whether required
Vavilov on Reasons:
 Proc F does not always require reasons
 Reasons for reasons: paras 79-81
 “Where reasons are required, they are the primary mechanism by which administrative decision
makers show that their decisions are reasonable … the provision of reasons for an administrative
decision may have implications for its legitimacy, including in terms both of whether it is procedurally
fair and of whether it is substantively reasonable.”
 Consistent with the ethos of justification
Canada (AG) v Mavi (SCC) (2011):
 Doctrine of legitimate expectations
 A public law / admin decision nested within a contract law situation
 Facts:
o Undertakings to support sponsored family members
 Valid contracts but also “structured, controlled and supplemented” by federal legislation
o Sponsors did not support family members, contested obligation
o Enforcement by provinces
o Undertaking:
 “The Minister … may choose not to take enforcement action to recover money from me
if the default is the result of abuse or in other circumstances. The decision not to act at a





particular time does not cancel the debt. The minister … may recover the debt when
circumstances have changed.”
Are claimants entitled to any fairness? YES. General rule = proc. fairness owed
Content depends on context
o Ordinary debt, not benefits or licensing, undertaken in writing
o Concerns about public supporting relatives – quid pro quo for family reunification is support
Baker five-part test not exhaustive
How much fairness were sponsors entitled to?
o Nature of decision being made & process followed in making it 
o Nature of statutory scheme & “terms of the statute pursuant to which the body operates” 
o Importance of decision to individual(s) affected 
o Legitimate expectations 
 Representations must be “clear, unambiguous & unqualified”
 Proof of reliance not required
 “Given the legitimate expectations created by the wording of these undertakings I do
not think it open to the bureaucracy to proceed without notice and without permitting
sponsors to make a case for deferral or other modification of enforcement procedures.”
o Choices of procedure made by agency itself 
Application to the case:
o “The content of this duty of Proc F include the following: (a) to notify a sponsor at his or her last
known address of the claim; (b) to afford the sponsor an opportunity within limited time to
explain in writing his or her relevant personal and financial circumstances that are said to
militate against immediate collection; (c) to consider any relevant circumstances … keeping in
mind that the undertakings were the essential conditions precedent [to relative immigrating to
Canada]; (d) to notify the sponsor of the government’s decision (e) without the need to provide
reasons.”
The Content of Procedural Fairness:
 Little (more like park & rec pass? < Lots (more like criminal prosecution)
o Notice - consider form, manner of service, timing, content
o Disclosure aka Discovery
o Oral Hearings – Baker, Singh, Suresh
o Right to Counsel
o Right to Cross-X, Call Witnesses
o Timeliness & Delay
o Reasons
 Examples (book @ pg. 179):
o Oral hearing
 Not required re application for compulsory patent licenses: Delmar Chemical
 Required in Khan: credibility at stake
 Not required in Baker
o Reasons
 Not required in Mavi re sponsorship program
 Not required in municipal planning decision
 Required in Cardinal v Kent
 Required in Baker
PROCEDURAL FAIRNESS & THE CHARTER:
The Charter & Procedural Fairness:
 Issue:
o What is the proper relationship between common law procedural fairness and Section 7 principles
of fundamental justice?
 i.e., what can this “trump card” do?
 How do the Charter and common law admin principles interact?
The Charter & Procedural Fairness:
 Preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the
rule of law”
 Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.
 Section 7: Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Charter Remedies:
 Charter s. 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
 Conway (2010): SCC analyzes s. 24(1) in 2 Qs:
o Q1: is admin body a “court of competent jurisdiction”? (a) can it consider questions of law and
(b) has that power been explicitly removed by legislature?
o Q2: if it is, does it have jurisdiction to grant the remedy sought? E.g., total stay of proceedings
Canadian Charter of Rights & Freedoms:
 32. (1) This Charter applies
o a) to the Parliament and government of Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
o b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
 52 (1) the constitution of Canada is the supreme law of Canada, and any law that is inconsistent with
the provisions of the Constitution is of no force and effect
Canadian Bill of Rights (196):
 (1) It is hereby recognized and declared that in Canada there have existed and shall continue to exist
without discrimination by reason of race, national origin, color, religion or sex, the following human
rights, and fundamental freedoms, namely,
o (a) The right of the individual to life, liberty, security of the person and enjoyment of property,
and the right not to be deprived thereof except by due process of law
 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament … be so
construed and applied as not to abrogate, abridge or infringe … any of the rights or freedoms herein
recognized and declared, and in particular, no law of Canada shall be construed or applied so as to …
o (e) deprive a person of the right to a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations.
Bill of Rights vs Charter:
 Bill of Rights:
o Federal only
o Applies to “persons”, “individuals”
o Property rights
o PoFJ generally
o Overrides legislation absent express intention
 Charter:
o Fed/prov/territories
o Applies to “everyone”
o No property rights
o PoFJ only if “life, liberty & security of person” engaged
o Overrides legislation always
To Activate Charter s.7:
 Threshold question: are your “life, liberty or security” interests impaired?
o If not, can still look to common law (i.e., admin law) principles – e.g., BCCLA, Abrametz
o Or Bill of Rights – Singh per Beetz J
Carter v Canada (AG) (SCC) (2015): (not actually admin law case)
 “While the Court has recognized a number of principles of fundamental justice, three have emerged as
central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must
not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object”
 Arbitrariness: no rational connection between object of the law, & limit it imposes on life / liberty /
security
 Overbreadth: law goes too far in denying individuals’ rights in a way that bears no relation to object of
the law
 Gross disproportionality: are negative effects on individual’s rights completely out of sync with object
of law? High standard
The Content of s.7 PoFJ:
 Oral Hearings
 Duty to Disclose & Right to Reply
 Reasons [still more later]
 Right to State-Funded Legal Counsel
 Independent Decision Maker
 Timeliness & Delay
 Ex Parte, in Camera Hearings
Singh v Canada (Minister of Employment & Immigration) (SCC) (1985):
 A classic early case applying the Charter (& Bill of Rights) to an admin law context
 A challenge to the statutory design itself, not its application
 Mainly concerned with oral hearing; also, with reasons
 Statutory provisions:
o Immigration Act s.70-71
 Sections 70 & 71 are triggered iff Minister refuses Convention refugee claim:
 Claimants can apply for redetermination by IAB
 IAB’s duties in considering application for redetermination:



Must consider claimant’s application;
IFF “it is of the opinion that there are reasonable grounds to believe that a claim
could, upon the hearing of the application, be established,” allow.
 Minister gets notice & opportunity to be heard
 IFF redetermination is allowed, claimant gets full procedural fairness @ IAB hearing
Judge Wilson for 3 judges:
o Is the refugee claimants entitled to Charter protection? YES
o Do Immigration Act procedures deny s.7 rights? YES
o Did they get “fundamental justice”? NO
 Credibility questions require oral hearing
 Process is adversarial – right to know case
o Saved by s.1 of the Charter? NO
 Rejects utilitarian arguments
Suresh v Canada (Minister of Citizenship & Immigration) (SCC) (2002):
 Incorporation of Baker common law “procedural fairness” framework into Charter section 7
“fundamental justice”
 Post-9/11 national security case
 Also relevant re duty to disclose and right to reply
 FACTS:
o 1991: Suresh = Convention Refugee status
o 1995: CSIS report re Tamil Tigers → s. 40.1 security certificate
 Fed Ct finds certificate was reasonable
o 1997: Oral deportation hearing, Suresh loses.
o Triggers written submissions re H&C grounds
 Immigration officer writes memo finding insufficient
o 1998: Minister issues s. 53(1)(b) Certificate to deport Suresh in spite of risk of torture
 Prescribed procedure under Immigration Act:
o STEP 1: Minister issues s. 40.1 security certificate
o STEP 2: Fed Ct determines its reasonableness
o STEP 3: oral deportation hearing re terrorism
o STEP 4: written submissions, immigration officer’s memo to Minister only
o STEP 5: s. 53(1)(b) notice: deportation possible even if facing torture
o who can see the problem here?
 ISSUES:
o Do the deportation procedures in the Act violate ss. 2 and 7 of the Charter? Are they saved by
s.1?
o What procedures satisfy the “principles of fundamental justice”?
 The same principles underlie s.7 and the Admin Law duty of fairness, though they are not necessarily
always identical
 S.7 principles require, at a minimum, compliance with duty of fairness principles
 Common law principles are not constitutionalized, but “inform” content of s.7 principles
 What does the duty of fairness require?
o 5 (non-exhaustive) Baker factors
 Applying Baker in s.7 Context:
o Nature of the decision being made, and the process followed in making it
o Nature of the statutory scheme and the “terms of the statute pursuant to which the body
operates”


o Importance of the decision to the individual(s) affected
o Legitimate expectations (?)
o Choices of procedure made by the agency itself
What do the PoFJ require? = “more than Suresh got” between Steps 4 and 5.
o Informed of case to be met
o Opportunity to respond
o Opportunity to challenge Minister’s information
o Written reasons
OUTCOME:
o S. 53(1)(b) does not violate Charter ss. 2 or 7
 Extraordinary circumstances will justify deportation to torture [the “Suresh exception”]
 Therefore, no need to consider whether saved by Charter s. 1
o HOWEVER, decision making structure (problem at Step 4) ≠ principles of fundamental justice
 Problem not with statute but with how it was operationalized so nothing to strike down
 Sent back down for reconsideration (constitutional remedy ≈ effectively certiorari +
mandamus)
Charkaoui v Canada (C&I) (SCC) (2007):
 Tension: national security & accountable constitutional governance - Re ex parte, in camera hearings
 Statutory Provisions: IRPA
o Ministers can issue “certificate of inadmissibility” → detention for “threatening” permanent
residents or foreign nationals
o Review of certificate, detention by Fed Ct judge (can be ex parte, in camera)
 Limited disclosure to individual
 No JR, no appeal if certificate “reasonable”
o Permits deportation based on confidential info
 Automatic detention for foreign nationals while waiting; optional for permanent
residents
 Charter s.7 analysis of Federal Court review process:
o Charter rights engaged
o Relevance of security concerns:
 Can’t excuse procedures from PoFJ
 Effect on individual ↔ level of procedural protection
 Can’t “erode the essence” of s. 7
 Relevant principles of fundamental justice:
o Can’t detain someone without fair process. What Charkaoui got:
 Right to a hearing ✓
 Before independent, impartial individual ✓
 Based on the facts & the law ✗
 Right to know the case to meet and to have opportunity to answer it ✗
o Judicial process as the “cornerstone” of IRPA process
o Judicial independence, impartiality =
 No co-optation by executive
 Judicial not investigative role
 Judge not linked with named person b/c protecting his/her interest ✓
o “based on the facts and the law”? ✗
 See only one side’s material
 Adversarial system compromised

 Not fully inquisitorial either
 Knock-on effects on legal argument
o Right to know the case, have opportunity to answer it ✗
 Incomplete information (not show-stopper on its own) = not knowing what needs to be
said
 Seriousness of impact on individual
 What substitutes for complete disclosure?
 Judge can’t compensate for lack of informed scrutiny
Saved by Charter s.1? ✗
o Pressing & substantial objective BUT
o Means not proportional. Compare to:
 Air India trial counsel undertakings
 UK Special Advocate system
Harkat v Canada (C&I) (SCC) (2014):
 “Incompressible minimum” of information needed to know the case against you even in national
security context =
o Can you give meaningful instructions to your counsel?
o Can you give meaningful guidance and info to special advocates so they can challenge info and
evidence presented?
o Case by case analysis
BC Civil Liberties v Canada (AG) (BCCA) (2019):
 Re administrative segregation hearings
 Right to state funded legal counsel under Charter s. 7
 Right to independent decision maker under Charter s. 7: “unconscious institutional bias” = struck down
per Charter s. 52(1)
 CCRA Administrative Segregation Regime:
o Purposes
o Effects
o Internal review process (per statute + regs)
 T+1: Institution Head reviews order
 T+5: Institutional Segregation Review Board (ISRB), chaired by Deputy Warden, makes
recommendation
 T+30, +60, +90 etc.: ISRB, chaired by Institution Head, makes recommendation to
Institution Head
o Regime silent on right to counsel at ISRB hearings
 BC Civil Liberties – 3 step analysis:
o Threshold – any fairness? [obvious some]
o Content – how much?
 PoFJ “embrace Proc F” therefore use Baker factors
o Application to case at hand
 Review regime
 Right to counsel at ISRB hearings
 PoFJ: How much fairness were inmates entitled to?
o Nature of decision being made & process followed in making it ↑
o Nature of statutory scheme & “terms of the statute pursuant to which the body operates” ↑
o Importance of decision to individuals(s) affected ↑


o Legitimate expectations ↑
o Choices of procedure made by agency itself ↑
BC Civil Liberties – Applying baker Factors @para 206
o “The nature of the decision being made, the process followed in making it, the importance of
the decision to the inmate, the significant role counsel could play at a review hearing, the
significant risk of harm associated with the use of solitary confinement, and the evidence of
past practices, including historical over-reliance on administrative segregation, persuade me
that procedural fairness requires that inmates placed in administrative segregation have a
constitutional right to be represented by counsel at review hearings.”
Remedies points:
o Charter s. 24(1) not available to public interest litigants like BCCLA
o Neither Charter s. 24(1) nor s. 52(1) grant jurisdiction a court doesn’t otherwise have
o Inherent (& BCCA) jurisdiction to grant declaratory relief works even in Charter cases
BEGINNINGS & CONTEXT:
TEXT 177-190, Nicholson, Cardinal v Kent
Fairness in Admin law is concerned with procedure rather than outcome
 Unfairness describes poor procedure rather than the character of a substantive outcome
o Ex, whether the Canada Energy Regulator has properly consulted parties affected by the pipeline
rather than whether the Regulator approves the pipeline application
o Whether an individual deemed inadmissible to Canada on security grounds has been provided with
sufficient information to know the case against them
o Ask whether parties to a grievance arbitration are entitled to representation by counsel and not
whether a labour arbitrator ultimately accepts the grievance
 Fairness looks different from one admin context to another
o Khan: unfair for a university grades committee to refuse to hold an oral hearing when the credibility
of a student was at stake in a dispute over missing exam booklet
o Mavi: it was fair for the government of Ontario not to provide reasons for its decision to collect
debts from sponsoring relatives in the immigration context
o Service Corp. International v Burnaby: it was fair for a municipality not to provide reasons to
residents explaining the municipality’s planning decisions
o Cardinal v Kent: it was unfair for the director of a penitentiary not to provide reasons to 2 inmates
who were kept in solitary conditions despite independent recommendation that they be
transferred to general population
 Baker is the leading authority on the common law duty of fairness
Principles of Fairness:
 The Inherent Value of Fairness:
o Belief that fairness in admin law reflects the belief that fair decision making processes lead to high
quality decisions
 Extending the Reach of Procedural Obligations  historically common law procedural obligations only
attached to judicial and quasi-judicial decisions (Nicholson) – admin decision could be made without
burden of procedural obligations
o ✓✗
Nicholson v Haldimand Norfolk Police Commissioners (1979) (SCC)

Facts
Issue
Decision
Analysis
Ratio
Appellant asserts that, however fragile the appellant’s security of position, he was in law entitled to be treated
fairly and there was a corresponding duty on the respondent to act fairly toward the appellant
 Respondents case is that the fragility of the appellants tenure, the allegation that in law he had no security of
position and was dismissible at please and they contend that there was no obligation to give any notice or
assign any reason or to hear any representations from the appellant before dispending with his services
 Relevant legislation is the Police Act
o Under the Act a police officer can be discharged without procedural protections if they had worked
for under 18 months
 Nicholson served as a constable for 15 months and was discharged by the police board without a hearing –
he sought review
 At trial decision the court said that the consequence of the appellant being short of 18 months’ service when
he was separated from his position was that the board may act as it was entitled to act at common law –
without the necessary of prior notice of allegations or of hearing and, a fortiori, with no right of appeal by the
constable
o Also relied on the express unius rule of construction by noting that the Legislature has expressly
required notice and hearing for certain purposes and has by necessary implication excluded them for
other purposes
o Effect of the judgement is that a constable who has served 18 months or more is afforded protection
against arbitrary discipline or discharge through the requirement of notice and hearing and appellate
review, but there is no protection at all, between the observance of natural justice aforesaid and
arbitrary removal in the case of a constable who has held office for less than 18 months
o
Was Nicholson entitled to PF? YES
In favour of Nicholson, even though statue doesn’t entitle him to procedural fairness, the court held in his favour –
board had a legal obligation to give notice and to hear Nicholson before termination, either orally or written
 The 18 month line and the judicial-non-judicial dichotomy are both arbitrary and unfair
 The old common law rule, deriving much of its force from the Crown law, that a person engaged as an office
holder at pleasure may be put out without reason or prior notice ought itself to be re-examined
 A general duty of fairness applies to admin decisions
 The system of classifying decisions as quasi-judicial or admin is difficult – and to give some PF and deny it to
other when the results of statutory decisions raise the same consequences for those adversely affected, is
unjust, and is arbitrary
 The 18-month distinction which results in an “all or nothing” approach is arbitrary
o Although the appellant clearly can’t claim the procedural protections afforded to a constable with
more than 18 months service, he can’t be denied any protection – he should be treated fairly and not
arbitrarily
o The consequences to the appellant are serious in respect of his wish to continue in a public office,
and yet the respondent Board has thought it fit and has asserted a legal right to dispense with his
services without any indication to him of why he was deemed unsuitable to continue to hold it
 Appellant should have been told why his services were no longer required and given the opportunity to
respond
 Once they had the appellants response it would be for the Board to decide on what action to take, without its
decision being reviewable elsewhere, always premising good faith – such a course provides fairness to the
appellant and is fair to the Board’s right as a public authority to decide whether a person in his position
should eb allowed to continue in office to the point where his right to procedural protection was enlarged
General duty of PF applies to administrative decisions
 The SCC moved away from the categorization and instead focused on the nature of the decision, rather
than the nature of the power exercised
 Duty of fairness lies whenever rights, interests, or privileges are at stake
The rules of natural justice dictate that not just in the adjudicative field, but in the administrative or executive field
as well, there is a general duty of fairness.
 Broadens procedural protection to encompass activities that fall outside of the judicial or quasi-judicial
realm and lessens the importance of such classifications.
Cardinal v Kent Institution (1985) (SCC)
Facts
Issue
Decision
Analysis
Ratio

Kent segregates 2 prisoners after hostage situation – segregation Board recommends release into general
population but director refuses – no independent inquiry, not informed of reasons, no opportunity to be heard
Were they entitled to receive PF in this decision? YES
Director should have informed the prisoners of reasons and provided opportunity to make representations, challenge
decision and information – no duty though for an independent investigation
 General common law principle of PF lies as a duty on every public authority making an administrative
decision not of a legislative nature AND which affects the rights, privileges, or interest of an individual
 The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a
reviewing court that the hearing would likely have resulted in a different decision
o It is an independent, unqualified right
o It’s not about the result reaches, it’s about the process
 In this case the prisoner should have been informed of reasons, given the opportunity to make
representations, challenge decision, and information, no obligation to make an independent inquiry into the
allegation of what occurred at previous institution
General common law principle of procedural fairness lies as a duty on every public authority making an
administrative decision that is not of a legislative nature and which affects the rights, privileges, or interests of an
individual
 Means notice of the case against you + opportunity to respond
o Limitation though – sliding scale
o The right to be heard
 An emergency can postpone or limit procedural fairness but doesn’t eliminate it
Text 190-214, Baker, Vavilov 76-81
Facts
Issue
Decision
Analysis
Ratio
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
Facts
Issue
Decision
Analysis
Ratio

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

GROUP WORK:
Directive on Automated Decision-Making (TBS), Ktunaxa, Abrametz
Directive on Automated Decision Making
 Scheme governing the use of AI in administrative decisions
 Made by the Treasury Board of Canada Sectarists
 Soft law so not legally binding

Short summary of the facts and procedural fairness:
 Don’t use baker for the duty to accommodate
Facts
Issue
Decision
Analysis
Ratio
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


Facts
Issue
Decision
Analysis
Ratio

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
THE CHARTER & PROCEDURAL FAIRNESS:
Text 215-230, BC Civil Liberties Association
Facts
Issue
Decision
Analysis
Ratio
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Indigenous Legal orders & Aboriginal Administrative Law
Guest Lecture
Terminology:
 Administrative Law - the body of law that applies to and regulates the interaction with and operations
of government
 Aboriginal Law - The body of Canadian Law that applies to Aboriginal Peoples of Canada, and regulates
the relationship between the Crown and Aboriginal Peoples
 Indigenous Law - Laws that are created by and govern Indigenous communities, Indigenous
Governments and Decision Makers
Where Admin Law meets Aboriginal Law?




The body of law that regulates the operation and procedures of Federal and Provincial agencies in
relation to Aboriginal groups (also part of reconciliation)
o Duty to Consult
The body of law that facilitates the reconciliation process between the Crown and Aboriginal groups
o Specific Claims Tribunal
The body of law that regulates the operation and procedures of Aboriginal governments
o Band Election Appeals
o Actions of band councils pursuant to the Indian Act
The interaction between Indigenous laws and the Canadian legal system
o Constitutional challenges to Indigenous governance structures
Challenging Government Decisions – Duty to Consult:
 Duty to Consult is a Common Law duty
 Duty to Consult requires the Crown to consult with an Aboriginal group where a decision the Crown is
contemplating could impact that group’s Aboriginal rights including title.
o Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73
 Can (or must) pursue remedy for breach of duty by way of judicial review - administrative law is flexible
enough to give full weight to the constitutional interest of First Nations
o Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53
o Clyde River (Hamlet) v. Petroleum Geo-Services Inc, 2017 SCC 40
 Duty to consult carried out within administrative assessment of projects (i.e., Impact Assessments)
 Tribunals might have a duty to consult depending on their mandate or may just consider whether
consultation has been adequate
o Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council, 2010 SCC 43
o Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41
Challenging Government Decisions – Types of Decisions:
 What types of Crown Conduct trigger a duty to consult?
o Environmental Assessment
 Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34
 Gitxaala Nation et al v Canada, 2016 FCA 187
 Coldwater et al. v. Canada (Attorney General) et al., 2020 FCA 34
o Legislative Action
 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40
o Treaty Making (International Agreements or Treaties with other First Nations)
 Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900
 Gamlaxyeltxw v British Columbia (Minister of Forests, Lands and Natural Resource
Operations), 2018 BCSC 440
Resolving Historic Grievances: The Specific Claims Tribunal:
 First Nations have historic grievances related to treaty annuities, reserve, and money.
 Tribunal co-developed with Assembly of First Nations
 Specific Claims Tribunal Act, SC 2008, c 22 (SCTA)
 No time-barred defenses
 Supreme Court judges as decision makers
 Hearings in communities with oral history evidence
 Funding to bring rejected claims forward and negotiate accepted claims.
Resolving Historic Grievances: Williams Lake Indian Band v Canada (2018) (SCC)
 Williams Lake Indian Band filed claim for breach of fiduciary duty for failing to allot reserve lands at
their village, Yuct
 Claim accepted by Indian Claims Commission, but non-binding
 Successful at Tribunal, rejected at Federal Court of Appeal, upheld at SCC
 Decision:
o Respect for the Tribunal’s Processes and Decisions
o First Nations’ Interests in Land and the Crown’s Fiduciary Duty
o Canada’s Responsibility for Colonial Wrongs
Resolving Historic Grievances: Changes to Tribunal:
 The Specific Claims Tribunal (SCT) since its inception in 2008, had control over its administration,
resources (financial and human) with a dedicated registry (section 10, SCTA) and the statutory ability of
its members to make rules with respect to the duties of staff (section 12(d), SCTA).
 In 2014, Canada enacted the Administrative Tribunals Support Service of Canada Act (ATSSCA) and
included, the SCT in its schedule
 This unilaterally repealed section 10 and 12(d)
 Now SCT can be changed unilaterally by parliament, without consultation with the AFN
 What could some impacts be? What impacts are we seeing?
Indigenous Governments as Decision Makers – Federal Statutory Bodies:
 Bands are Federal Boards or Tribunals under the Federal Courts Act
o Band Councils
o Boards
o Appeal Body
o Arbitrators
 Federal Court practice guidelines for aboriginal law proceedings.
 Questions arising – are Nations that are not Indian Bands still Federal Boards or Tribunals?
Indigenous Governments as Decision Makers – Types of Legislation and Agreements:
 Indian Act, RSC 1985, c I-5
o Custom Election Codes
o Custom Membership Code
 First Nations Land Management Act, SC 1999, c 24
o Land Code
 First Nation Fiscal Management Act, SC 2005, c 9
o Financial Administration Law
 Agreements
o Treaty
o Reconciliation
o Section 7 of the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44
o Co-management
Indigenous Governments as Decision Makers – Types of Decisions:
 Elections
o Linklater v Thunderchild First Nation, 2020 FC 1065
 Membership
o Engstrom v Peters First Nation, 2020 FC 286
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
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Removal from Office
o Sparvier v Cowessess Indian Band, 1993 CanLII 2958 (FC) at para 47; Hall v Kwikwetlem First
Nation, 2020 FC 994 (CanLII)
Taxation
o Ontario Lottery and Gaming Corporation v Mississaugas of Scugog Island First Nation, 2019 FC
813
Other Judicial Reviews
Indigenous Governments as Decision Makers – Types of Challenges:
 Lawfulness or unreasonableness of a decision
 Laboucan v Little Red River # 447 First Nation, 2010 FC 722 at para 36:
o “It is now settled law that Band Councils must act according to the rule of law. This implies that
Council must act in accordance with the duty of procedural fairness when taking decisions
which may affect the legal rights or interests of a band member”
 Bias
 Ratt v Matchewan, 2010 FC 160: never submitted to the Indian Act in choice of
leadership, but ongoing conflicts and legal battles resulted in declaration that Elders
council process was biased and unfair. Reliance on indigenous law for this finding.
 Lafferty v Tlicho Government, 2009 NWTSC 35:
o “While it may appear an anomaly to have a legislative body… re-constitute itself into an
adjudicative body to hear a challenge to the validity of one of its own laws, that is the process
that the Tlicho people decided upon in adapting the Tlicho Constitution”
 Procedural Fairness
 Sparvier v Cowessess Indian Band 1993
o “While I accept the importance of an autonomous process for electing band governments, in my
opinion, minimum standards of natural justice or procedural fairness must be met. I fully
recognize that the political movement of Aboriginal People taking more control over their lives
should not be quickly interfered with by the courts. However, members of bands are individuals
who, in my opinion, are entitled to due process and procedural fairness in procedures of
tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural
justice and procedural fairness are to be applied”
 Salt River First Nation v Matselos 2008: : removal of Chief by Band Council Resolution
does not meet standard of procedural fairness “justification, transparency and
intelligibility within decision making process”.
 Canadian Charter of Rights & Freedoms
 Corbiere v. Canada (Minister of Indian and Norther Affairs), [1999] 2 SCR 203
 Cardinal v Bigstone Cree Nation, 2018 FC 822 at para 52:
o “Denies them a benefit in a manner that has the effect of perpetuating the erroneous notion
that band members who live off the reserve have no interest and a reduced ability in
participating in band governance. The distinction also reinforces the historical stereotype that
off-reserve band members are less worthy and entitled, not on the basis of merit but because
they live off reserve”.
 Are principles of administrative law universal?
 Do they apply equally well to Indigenous governments?
 How much deference should be granted to Indigenous decision-makers?
Dickson v Vuntut Gwitchin First Nation 2021 YKCA
 Facts

Issues
o Does the Charter apply to self-governing First Nation
o Does section 25 of the Charter shield exercises of indigenous self-government from Charter
review?
o Is a residency requirement discriminatory when imposed pursuant to self-government?
QUESTIONS:
 1. What particular issues or challenges would you anticipate Aboriginal groups face in the
administrative law context?
 2. Should standards of review work the same way for Aboriginal decision makers as Crown decision
makers?
 3. Do Administrative Law remedies help solve Aboriginal Administrative law problems?
 4. How do we do this work as practitioners?
Review
Independence, Impartiality, & Bias
Independence:
Terminology:
 Independence: look at structural factors and relationships with courts as comparator
 No reasonable apprehension of bias (RAB): at the individual level look at external barnacles
o At the structural level look at decision making context
 Impartiality: truly open mind, no improper influences
The Meaning of Impartiality:
 Sources include:
o Common law procedural fairness
o Constitutional Law (Charter s.7 PoFJ)
o Unwritten constitutional principles
o Quasi-constitutional statues
 Common law most important here
o Nemo judex in sua causa debet esse
o Audi alteram partem
Committee for Justice and Liberty (SCC 1978):
 A reasonable apprehension of bias (RAB) (or non-independence) must be
o A reasonable one
o Held by reasonable and right-minded persons
o Applying themselves to the question and obtaining the required information
 Q: What would an informed person
o Viewing the matter realistically and practically, and
o Having thought the matter through, “conclude”?
 Test for RAB [ & non-independence]:
o Are you sufficiently free of structural factors that could interfere with your ability to make
impartial decisions?
Independence Starting Point: The First Wave of Thinking:

Independence = look to judicial model
o Security of tenure
o Financial security/remuneration
o Administrative control
o (adjudicative independence – a relational factor e.g. other judges)
Tribunal Independence:
 Recognitions that even independent tribunals aren’t exactly like courts
o CP V Matsqui Indian Band (1995 SCC): 3 elements from judicial independence still true but could
be others; tribunals vary, be flexible. Also look at how it operates in real life: tribunal as-acting
rather than on-paper.
o 2747-3174 Quebec v Regie (1996 SCC): regarding points of contact with Minister; fixed term
appointments.
 What does sufficiently free of structural factors that could interfere with your ability to make impartial
decisions mean in the context of appointments to independent tribunals?
Ocean Port Hotel Ltd v BC (SCC) (2001):
 The second wave in thinking, beyond independent tribunals
 What does “sufficiently free of [structural] factors that could interfere with your ability to make
impartial decisions” mean in context of at pleasure appointments to administrative agencies? Are they
even still allowed?
 Facts:
o Ocean Port operates a hotel and pub in Squamish BC the RCMP investigated a number of
incidents in and around the Ocean Port Hotel
o Ocean Port Hotel alleged liquor license violations
o Inspector Tait investigates, present case to Inspector Jones
o Jones conducts hearing per s.20 imposes 2-day suspension to be served over a weekend
o OP appeals to Liquor Appeal Board, de novo hearing, LAB confirms suspension
o Statutory right of appeal: OP appeals to BCCA to set aside LAB decision based on insufficient
independence
 BCCA agrees: LAP members don’t have security of tenure
 Liquor Control & Licensing Act 1996 (since repealed and replaced)
o S.3, s.20 continues Liquor control and licensing branch
 Minister’s powers and powers to GM to investigate, adjudicate, penalize
o S.30 continues Liquor Appeal Board (focus on SCC judgement)
 Pyramid of power re tribunal independence – Ocean Port

McLachlin J:
o
o
o
o
Fundamental distinction between tribunals and courts
Nature of admin tribunals: not distinct from executive
No freestanding constitutional guarantee of tribunal independence
Conclusion: “While they may possess adjudicative functions, they ultimately operate as part of
the executive branch of government, under the mandate of the legislature. They are not courts,
and do not occupy the same constitutional role as courts.”
 Para 32
3rd Jurisprudential Wave?? Stalled
 For example: McKenzie v Minister of Public Safety & Solicitor General (BCSC 2006)
o High end of adjudicative spectrum
Bias, Impartiality, Independence: Real Life Concerns
 Appointment and removal process
o Partisan political appointments
o Short term appointments
o Institutional culture and peal who don’t fit in
Keen v Canada (Federal Court 2009):
 At pleasure appointments, hot issues, and politics
 Facts:
o Keen: 5 year term appointment as member of CNSC, then also appointment as President
o 2007: license violation problems @ Chalk River. CNSC orders reactor shut down. Worldwide
isotope shortage
o Minister issues Directive to overrule CNSC decision, Parliament passes Bill C-38
o Minister notifies Keen of intention to terminate her as President
 Accomplished by OIC
 Keen seeks JR of OIC, resigns as member
 Nuclear Safety and Control Act s.10:
o (1) The Commission consists of not more than 7 permanent members to be appointed by the
Governor in Council.
o (2) Notwithstanding subsection (1), the Governor in Council may appoint temporary members
of the Commission whenever, in the opinion of the Governor in Council, it is necessary to do so.
o (3) The Governor in Council shall designate one of the permanent members to hold office as
President.
o (4) The President is a full-time member of the Commission, and the other members may be
appointed as full-time or part-time members.
o (5) Each permanent member holds office during good behavior for a term not exceeding five
years and may be removed at any time by the Governor in Council for cause.
 Did Keen hold office of President at pleasure or during good behaviour?
o If at pleasure, fairness requirement met
o If during good behaviour, they were not
 Court finds office was held at pleasure
o Should an office like this be held at pleasure?
o How should government behave toward it?
Bias:
 If you know a judge will always say no to a particular type of claim is that bias? – she doesn’t like
slippery slope arguments so don’t do that on the exam
Terminology:
 Bias = partiality toward a particular outcome
o Can be: at the individual level or at the institutional/structural level
 IMPARTIALITY: independence, no reasonable apprehension of bias at individual level, and no RAB at
structural level
o Independence: look at structural factors and relationships with courts as comparator
o No RAB @ individual level: look at external barnacles
o No RAB @ structural level: look at decision making context
 Impartiality: truly open mind, no improper influences
Reasonable Apprehension of Bias (RAB):
 Must raise at first opportunity
 Based on apprehension of bias, not proof of actual bias
o Must be substantial – like balance of probabilities
 Can be individual or institutional
 How much RAB is “ok” depends on context
o Understand the statutory scheme!
o Consider parties & relationships
Committee for Justice & Liberty (SCC) (1978):
 “a reasonable apprehension of bias (RAB) [individual or structural] must be
o a reasonable one,
o held by reasonable and right-minded persons,
o applying themselves to the question & obtaining the required information …
 Q: What would an informed person,
o viewing the matter realistically and practically, and
o having thought the matter through, conclude”?
 TEST FOR RAB:
o Are you “sufficiently free” of [individual or structural] factors that could interfere with your
ability to make impartial decisions?
Individual RAB: What if?
 The decision maker is:
o Your uncle, Minister’s cousin, long term member of local community, appointed by a political
party, politically active, in a position to benefit ($$)
 The decision maker:
o Disagrees with government’s current policy direction
o Supports an advocacy group
o Has prior involvement in case
 The decision maker:
o Has prior relevant experience
o Is involved at several stages
o Has well known informal views contrary to one party
o Has made public statements contrary to one party

o Works in an agency that adheres to policy consistency
Majority of agency personnel:
o Are appointed by a political party in power
o Are dismissed by a new political party in power
Consider Context & Statutory Scheme in “Easy” Individual RAB Cases:
 1. Pecuniary ($$) or material interest in a particular outcome
o Direct
o Indirect: Energy Probe v Canada (Atomic Energy Control Board) (FCA 1985)
o Widespread group of beneficiaries?
o Statutory authorization of “bias” e.g., self-governing professions
 2. Personal relationships w/ those in dispute
o How significant is the relationship?
o Look at context, time, necessity: is partiality expected? (e.g., tripartite labour tribunals)
o Brar v BC College of Vets (BCSC) (2011):
 Presumption of impartiality for tribunal members
 3. Prior knowledge, info about, or involvement in matter in dispute
o Wewaykum (SCC 2003) re Binnie J as former federal ADM of Justice
o Mediation privilege (also consider CRT)
o Tribunal member must decide based on information before them (not e.g., their own internet
research)
o Cayton Report on LSBC: confidential advice by Benchers or Equity Ombudsperson
 4. Attitudinal predisposition toward particular outcome
o Descending into the arena with interventions: Cengarle v LSUC (2010)
o Commission of Inquiry & “much-speaking judge”: Chrétien v Canada (Fed Ct 2008)
o Ex parte communications with a party
o Saying stupid stuff on social media, “friending” parties (also suggests prior relationship)
o Inquisitorial structure: Thamotharem (2008)
o Prior advocacy? Great A & P (1993)
o Lived experience & social justice issues
o Retweets?
o Sometimes RAB test N/A: question is whether tribunal / individual has a closed mind?
 Old St. Boniface re municipal governance
 Nfld Telephone re consumer advocate
 Gitxaala re GIC’s political / policy work
Institutional/Structural RAB, Adjudicative Decision-Making & Consistency:
 Delegatus non potest delegare & administrative independence
 How to ensure consistency?
o Full Board Meetings
 Consolidated Bathhurst
 Tremblay
o Policy statements / guidance
International Woodworkers v Consolidated Bathurst (SCC 1990):
 Facts:
o Union/company dispute goes to 3 member panel of OLRB
 Parties argue a legal test should be changed
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
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o Panel members discuss at Full Board Meeting
o Panel reconvenes, upholds jurisprudence. Company challenges, asks Board to reconsider
o Board reconsiders, upholds Full Board Meeting process if meeting limited to policy implications
Statutory provisions:
o Full Board Meeting
 OLRB has power to establish own practice
 Full board meetings evolved as matter of practice – not provided for in statute
 No attendance
 No minutes
 No evidence, party submissions (written record)
 No vote
 Discussion limited to “policy questions”
Issues:
o Does the duty of fairness preclude members of an agency panel, which heard a case, from
discussing it with other members of the agency, after the hearing has ended but before the
panel has rendered its decision?
 i.e., have these rules been violated:
 The person who decides must hear
 The parties’ right to know the case to be met?
DISSENT (Sopinka): We must consider
o The effect of the full board meeting
o The principles of “natural justice” / Proc F
o Should policy be treated like “law” or “fact” in terms of being challengeable?
o Collision: uniformity v. “natural justice” / Proc F protections against RAB  Proc F must win
MAJORITY (Gonthier):
o Board faces institutional constraints
o Natural justice as context-specific
o Analogy to judicial independence
o Audi alteram partem imposes 2 conditions on full board meetings:
 Can’t discuss facts
 Disclose to parties any new grounds for the decision that arise
Tremblay v Quebec (SCC 1992):
 Facts:
o Tremblay denied reimbursement for bandages, appeals – pure Q of law
o Commission president vets decision, disagrees, sends to “consensus table” (not in statute)
 Gonthier J for the court finds “compulsory consultation”: minutes, vote, boss present
o Original member changes mind; causes “hung” panel – so president decides
 MAJORITY (Gonthier):
o Does “consensus table” give rise to RAB? Problematic in terms of:
 Who can initiate (President or legal counsel)
 “compulsory consultation” for panel
 Procedure employed: minutes, votes
 “prior commitment” situation for President
o Internal directives can be scrutinized more than statutory structure
Consolidated Bathurst & Tremblay: Questions
 What is the difference between “permissible pressure” and unacceptable “compulsory consultation”?



Does voting, taking minutes worsen or improve the full board / consultation process?
How much compromise on Proc F / RAB is justified in the interest of consistency, efficiency, workability?
Then again: why not allow pressure when it comes to policy matters?
Multifunctionality – Multiple Roles:
 Cayton Report on LSBC
o Lawyers indemnity fund
o Hive off disciplinary tribunal, keep benchers off it?
 BC Securities Commission and similar
 BCCLA v Canada (AG)
BC Civil Liberties v Canada (AG) (BCCA) (2019):
 Re administrative segregation hearings
 Right to state funded legal counsel under Charter s. 7 discussed as matter of procedural fairness
 Right to independent decision maker under Charter s. 7: “unconscious institutional bias” = struck down
per Charter s. 52(1)
 CCRA Admin Segregation Regime
o Remember internal review process (per statue and regulations)
 T+1: Institution Head reviews order
 T+5: Institutional Segregation Review Board (ISRB), chaired by Deputy Warden, makes
recommendation
 T+30, +60, +90 etc.: ISRB, chaired by Institution Head, makes recommendation to
Institution Head
 “An institutional head has an ongoing statutory obligation to ensure that an inmate placed in
administrative segregation is released at the earliest appropriate time. It follows that the institutional
head will, at the time of the segregation review, already have concluded that the inmate’s confinement
in segregation is the only reasonable alternative to address the safety and security issues that led to the
initial placement. In the circumstances, such a “review” cannot reasonably be regarded as being
impartial, independent, or meaningful.” (@ para 174)
Does the Current Approach Make Sense?
 What are the facts to consider in deciding how much independence tribunals must exhibit?
o Policy vs adjudicative function?
o Stage of hearing?
o Need for contextual knowledge/expertise?
Perspective From A Tribunal
Guest Lecture: Simmi Sandhu, Chair of Civil Resolution Tribunal
Admin law affects what we value the most:
 Immigration and Refugee Board
 Health professions Review Board, College of Physicians and Surgeons
 University Disciplinary/Admissions, Councils, College of Teachers
 Workers Compensation Appeal Tribunal, Employment Standards Tribunals, Labour Relations Board, Law
Society of British Columbia
What is the CRT?



Part of the justice system
1st online tribunal in Canada
Bringing the justice system to the public
Online Courts =/= Accessible & Equitable Justice:
 Status Quo + Zoom Hearings
 Fundamental culture and system change, co-designed and tested with vulnerable populations
Online Civil Justice Services – 2015 Survey
 81% would use an online civil justice process that was user-friendly and available 24/7
Legislated Mandate:
 S.2(2) of the Civil Resolution Tribunal Act:
o …provide dispute resolution services…, in a manner that
 A) is accessible, speedy, economical, informal, and flexible,
 B) applies principles of law and fairness, and recognizes any relationships between
parties to a dispute that will likely continue after the tribunal proceeding is concluded,
 C) uses electronic communication tools to facilitate resolution of disputes brought to the
tribunal, and
 D) accommodates, so far as the tribunal considers reasonably practicable, the diversity
of circumstances of the persons using the services of the tribunal
Jurisdiction:
 Intimate images protection anticipated in 2024
o Intimate image protection order
o Monetary damages claim
o Administrative penalty
 Accident benefits May 2021
 Societies & cooperative associations July 2019
 Motor Vehicle Accidents April 2019
 Small claims <$5K June 2017
 Strata (Condominiums) July 2016
CRT Process & Technology:
 1) Diagnosis, Info, & Self-help – solution explorer (higher dispute volumes and higher degree supported
by technology)
 2) Intake – apply and respond (lower dispute volumes and even lower degree supported by technology)
 3) Party to Party Negotiation – online discussion (lower dispute volumes and a bit higher degree
supported by technology)
 4) Facilitation – facilitated negotiation & decision preparation (same dispute volume and much lower
degree supported by technology)
 5) Decision – adjudication (much lower dispute volume and medium degree supported by technology)
Solution Explorer:
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Free public legal information and tools available 24/7
Guided pathways
Interactive questions and answers
Template letters and worksheets
Resolve or prepare for CRT process
Application:
 Online Application – can reply or respond
After Application  Negotiation
 Negotiation Platform
After Negotiation  Facilitation
 Case managers are dispute resolutions experts who help people reach agreements
 Very flexible – choice of how and when to work on dispute
Final Step  CRT Decision
 Online Adjudication Process
o Entire process is conducted online
 Parties use CRT account to participate
o Prepare agreed statements of fact
 With assistance of case manager
o Upload digital evidence
 Documents, pictures, videos, emails, etc.,
o Arguments
 Applicant submission
 Respondent response
 Applicant reply
Guiding Principles of CRT:
 Timely: 60-90 day process as target
 Flexible: range of dispute resolution options
 Accessible: online access 24/7, free legal info/tools, free interpretation
 Affordable: staged fees, usually no travel or legal costs, simple fee waivers
 Efficient: active case management, automated processes, continuous improvement
CRT Process:
 User centered design within the parameters of principles of NJ
 Make legal tech feel familiar for the public
 Don’t let outlier scenarios complicate your processes
 Build for accessibility – flexibility
 Proportionality
Procedural Fairness & Proportionality:
 SCC in Baker: duty of fairness is flexible and variable
o Depends on 1) nature of decision made and the process 2) nature of the statutory scheme 3)
the importance of the decision to those affected 4) the legitimate expectations of the person
challenging the decision and 5) the procedural choices
 CRT strata dispute: Downing (2023 BCCAT), BCCA stated – relatively high procedural fairness
 CRT – SC disputes: lower level of procedural fairness
Standard of Review
The History Matters: Getting to Vavilov
Courts vs Tribunals (these things are still true today):
 Appeal from trial court:
o Uniform procedure
o Substantive review of content: there is one right answer
o Standard of review: correctness
 Error of law: must correct it
 Error of fact: must correct palpable and overriding error (deference to trial court’s
firsthand engagement with facts)
 Judicial review from tribunal/agency:
o Procedure not uniform, but standard of review for procedural fairness = correctness
o Substantive review of content: reasonableness of correctness
 Reasonableness review must entail a sensitive and respectful, but robust, evaluation of
administrative decisions (Vavilov)
Standard of Review (This is still true today):
 2 steps:
o 1) Determine what the standard of review is (today: correctness or reasonableness)
o 2) Apply it (ask: was this particular tribunal decisions “correct” or “reasonable” as appropriate?)
Please ask yourselves:
 Under what circumstances should a court defer to a tribunal on a substantive question the tribunal
decided?
o i.e., the court lets the tribunal’s decision stand within limits, even if court would have reached a
different decision
 Under what circumstances should a court not defer?
o i.e., the tribunal decision has to be correct (in court’s view) or the court will quash it
Knotty Issues & Touchstones (cycle diagram):
 To defer, or not to defer?  Jurisdiction (Pre-CUPE- don’t defer)  Privative Clauses (CUPE) 
Legislative Intent (Bibeault) Expertise (Pezim, Southam) Workability (Dunsmuir) (fail)  Rule of
Law (Vavilov…) (loops back) To defer, or not to defer?
Review: Jurisdiction – Conferring Clauses:
 Vancouver Charter, SBC 1953, s.488
o (1) The [Park] Board shall have exclusive possession of, and exclusive jurisdiction and control of
all areas designated as permanent public parks of the City …
o (6) … possession of, and exclusive jurisdiction and control of real property includes the
authority to determine how such real property shall be used, what fees or rental charges shall
be levied and … what improvements shall be made thereon….
o (7) Exclusive jurisdiction … includes the power to prohibit the selling of anything, and the
provision of services or performances of any type …. In granting permission, the Board may
impose such terms and conditions as it deems appropriate.
 Community Services Labour Relations Act, SBC 2003, s.8
o (2) Except as specifically provided in this Act, the Labour Relations Board has exclusive
jurisdiction to decide a question arising under this Act.
Review: Privative Clauses:
 Employment & Assistance Act, SBC 2022, s.24(7)
o A decision or order of the tribunal under this Act on a matter in respect of which the tribunal
has exclusive jurisdiction is final and conclusive and is not open to question or review in any
court.
 But remember Crevier (SCC 1981):
o There is no such thing as a privative clause that can completely eliminate judicial review, b/c
courts are guardians of the rule of law.
Review: Statutory Appeal Provisions:
 Securities Act, RSBC 1996, c. 418, s. 167
o A person directly affected by a decision of the commission … [subject to some exceptions] may
appeal to the Court of Appeal with leave of a justice of that court.
 Legal Profession Act, SBC 1998, c. 9, s. 75
o (1) A party to a review [of a lawyer’s bill] may appeal to the court …
o (2) On the appeal, the court may make any order it considers appropriate.
 If legislature puts a statutory appeal provision in signals less trust of the tribunal at the end of the day,
they want people to be able to go the courts if they have to
 Statutory appeal provisions allows for appeal outside the tribunal system into the courts
The Pyramid of Power: Legislature Drafts, Courts Interpret:


Jurisdiction – enabling statue creates tribunal that has a certain jurisdiction, so the enabling statue
trumps common law to the extent that it exists in a certain jurisdiction because tribunals have no
inherent jurisdiction, they have to get it from their statue
Standard of review use to be mostly correctness
In the “Bad Old Days” SoR was all about Jurisdiction:
 Original (pre-1979) judicial strategy justifying barging right in there: statutory interpretation
 Intra vires / within jurisdiction = supposedly protected by privative clause
 Tiny space & keeps getting tinier
o BUT judges police the boundaries of jurisdiction.
o High level of scrutiny, ever-growing caveats on jurisdiction.
o SoR = correctness.
CUPE Local 963 v New Brunswick Liquor Corp (SCC 1979):
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
PSLRA – Public Service Labour Relations Act in New Brunswick
A badly drafted statute creates ambiguity
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A new approach to jurisdiction & privative clauses
The beginning of deference – this case invented “patently unreasonable” standard of review
PSLRA grants jurisdiction over complaints to PSLRB
o 19(1) The Board shall examine and inquire into any complaint made to it that the employer, or
any person acting on its behalf, or that an employee organization, or any person acting on its
behalf, or any other person, has failed
 (a) to observe any prohibition or to give effect to any provision contained in this Act or
the regulations under this Act.
PSLRA protects Board with a privative clause – this is a strong privative clause
o 101(1) Except as provided in this Act, every decision … of the Board … is final and shall not be
questioned or reviewed in any court.
o (2) No order shall be made, or process entered, and no proceedings shall be taken in any court,
whether by way of certiorari … or otherwise, to question, review, prohibit or restrain the
Board … in any of its or his proceedings.
PSLRA: Prohibited Actions During Lawful Strike
o 102(3) … employees may strike and during the continuance of the strike
 (a) the employer shall not replace the striking employees or fill their position with any
other employee, and
 (b) no employee shall picket, parade or in any manner demonstrate in or near any place
of business of the employer.
o Statutory ambiguity  is a manager an employee?
CUPE: Dickson J’s Analysis
o 3 Big Steps:
 Jurisdiction – courts stop weighing in on jurisdiction where you shouldn’t
 Board has jurisdiction in “narrow sense of authority to enter upon an inquiry” so
stop there.
 “The question of what is and is not jurisdictional is often very difficult to
determine. The courts, in my view, should not be alert to brand as jurisdictional,
and therefore subject to broader curial review, that which may be doubtfully so.”
(¶10)
 Privative Clause – these are important
 Recasting jurisdiction: Dickson on privative clauses
o “Section 101 constitutes a clear statutory direction on the part of the
Legislature that public sector labour matters be decided by the Board.
o “The interpretation of s. 102(3) would seem to lie logically at the heart of
the specialized jurisdiction confided to the Board. In that case, not only
would the Board not be required to be “correct” in its interpretation, but
one would think that the Board was entitled to err, and any such error
would be protected from review by the privative clause in s. 101….” (¶¶
14-15)
 SoR = Patent Unreasonableness
 Ambiguity & Patent Unreasonableness
o “The ambiguity of s. 102(3)(a) is acknowledged and undoubted. There is
no one interpretation which can be said to be ‘right.’ The [3 separate]
judgments of the Court of Appeal are in irreconcilable conflict.” (¶ 17)
o Dickson finds Board’s interpretation is at least as reasonable as court’s –
∴ not “patently unreasonable”
CUPE: The Result
o 2 clearly articulated standards of review:
 1) Jurisdictional questions = correctness (i.e., tribunal must get it “right”)
 Outside jurisdiction  SoR still = correctness.
 Judges still police boundaries of jurisdiction but should be reluctant to brand as
jurisdictional a question “that which may be doubtfully so.”
 2) Re content within jurisdiction = patent unreasonableness (i.e., tribunal is “entitled to
err”)
 Intra vires / within jurisdiction
 Says the board is entitled to be wrong and court is does not have power to
interfere as long as not patently unreasonable
 Standard of review = patent unreasonableness
Sequels to CUPE:
 Bibeault (SCC 1988): Jurisdictional question is one of legislative intent
o Pragmatic and functional analysis
o Central question: what legislature intended jurisdiction to be
 Not just privative clause – Indicia of legislative intent include wording and purpose of
statue, reasons for tribunal, expertise, nature of problem
The 1990’s: A New Justification for Deference
 Focus on privative clause gives way to focus on expertise
o Pezim (1994) & Southam (1997)
o Expert tribunal + public interest mandate & broad powers + Q within expertise + no privative
clause + statutory right of appeal = reasonableness simpliciter
 Result: 3 standards of review – patent unreasonableness (defer), reasonableness (sometimes called
reasonableness simpliciter), correctness (do not defer)
Canada (Director of Investigation & Research) v Southam Inc:


“Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to
be fashioned.” (¶ 80)
o  new standard of review of reasonableness simpliciter
Unreasonable vs patently unreasonable?
o Para 41… An unreasonable decision is one that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination. Accordingly, a court reviewing a
conclusion on the reasonableness standard must look to see whether any reasons support it.
The defect, if there is one, could presumably be in the evidentiary foundation itself or in the
logical process by which conclusions are sought to be drawn from it.
o 42 The difference between “unreasonable” and “patently unreasonable” lies in the immediacy
or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then
the tribunal’s decision is patently unreasonable. But if it takes some significant searching or
testing to find the defect, then the decision is unreasonable but not patently unreasonable. As
Cory J. observed. … [i]n the OED, ‘patently’, an adverb, is defined as ‘openly, evidently, clearly’.
Standard of Review Buckets (not spectrum), 1997-2008:
Pushpanathan v Canada (Minister of Citizenship & Immigration) (SCC 1998):

Established a 4 part test for determining standard of review
o 1) Presence/absence of a privative clause
 Full vs partial or equivocal
o 2) Expertise: the most important factor
 Relative to courts – 3 step test
o 3) Purpose of Act & particular provision
 Polycentricity suggests deference
o 4) The nature of the problem
 Question of law? Question of “general” law?
Standard of review as applied: Overlapping buckets
Pragmatic & Functional Approach:
 Plurality of reasonable answers is nice
 More sophisticated contextual approach to statutory interpretation
 Shift from looking for privative clause to looking at expertise maybe makes more sense
 Assess/value the admin agency in its own right: breadth of powers, different functions, appointments
 But unpredictable, complex, and frustrating
Patent Unreasonableness as a Problematic Standard:
 1. Why does it matter if a defect is or is not immediately obvious?
 2. If you have to search to find the defect, does that mean it must be a less severe defect?
 3. When is it ok for courts to let unreasonable decisions stand, so long as they’re not patently
unreasonable?
 4. Do we really need this super complex 4-part test from Pushpanathan to determine SoR?
Questions Arising:
 Macklin @ 317 says the 4 Pushpanathan factors really come down to 2: legislative intent (privative
clause) versus expertise



Why is expertise more important than presence of privative clause?
Why are privative clauses never enough to keep courts out completely? Is Crevier right?
What counts as “expertise”? How broad is expertise? Individual or collective expertise?
Dunsmuir v New Brunswick (2008):





1. Procedural fairness and non-unionized public servants
2. The new standards of review: a principled framework that is more coherent and workable
The Issue:
o “At pleasure” statutory office holder AND contractual employee (hybrid)
 Officially he was dismissed not for cause = no admin law procedural fairness.
 If employer dismisses with cause, employee has alternative of grieving under Public
Service Labour Relations Act = entitled to admin law procedural fairness
o Does PSLRA-appointed adjudicator have jurisdiction to look behind official reasons for
Dunsmuir’s termination?
SCC splits (3 concurring sets of reasons):
Standard of Review:
o Majority (Bastarache & LeBel) make 3 major changes:
 1) Move from 3 SoR to 2:
 1. Reasonableness looks for:
o “the existence of justification, transparency and intelligibility within the
decision-making process”
o “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.”
o Why reasonableness? Values underlying:
 Deference: “respectful attention to the reasons offered or which
could be offered in support of a decision”
 Margin of appreciation for different answers
 “Justification, transparency, intelligibility”
 Respect legislative choice, expertise, different constitutional roles
o When does reasonableness apply?
 Privative clause = “strong indication” of reasonableness review
 Nature of Q: fact, intertwined mixed fact/law, discretion, policy
 Decisionmaker interpreting own or connected statute, or
particular expertise / regulatory function
 Presence of (a) privative clause, (b) distinct & special admin
regime, (c) nature of question of law.
 2. Correctness: there’s one right answer (says the court) & agency has to get it
o Why correctness? Values underlying:
 Consistency, uniformity, predictability, stability
 There is a right answer, & rightness matter
 Judicial expertise
 No deference to other reasoning
 Rule of law & unique role of the courts
o When does correctness apply?
 Qs of “general law” of “central importance to the legal system and
outside the adjudicator’s specialized area of expertise”
 Constitutional questions regarding division of powers & “other
constitutional Qs”



Jurisdictional questions or “true questions of vires” including
jurisdiction as between tribunals
 2) 2 Step SoR Process: Respect JR Precedent Before Doing SoR Analysis Again
 2 Step Process: Respect for JR Precedent
o “An exhaustive analysis is not required in every case to determine the
proper standard of review.”
o …the first step in conducting a standard of review analysis is to “ascertain
whether the jurisprudence has already determined in a satisfactory
manner the degree of [deference] to be accorded with regard to a
particular category of question.”
o [this was an unworkable idea & DIED – as Binnie J predicted – put it in
mental trash bin]
 3) Move away from language of pragmatic and functional analysis
Application to Dunsmuir’s Situation:
o Q: Does adjudicator have jurisdiction to inquire into whether Dunsmuir was fired for cause?
 Question of law
 Privative clause: full
 Nature of the regime: labour
 Interpreting enabling statute: relative interpretive expertise on “home turf”
 Legal question not of central importance to the system
o ∴ REASONABLENESS standard. Not reasonable.
Separate Reasons: Binnie & Deschamps
o Binnie J:
 Agrees on move to 2 standards & on outcome
 Worries what a “suitable precedent” might be
 “Reasonableness” will turn into a too-big tent
 Wonders why not create presumptions re SoR
o Deschamps:
 Agrees on move to 2 standards, not on outcome (should be correctness)
 Admin shouldn’t be so much more complex than normal appeals. Nature of the question
is key.
Alberta v Alberta Teachers’ Association (2011 SCC):




“Implied” reasons: what are “reasons which could be offered” when issue was never raised before
tribunal?
Another case with 3 concurring but irreconcilable sets of reasons. Rothstein J for the majority (not incl.
Binnie, Deschamps, Cromwell JJ)
Reasonableness & reasons:
o Deference per Dunsmuir = “respectful attention to the reasons offered or which could be offered
in support of a decision”
 So, what reasons “could be offered” if the issue wasn’t actually even raised at first
instance?!
 Apparently, courts get to make them up.
Is jurisdiction dead?
o Per majority: “experience has shown that the category of true questions of jurisdiction is
narrow indeed. Since Dunsmuir, this Court has not identified a single true question of
jurisdiction. … it may be that the time has come to reconsider whether, for purposes of judicial
review, the category of true questions of jurisdiction exists and is necessary to identifying the
appropriate standard of review.”
Newfoundland & Labrador Nurses’ Union v Newfoundland & Labrador (Treasury Board) (SCC 2011):




More tricky questions about reasons
Q: how to deal with reasons that are “less than comprehensive” in analysis?
Were these reasons reasonable?
o Adjudicator’s decision (12 pages) covers:
 Relevant facts
 Parties’ arguments
 Collective agreement provisions, interpretive principles
o But per Trial Judge, adjudicator’s analysis was “completely unsupported by any chain of
reasoning that could be considered reasonable”
Abella for the Court:
o Reasons that “could be offered” in support -??
o Reasonableness review an “organic exercise” – read process & outcome together
o Reasons don’t need to be completely comprehensive
 Understand why tribunal made its decision, whether outcome is within range of
reasonable outcomes?
o No reasons versus questionable reasons
 = Proc F versus reasonableness review
 (distinction kind of falling apart here)
Edmonton v Edmonton East Shopping Centres (2016):









1. Statutory rights of appeal and questions of general law
2. Presumption of deference, room for correctness review
3. (Relative) expertise
4. Court splits, again, this time 5/4
Facts:
o Shopping centre value assessed @ $31M for city tax purposes
o Owner disputes @ Assessment Review Board, says value should be $22M
o City requests Board to increase to $45M
o Board increases assessment to $41M. Can they do that?
Statutory right of appeal – what is the standard of review for Board’s decision?
Statutory Provisions: Alberta’s Municipal Government Act
o 470 (1) An appeal lies to the Court of Queen’s Bench on a question of law or jurisdiction with
respect to a decision of an assessment review board.
o (5) On hearing the application … the judge may grant permission to appeal if the judge is of the
opinion that the appeal involves a question of law or jurisdiction of sufficient importance to
merit an appeal and has a reasonable chance of success.
o What’s the Standard of Review??
Karakatsanis for Majority:
o Presumption of reasonableness b/c Board interpreting its own statute
o Correctness SoR = limited to categories listed in Dunsmuir.
o Expertise is contextual, Board was expert
o ∴ SoR = reasonableness
o Decision was reasonable
Cote & Brown for Dissent:
o
o
o
o
o
o
Fixation on Dunsmuir categories is bad
Statutory right of appeal rebuts presumption of deference
Limited right of appeal = demonstrates legislative intent that some findings need to be correct
Agencies can be experts in some things, not others
∴ SoR = correctness
Decision was not correct
Knotty Issues & Touchstones Revisited:
 To Defer, or not to defer?  Jurisdiction (Pre-CUPE) (Don’t defer)  Privative Clauses (CUPE)
Legislative Intent (Bibeault)  Expertise (Pezim, Southam)  Workability (Dunsmuir) (fail) Rule of
Law (Vavilov) (loops back around) To defer, or not to defer?
o How to handle poor reasons?
 Alberta Teachers, Newfoundland Nurses
o How to handle statutory rights of appeal?
 Edmonton East
Review: Things We Know:
 Standard of review for appeal from trial courts is different from SoR from tribunals on JR
 We know what SoR is for appeal from trial courts (correctness)
 SoR is a 2-step:
o 1) determine SoR, then
o 2) apply it
 There is no such thing as a privative clause strong enough to keep courts out (Crevier)
 The Pyramid of Power is a thing
 That Legislation trumps common law
 That courts sometimes use their common law power to interpret legislation in
bold/aggressive/unintended ways
 That courts used to be all about aggressively policing jurisdiction until Dickson J told them to stop
(CUPE)
 There were the “bad old days” when courts disrespected tribunals/agencies a lot.
 Then there were two standards (CUPE) because deference mattered where there was a privative clause
 Then there were three standards (Southam et al.) because expertise mattered most
 Then there were two again but not the same two as before (Dunsmuir) because “patent unreasonable”
was patently unreasonable
 That the SCC has developed a new leading test pretty much every 10 years in an effort to “simplify”
 That we are working our way to Vavilov, which is the latest attempt
 That after Vavilov there are still two standards of review, labelled correctness, and reasonableness,
though meanings have shifted a bit during flight
 That lots of hard questions haven’t been resolved, though we hope Vavilov will last a bit
 Expertise
o We can’t agree on what it is
 Presumption of deference
o Default SoR is reasonableness, except when it isn’t
 Jurisdiction / true Q of vires
o Still avoiding it, sounds too much like the bad old days
 Statutory rights of appeal
o Are they different from regular JR in terms of SoR?
 Reasons …?

o Cases have jumped the shark
Applying the SoR
o Is SoR actually fake, meaningless, a mug’s game?
VAVILOV I: APPLYING “REASONABLENESS”
SoR – 2 STEPS:
 Determine what the SoR is
 Apply it (was this particular tribunal decision “correct” or “reasonable”?)
Vavilov Reasonableness:
 Default standard of review except for defined categories where correctness applies
 More robust than it was pre-Vavilov
 Performing reasonableness review
o Majority at para 73-138
o Concurring decision at para 284-313
o Additional discussion at para 328-339
Performing Reasonableness Review per Majority:
 Relationship: procedural fairness and substantive review
 Reasonableness = process & outcomes
 Reasonableness = single standard that accounts for context
 Read formal reasons with regard to admin record and admin setting
 Reasonableness = logical and justified with regard to facts and law
Performing Reasonableness Review:
Relationship: procedural fairness and substantive review:



When reasons are required as a matter of Proc F, “they are the primary mechanism by which admin
decision makers show that their decisions are reasonable … the provision of reasons for an admin
decision may have implications for its legitimacy, including in terms both of whether it is procedurally
fair and of whether it is substantively reasonable.” ¶81
Reasons for reasons incl. showing justice to have been done, improving decision making, facilitating JR
Abella & Karakatsanis Agree
Reasonableness = process & outcomes:




“Put [the admin decision maker’s] reasons first” (Abella & Kara Agree)
Don’t mentally build “range of reasonable outcomes,” decide what would be correct: that’s not
respectful attention (Abella & Kara Agree)
“An otherwise reasonable outcome cannot stand if it was reached on an improper basis” & vice versa
¶86
“It is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are
required, the decision must also be justified, by way of those reasons” ¶86
Reasonableness = Single Standard that Accounts for Context:


Don’t vary degree of scrutiny based on what kind of admin decision maker you’re dealing with (Agree)
“What is reasonable in a given situation will always depend on the constraints imposed by the legal and
factual context of the particular decision under review” ¶90 (Agree)
Read Formal Reasons with Regard to Admin Record & Admin Setting:




Standard is not perfection / what judge would write (Agree)
Show respectful attention to “demonstrated experience and expertise”
Read reasons in light of history & context of proceedings: might explain gaps. BUT (Agree)
Don’t make up reasons to save an admin decision that isn’t “justified, intelligible, and transparent, not
in the abstract, to the individuals subject to it” ¶95
Reasonableness = Logical & Justified with Regard to Facts & Law:


Burden on party challenging decision to show there are non-minimal, sufficiently central problems with
it (Agree)
2 types of fundamental flaws but you don’t have to categorize them
o 1. Internally coherent reasoning is lacking
o 2. Decision not justified in terms of legal & factual constraints ( 7 sub-parts):
 a) The governing statutory scheme: broad discretion or narrow powers? Does it say how
decisions have to be made? Was this intra vires? i.e., read the enabling statute
 b) Other relevant statutory or common law: explain any departures from binding
precedent, also (in some contexts) international law / obligations
 c) The principles of statutory interpretation: not de novo review but “text, context, and
purpose”.
 d) The evidence and facts: don’t reweigh evidence if admin decision maker considered it
 e) The submissions of the parties: did they grapple?
 f) Admin body’s past practices & decisions: justify departures from longstanding
practice/policy
 g) The potential impact of the decision on the individual to whom it applies: is impact
severe or harsh?
 These elements are not a checklist (@ 106)
Performing Reasonableness Review Per Abella:
 Abella & Karakatsanis
o “[T]he majority revives the kind of search for errors that dominated the pre-CUPE era.”
o “The majority’s reasons are an encomium for correctness and a eulogy for deference”
 Majority’s eulogy for deference per Abella:
o @ 284-285 “We fear, however, that the majority’s multi-factored, open-ended list of
‘constraints’ on administrative decision making will encourage reviewing courts to dissect
administrative reasons in a ‘line-by-line treasure hunt for error.’ These ‘constraints may function
in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an
administrative decision …
o @ 284-285 “Structuring reasonableness review in this fashion effectively imposes on
administrative decision makers a higher standard of justification than that applied to trial
judges.”
o @ 207 “[T]here are many cases where, although the tribunal had jurisdiction to enter on the
inquiry, it has done or failed to do something in the course of the inquiry which is of such a
nature that its decision is a nullity. … It may in perfect good faith have misconstrued the
provisions giving it power to act so that it failed to deal with the question remitted to it and
decided some question which was not remitted to it. It may have refused to take into account
something which it was required to take into account. Or it may have based its decision on some



matter which, under the provisions setting it up, it had no right to take into account. I do not
intend this list to be exhaustive.”
Thumbs down for statutory interpretations per Abella:
o “By imposing their own interpretation of a statutory provision, courts undermine legislative
intent to confide a mandate to the decision-maker. Applying a statute will almost always require
some interpretation …. The decision-maker who applies the statute has primary responsibility
for interpreting the provisions in order to carry out their mandate effectively.” (@ 308)
A separate problem?
o Comparing to Bibeault (@214)
 “the Bibeault test directed reviewing courts to consider the wording of the enactment
conferring jurisdiction on the administrative body, the purpose of the statute creating
the tribunal, the reason for the tribunal’s existence, the area of expertise of its
members, and the nature of the question the tribunal had to decide — all to determine
whether the legislator ‘intend[ed] the question to be within the jurisdiction conferred on
the tribunal’”
What deference requires per Abella:
o 1. Deference is an attitude of the court
o 2. Deference affects how the court frames the question it must answer in JR (Agree – majority
agrees)
 Don’t look for a right or best answer
o 3. Deference affects how a court sees challenges to admin decision making (Agree – majority
agrees)
 Burden of showing unreasonableness on the challenger
 Reasonableness cannot be reduced to a formula or a checklist of factors
 Reasons should be approached generously on their own terms

VAVILOV II: SELECTING THE SOR
Default SoR is reasonableness unless you fall into a specific/defined categories then the standard is correctness
Vavilov SoR:
 Default standard of review = reasonableness except for defined categories where correctness applied
 Determining SoR
1. Majority @ 16-72
2. Concurring @ 199-253
3. Additional discussion @ 339-350
SoR per Majority in Vavilov:
 A revised framework for determining SoR=
1. Whenever a court reviews an admin decision it should start with the presumption that the
applicable standard of review for all aspects of that decision will be reasonableness
2. General rule of reasonableness review when coupled with these limited exceptions, offer a
comprehensive approach to determining the applicable SoR – as a result it’s no longer
necessary for courts to engage in a contextual inquiry
Why Reasonableness for Majority? Para 23-32





Pragmatism: “where a legislature has created an administrative decision maker for the specific purpose
of administering a statutory scheme, it must be presumed that the legislature also intended that
decision maker to be able to fulfill its mandate
Legislative intent: Respect for the “institutional design choices made by the legislature” requires
posture of restraint on the part of courts.
NOT because of relative expertise of admin decisionmakers!
“it is the very fact that the legislature has chosen to delegate authority which justifies a default position
of reasonableness review.” ¶ 30
“We wish to emphasize that because these reasons adopt a presumption of reasonableness as the
starting point, expertise is no longer relevant to a determination of the standard of review as it was in
the contextual analysis.”
 Still relevant at step 2 in determining whether standard of reasonableness was met
 Abella & Karakatsanis disagree with this point
Majority: Categories where Presumption is Rebutted:
 Where SoR = correctness
1. “The presumption of reasonableness review discussed above is intended to give effect to the
legislature’s choice to leave certain matters with administrative decision makers rather than the
courts. It follows that this presumption will be rebutted where a legislature has indicated that a
different standard should apply. The legislature can do so in two ways. …” @ ¶ 33
2. 2. “respect for the rule of law requires courts to apply the standard of correctness for certain
types of legal questions …” @ ¶ 53
Category #1 Where Presumption is Rebutted (Majority)
 Legislative intent @ 33-52
1. Legislated standard of review (e.g., BC ATA) ~ Agree
2. Statutory right of appeal ~ Disagree
 Court as part of enforcement machinery
 Apply normal appellate standards of review
 Reasons to depart from courts recent jurisprudence: coherence, conceptual balance,
values of certainty and correctness
Majority: Statutory Rights of Appeal
 Privative clauses now irrelevant because presumptive SoR = reasonableness
 Use appellate SoR not JR SoR @ 37-52
Why Statutory Appeals Matter & Privative Clauses Don’t:
 @49: “legislative intent can only be given effect in this framework if statutory appeal mechanisms, as
clear signals of legislative intent with respect to the applicable standard of review, are given effect
through the application of appellate standards by reviewing courts.
 Conversely, in such a framework that is based on a presumption of reasonableness review, contextual
factors that courts once looked to as signalling deferential review, such as privative clauses, serve no
independent or additional function in identifying the standard of review.”
Category #2: RoL Requires Correctness Review @ 53-64 (Majority)
 3. Constitutional questions
o Division of powers between parliament and provinces
o Relationship between legislature and other branches


o Scope of Aboriginal and treaty rights per s.35
o Other constitutional matters
4. Questions of general importance to the system as a whole ~ Disagree
o Examples @ 59-60
o NOT the stupe @ 61
5. Admin bodies jurisdictional boundaries
Majority: Thing We’re Getting Rid of:
 Expertise in figuring out SoR ~ Disagree
 Privative clauses as relevant to anything ~ Disagree
 The contextual approach ~ Agree (mostly)
 Jurisdiction as freestanding category of correctness review ~ Agree
o New, more robust reasonableness review is adequate
 NOT really open to more categories of correctness review
VAVILOV: Abella & Karakatsanis Concurring
 Fundamentally different conception of modern admin state, why legislatures have entrusted some
matters to specialized decision makers
 Majority is being “textualist,” thinly veiled critique comparing them to “originalists” in the US
 @ ¶ 254: “But the aspect of the majority’s decision with the greatest potential to undermine both the
integrity of this Court’s decisions, and public confidence in the stability of the law, is its disregard for
precedent and stare decisis.”
SOR, Deference & Precedent per Abella & Karakatsanis:
 “Regrettably, … [p]resented with an opportunity to steady the ship, the majority instead dramatically
reverses course — away from this generation’s deferential approach and back towards a prior
generation’s more intrusive one. … instead of reforming this generation’s evolutionary approach to
administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this
Court has spent decades dismantling.” - @ 198-199
Abella & Karakatsanis on Statutory Rights of Appeal:
 “Rather than confirming a meaningful presumption of deference for administrative decision-makers, as
our common law has increasingly done for decades, the majority’s reasons strip away deference from
hundreds of administrative actors subject to statutory rights of appeal …” - @ 199
 Other purposes served by appeal clauses
 Textual literalism & legislatures’ behaviour since
 Privative clauses should then matter too
 Practical effects & “stampede of litigation”
Abella & Karakatsanis on Expertise:
 @ 199 “ … rather than following the consistent path of this Court’s jurisprudence in understanding
legislative intent as being the intention to leave legal questions within their mandate to specialized
decision-makers with expertise, the majority removes expertise from the equation entirely and
reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes
…”
 @ ¶ 230: “The majority’s framework rests on a flawed and incomplete conceptual account of judicial
review, one that unjustifiably ignores the specialized expertise of administrative decision-makers.
Although the majority uses language endorsing a ‘presumption of reasonableness review’, this
presumption now rests on a totally new understanding of legislative intent and the rule of law. … the
majority reads out the foundations of the modern understanding of legislative intent in administrative
law.”
Abella & Karakatsanis on The Modern Rule of Law: (@241-243)
 “The rule of law is not the rule of courts. A pluralist conception of the rule of law recognizes that courts
are not the exclusive guardians of law, and that others in the justice arena have shared responsibility
for its development, including administrative decision-makers. …
 “when a narrow conception of the ‘rule of law’ is invoked to impose judicial hegemony over
administrative decision-makers [it] perverts the purpose of establishing a parallel system of
administrative justice and adds unnecessary expense and complexity for the public.”
Vavilov Majority Says:
SOCAN v Entertainment Software (2022) (SCC):
 Re Copyright Board’s interpretation of Copyright Act re when artist gets paid for streamed /
downloaded content – one royalty or two?
 Board & courts have concurrent jurisdiction over parts of Copyright Act ∴ new SIXTH category of
correctness review per majority!
 Karakatsanis & Martin JJ concurring: no new correctness category. This isn’t “rare & exceptional case,”
per Vavilov. But SoR = reasonableness & Board’s decision was not reasonable.

Why Reasonableness for Majority?
 Legislative intent – respect for the institutional design choices made by the legislature
o Tribunal created under enabling statue and courts should respect the fact that they can make
these decisions
 Pragmatism
 The reason we are deferring is in respect of legislative intent
o Not just about expertise but also possibility of other compelling rationales (proximity to
stakeholders, streamline procedures, etc.,)
THE CHARTER & SUBSTANTIVE REVIEW:
3 Places You’ll Run into the Charter in Admin Law:
 @ tribunal regarding remedies
o Charter s.24(1), s.52(1)
o Martin
o Conway
o BC Civil Liberties
 Judicial review for procedural fairness
o Charter s.7 principles of fundamental justice
o Suresh
o BC Civil Liberties
 Judicial Review for substantive review
o Charter rights generally, s.1
o Charter values
o Multani
o Dore
o Loyola
o TWU v LSBC
Remedies Recap: Charter @ Tribunal Level:
 Charter s.24(1) Anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances
 Charter s.52(1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect
 Q1: Can admin agencies interpret the Charter?
 Q2: if so, what remedial powers do they have?
Nova Scotia (WCB) v Martin (2003):
 Can tribunal consider questions of law? If so:
o Any evidence of contrary legislative intent (i.e., no Charter for this agency?) Burden on party
challenging it looking at either:
 Explicit withdrawal of authority to decide constitutional question – OR
 Clear implication in statutory scheme
o Agencies must apply the Charter if they have jurisdiction to
 Martin is 24(1)(first part) and 52(1)
R v Conway (SCC) (2010) follows Martin:
 Conway wants absolute discharge from mental health institution based on alleged Charter rights
violations
 Chan the ORB grant it?
o SCC analyzes Charter s.24(1) in 2 Q’s:
 Q1: is ORB a court of competent jurisdiction?
 Look at enabling statue to figure this out
 Q2: if so, does it have jurisdiction to grant the remedy sought?
 Look to enabling statue again to figure this out, understand what their remedial
provisions are and what their statutory purpose is
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Here, review board didn’t have jurisdiction because court looked at enabling statue and looked at the
purposes of the review board and one overriding purpose was to look after public safety so ordering an
absolute discharge for someone who is still a risk to society isn’t keeping with their statutory purpose
so cannot order this remedy but could have ordered others
Second part of s.24(1)
BC Civil Liberties v Canada (AG) (2019):
 Right to state funded legal counsel under Charter s.7 discussed as matter of procedural fairness – no
Charter remedy
 Right to independent decision maker under Charter s.7 unconscious institutional bias = struck down per
Charter s.52(1)
 On procedural fairness as enacted (beyond statute regarding entitlement to counsel @ segregation
hearings:
o Charter s.24(1) not available to public interest litigants like BCCLA and
o Neither Charter s.24(1) nor s,52(1) grant jurisdiction a court doesn’t otherwise have so
o Still an essential role for admin law remedies: declaratory relief works even in Charter cases
 Inmates have a right to state funded legal counsel at segregation hearings and also there is unconscious
bias because no one independent is reviewing the decisions?
 Individual remedy
 Didn’t have a s.24 remedy available to them because not independent remedy? Also couldn’t use
s.52(1) because it was a policy or discretionary decision made so they couldn’t bring an action to strike
down since there was nothing to strike down because it was just a combination of different policies
there was no provision to strike down
Procedural Fairness Recap: Charter on Judicial Review:
 Suresh incorporates common law procedural fairness framework into Charter s.7 principles of
fundamental justice
o S.7 principles require at a minimum, compliance with duty of fairness principles
o Common law principles are not constitutionalized but inform content of s.7 principles
o Use Baker 5-part test
o If principles of fundamental justice (PoFJ) infringed, go to s.1 Oakes test
 Other examples we discussed regarding s.7 PoFJ:
o Singh regarding oral hearings and reasons, challenging the statue itself
o Suresh regarding duty to disclose, challenging how a broad statue was applied by Minister
 Was about how the Minister exercising that discretion
o BC Civil Liberties regarding right to independent decision maker, right to counsel – first
challenge to statue, second to application
 Was a challenge to the statue that is why s.52 remedy was available because challenge
to the statue itself
o Abrametz regarding delay i.e., challenge to application
 Was delay and when delay raises to the level of abuse of process
 Not about the statue itself
o Charkaoui regarding ex parte hearings, challenging application not statue
 There is a minimum amount of disclosure that has to be given
 About the application of the statue
The Charter & Admin Law: Substantive Review
 How is Charter review of decisions conducted, and how does it differ from normal JR in admin law?
o Do both Charter & admin approaches apply? If so, which do you do first?
o Does only one apply? If so, which one?
o Distinguish between statue and application?
Charter Based Approach:
 On other issues, still a role for admin law
 Where Charter & admin law apply, analyze using Charter s.1
o Oakes test = more structured, sophisticated
o Incorporates social values
 Admin law shouldn’t impose more onerous test than Charter s.1
o Advantages/disadvantages?
Mixed Approaches:
 Step 1: admin law
o Standard of review = reasonableness?
o Unreasonable exercise of discretion?
o Are admin law principles adequate?
 Step 2: Charter
o 2-step analysis looking at either statue or acts taken under discretion: right, then s.1
 Advantages/disadvantages?
The Admin Law Approach(es):
 Se admin law (standard of review) principles only
 Endorsing this approach:
o Multani
o Trinity Western University
 Advantages/disadvantages?
Breakdown of Approaches before Dore: SoR vs Charter
 Charter approach (Charron J in Multani)
 Mixed Approach
 Admin law Approach (Deschamps & Abella JJ in Multani)
Multani v Commission scolaire Marguerite-Bourgeoys (SCC) (2006):
 Charron J for majority articulates/consolidates Charter based approach
 Deschamps & Abella JJ (concurring) use admin approach
 Facts:
o Multani drops Kirpan in school yard
o M-B School Board = reasonable accommodation means sewing kirpan into clothes – Multani
agrees
o School’s Governing Board refuses to ratify
o M-B Council for Commissioners upholds decisions of School’s Governing Board
o Charter review: religious freedom, equality
o About a kid that was Orthodox Sikh and religious thing to carry kirpan (dagger) and his dagger
fell out accidentally one day
o School said it is reasonable accommodation if you sew your kirpan to your clothes
o Then the school council said it’s not reasonable accommodation – cannot have kirpan on you
because it’s basically a weapon
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o Clear religious freedom argument here
The Charter Based Approach (Charron) (Majority):
o Focus in this case is Charter right, not jurisdiction or School Board’s interpretation of the Charter
 Even if admin law applied, SoR = correctness not reasonableness
o If Charter rights at stake, use Charter analysis
 Constitutional law standards should not be dissolved into admin law standards, (which
are lower? More forgiving?)
 Applies to statue and delegated decisions
o Council decision violated s.2(b), not saved by s.1
o Issue is the Charter right is the most important thing here (freedom of religion) so for that
reason that SoR has to be correctness and use a Charter analysis
The Admin Law Approach (Deschamps & Abella) (Concurring):
o Decisions and orders =/= regles de droit
 Use Charter to challenge statue itself
o Regarding decisions and orders, must maintain admin law analytic approach, avoid blur
 S.1 analysis was designed for policy analysis not admin
 Admin law principles are just as demanding, better fit to admin issues
o Reasonableness standard: Council’s decision not reasonable
o If you’re talking about delegated decision making, then you have to use a plain admin law
argument no charter
o Said the SoR is reasonableness and the Council’s decision was not reasonable
Dore v Barreau du Quebec (SCC) (2012):
 Lawyer disciplined for writing intemperate letter to judge (also reprimanded)
 How to review an admin law/Charter rights question? Admin law SoR or Charter Oakes Test?
 What is challenged before SCC?
o Not constitutionality of statue – if it was the constitutionality of the statue then would just treat
as constitutional case not admin at all
 How to do it if challenged before courts?
 How to do if challenged and dealt with before admin tribunal? What would SoR be?
o Not length of suspension
o Constitutionality of Barreau decision itself
 Admin act vs statutory provisions
 Discretionary act
 Does presence of a Charter issue take you out of normal JR SoR (& reasonableness
review)?
 Adjudicated admin decisions =/= statute that could be justified by the state under Oakes
 Para 4: while a formulaic application of the Oakes test may not be workable in the context of an
adjudicated decision, distilling its essence works the same justificatory muscles: balance and
proportionality
 A “richer conception of admin law”
 Para 43: There is no doubt that when a tribunal is determining the constitutionality of a law, the
standard of review is correctness. It is not at all clear to me, however ... that correctness should be
used to determine whether an administrative decision-maker has taken sufficient account of Charter
values in making a discretionary decision
 Reasonableness because
o Disciplinary panel precedent
o Home statue (pre-Vavilov)
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o Expertise regarding application (pre-Vavilov)
How to apply Charter values in the exercise of statutory discretion? Oakes breaks down to:
o Prescribed by law N/A
o Pressing & substantial objective N/A
o Balance & proportionality =
 1. Consider and define statutory objectives
 2. Ask how charter value at issue is best protected in view of statutory objectives
Admin act that disproportionately impairs Charter values = unreasonable decision
Charter values vs. Charter rights
Application to Case:
o Constitutionality of statue not at issue
 Code of ethics: conduct of an advocate must bear the stamp of objectivity, moderation,
and dignity
o In application: disciplinary bodies must demonstrate that they have given due regard to the
importance of the expressive rights at issue (both individual and public)
 Fact dependent and discretionary exercise
 Reviewed disciplinary council’s reasons
 Here, balance of expressive rights & statutory objectives = reasonable
Loyola High School v Quebec (AG) (SCC) (2015):
 Catholic religious teaching in high school in contravention of mandatory impartial religion/ethics
education policy
 Minister denied school exemption application, Catholic teaching not “equivalent”
 Court splits 4/3
 Unanimous on results but…
o Majority: Minister’s decision requiring that all aspects of teaching be taught neutrally limited
freedom of religion more than necessary given statutory objectives
 Using Dore: reasonableness requires proportionality, this was not proportionate
o Minority: pure Charter analysis, s.24(1) crafts its own remedy rather than remitting to Minister
 No reference to Dore, no mandamus
Trinity Western U v BC Law Society (SCC) (2018):
 Accreditation for private post-secondary institution with community covenant prohibiting nonheterosexual sexual intimacy in or out of marriage
 Balancing Charter rights in context of admin decision
 Inconsistent results on reasonableness SoR in Ontario, BC, Nova Scotia = goes to SCC
 Facts:
o TWU applies for accreditation, gets prelim approval from Federation of Law Societies
o Motion not to accredit @ LSBC Benchers fails
o Referendum of members, against accreditation
o LSBC Benchers consider whether to bind themselves with a new referendum – decide to
o New referendum notion not to accredit succeeds, LSBC adopts motion
 Did LSBC have statutory authority not to accredit based on community covenant?
o Yes
 Was the referendum an ok decision making strategy?
o Yes
 Were Charter s.2(a) rights infringed?
o Yes
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o Sincere practice or belief connected to religion, which state conduct interferes with in more
than trivial way
o Found: TWU community has sincere belief in studying in religious environment with particular
rules
o Denying accreditation for law school = limiting TWO community’s ability to study law in
environment defined by their religious beliefs
Was infringement proportionate?
o Yes
o Duty to uphold and protect the public interest vs. Charter s.2(a) rights
o Dore & Loyola are binding precedents so use robust proportionality analysis: does decision
reflect proportionate balancing of Charter protections and relevant statutory mandate?
Recall Vavilov on when RoL requires Correctness Review:
 Constitutional question
o Division of powers between parliament and provinces
o Relationship between legislature and other branches
o Scope of Aboriginal & treaty rights per.s35
o Other constitutional matters
 Questions of general importance to the system as a whole
o Examples at para 59-60
o Not the stuff at para 61
 Admin bodies jurisdictional boundaries
 Vavilov declines to overrule Dore
o Para 57
 “a reconsideration of Doré is not germane to the issues in this appeal. However, it is
important to draw a distinction between cases in which it is alleged that the effect of the
administrative decision being reviewed is to unjustifiably limit rights under the Charter
(as was the case in Doré) and those in which the issue on review is whether a provision
of the decision maker’s enabling statute violates the Charter (see, e.g., Martin). Our
jurisprudence holds that an administrative decision maker’s interpretation of the latter
issue should be reviewed for correctness, and that jurisprudence is not displaced by
these reasons
Pitter v College of Nurses (ON) (2022):
 Facts:
 Grapple with the charter right (in this case freedom of speech) of vs the statutory objective (to
maintain the regulation of nurses, ensuring that nurses are upholding public health)
 Look at enabling statue – maybe there is a purposes section
 Figure out how you can do your job without impairing the charter right or value more than you have to
o Having them do remedial education didn’t impair their charter right more than necessary
Facts
Issue
Decision
Analysis
Ratio
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