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Administrative Law with Sossin and Wright (2014)
Admin Law Context… I
ROL & Separation of Powers… 1
Types of Administrative Decision Makers… 1
ROL… 1
Roncarelli… 1
Rizzo… 1
Slaight Communications… 1
Insite… 1
Tension between ROL (JR) + democracy (parliament supremacy)… 1
Dicey on ROL… 2
Fuller + Raz on ROL… 2
John Willis on ROL… 2
Ron Ellis on formalism… 3
Ocean Port on Tribunals being judicial and executive…11
Tribunal discretion violating procedural fairness and ROL (Consolidated Bathurst)… 12
Judicial Review + ROL… 13
Policy in Martin deems it good for tribunals to deal with Charter… 20
Procedural Fairness… 3
Sources of Law – What sources of law apply?... 3
Step 1: Is there a duty of fairness?... 11
Non-Leg (Common law) threshold… 3
Charter threshold… 4
Step 2: Determining the Degree of Fairness Owed (Baker) (Low, Medium, High)… 4
Nature of decision and process followed… 4
Nature of statutory scheme… 4
Importance of decision to individual… 4
Legitimate expectations… 4
Choice of Procedure… 5
Applying 5 factors to Baker… 5
Applying 5 Factors to Suresh… 6
Step 3: Reach Medium degree + state where each side would fall… 7
Step 4: Specific Components of Duty of Fairness… 7
Hearing (written or oral) … 7
Disclosure (full or summary)… 7
Closed Proceedings
In-House Legal Advice
Sufficient Reasons… 8
SSPA s. 17 duty to give reasons… 9
Notice… 9
Right to Cross Examine… 9
Consultation Among Agency Members… 10
Right to Counsel… 10
Step 5: Reasonable Apprehension of Bias… 10
2 branches of natural justice… 10
Test for RAB…10
National Energy Board… 10
2
Step 6: Outline Sources of Bias… 10
Connections… 10
Pinochet… 10
Newfoundland Telephone… 10
Wewaykum Indian Band… 11
Goodridge… 11
Prior stage involvement… 11
National Energy Board… 11
Interest in outcome… 11
Benedict v Ontario… 11
A&P… 11
Copied reasons… 11
Cojocaru… 11
Attitudinal bias… 11
Baker… 11
Newfoundland Telephone… 11
Paine… 11
Cengarle… 11
LSUC v Cucci… 11
Institutional reasons for finding RAB… 11
Regie… 11
Keen… 11
Step 7: Independence… 11
Test… 11
Valente… 11
Ocean Port… 11
Masquit… 11
Bell… 11
Tenure… 12
Influence… 12
Substantive Review / Standard of Review… 13
Step 0: Stare decisis… 13
Determining the appropriate standard of review?... 13
Step 1: Nature of the question/decision… 13
Mixed fact and law… 13
Discretionary…13
Policy/ Polycentric… 14
Fact… 14
Law… 14
Step 2: Presence or absence of a privative clause… 14
Weigh heavily for deference… 14
Full… 15
Weak… 15
Modern… 15
Statutory Right to Appeal… 15
Step 3: Purpose of the statute and the regulatory scheme… 15
Step 4: What is the expertise of the decision maker relative to the court?... 15
Step 5: Decide on Standard… 16
Reasonableness… 16
Correctness… 16
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Applying the SOR… 16
Step 7: Apply reasonableness SOR?... 16
Fall within range of reasonable outcomes… 16
Privative clause… 16
Expertise/specialization of SM… 17
Purpose of Statute as a Whole… 17
Nature of Problem in Question… 17
Previous decisions… 17
Remedial Powers… 17
Decision unreasonable if… 17
Ulterior motives/bad faith… 17
Considering irrelevant factors or not considering relevant factors… 17
Arbitrariness… 17
Fettering Discretion… 18
Violate the Charter… 18
Acting under dictation or influence wrongful delegation of powers…18
Remedies… 18
Step 8: Apply Correctness Standard?… 18
Standard of Review + Charter… 20
Step 1: Court to decide whether statute gave admin body the authority to determine
Constitution/Charter challenges… 20
Does statute provide authority (jurisdiction) (Martin, Cooper)… 20
Explicit jurisdiction… 20
Implicit jurisdiction… 20
If yes, does statute remove authority to decide constitutional issues… 20
Policy in Martin deems it good for tribunals to deal with Charter… 20
Step 2: If tribunal has legislative jurisdiction to decide constitutional issues, Court will
review on SOR of correctness… 21
Dore
Step 3: Determining if tribunal had jurisdiction to apply OHRC… 21
Step 4: When can tribunal grant Charter remedy?... 22
Public Inquiries and Investigations… 25
Types… 25
Policy inquiry
Investigative inquiry
Hybrid inquiries
Proceedings… 25
Duty to provide notice... 26
Alternatives to public inquiry… 26
Criminal trial
Political alternative
Standing… 27
Public interest standing… 27
Debate re: expansion of participatory rights in public law… 27
Relevant statutes… 28
Public Inquiries Act
Federal Courts Act
Statutory Powers Procedures Act
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Peter Carver – Accountability and Law of Public Inquiries… 28
Critiques of Inquiries… 29
Krever Commission (Canada Blood Services)… 29
Interests Threatened by Public Inquiries… 29
Constitutional Issues – Individuals Facing Criminal Charges… 29
Starr v Houlden
Phillips… 30
Reputational Interests… 30
Establishing an Inquiry… 30
Delegation of Authority
Appointing Commissioner
Terms of Ref… 31
Independence of Inquiries… 31
RAB… 31
Procedural Fairness.. 31
Duty of Fairness
Inquisitorial Process
Standing
Legal Representation… 32
Notice and Opportunity to Respond
Disclosure
Conducting Hearings in Public
Substantive Review… 32
Inquiry Commissions Interpretation of ToR…32
Findings and Recommendations… 32
Inquests… 33
Stephen Goudge… 33
Tribunals…34
General principles… 34
Remedial Powers of OHRC… 34
Tribunal Reform: OHRC…35
Wright – New Human Rights Code… 35
LSUC – Tribunal Reform… 37
Mandate of Law Society
The Solution
The Model
Baxter & Sossin – ON Admin Tribunal Clusters… 38
Social Justice Tribunal Cluster
Adjudicative Tribunals Accountability Governance and Appointments Act (ATAGA)… 38
Rationale for reforms
Tribunal Clustering… 39
Environment and Land Tribunals
Social Justice (SBT, HRTO, Special Ed)
Safety Licensing Appeals and Standard Tribunals
ON Tribunals Act
Why tribunal clusters… 40
Why tribunals cluster
When to cluster and the clusters currently in ON… 40
Tribunal Cluster Models… 41
Co-location
Institutionalizing the Charter
Amalgamation… 41
Components / Ideals behind clustering… 41
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Concerns in Tribunal World… 42
Aboriginal law... 42
Admin Law Context
Course structure
1. ROL & Separation of powers
2. Bias and independence
3. SOR
4. Inquiries
5. Discretion
6. Rules, Soft law
7. Tribunals
8. Tribunals, Constitution, HR
9. Access and Proportionality
10. Broader Perspectives
Types of Administrative Decision Makers
 Definitive difference from courts is policy goal, not purely adjudicative / unlike US barriers
 Superior courts with inherent jurisdiction are constitutionally required to possess objective guarantees of
both individual and institutional independence
3 Types of adjudicative decision makers have processes, which may look like a court:
(1) Adjudicative tribunals (established by statute)
o Set up explicitly by state which lays out its powers, its members, and other factors
(2) Adjudicative committees of statutory bodies
o Statutory bodies can set up their own internal administration
(3) Arbitrations (endorsed by statute) in administrative regime
o Can contract out of court process for arbitration (EX: labour) – maybe speed and confidentiality +
o Act endorses arbitration subject to particular limitations (EX: consumer disputes)
o Role of state comes into play in the enforcement stage to make sure parties not only sit down and
engage in arbitration, but that its results are followed through
Non-adjudicative decision makers:
 High level policy makers, investigations/enforcement staff, regulatory prosecution staff, municipal
councils, committees, independent agencies, private entities exercising administrative functions
 All actors are still subject to admin law and principles
5 Course Themes
1. The central principles in Canadian admin law (Fairness, SoR, Independence ad impartiality)
2. The lived experience of administrative justice in Canada; What actually happens?
3. Proportionality and access to justice in designing administrative processes
4. The theory of the separation of powers between the executive and judiciary and the rule of law
5. How theory and policy can assist lawyers in advising clients and advocating on their behalf
Judicial Review

Superior courts inherent judicial review under CL. Courts review decisions based on “statutory rights of
appeal”  if no stat right of appeal, can go to superior court so long as the statute has not been removed
Historical common law remedies to judicial review
 Certiorari: authority to produce decision-making record to the court. Upon reviewing the record, the court
can decide whether to annul the decision. This is the central remedy
 Prohibition: The court has the power to prohibit a decision maker from conduct or decision
 Mandamus: Superior court issued to lower court / gov to perform correctly (Ex: expedite by Min Blencoe)
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Habeas corpus: Someone can come before the court and say whether or not they have detained someone and why
(EX: Guantanamo Bay)
ROL and Separation of Powers
Exec decision-makers
 Fast, quick-acting, and have power to keep certain issues such as gov intelligence secret
 Can gather a large range of information from a wide array of sources
Leg decision-makers
 Can organize a set of rules that can be tracked back to individuals
PRO: representation, accountability
Judiciary decision-makers
 Appointed by gov and can track back their appointments. They are very systematic. Independent and, thus,
can make more objective decisions than DM whose term is dependent on voter support
PRO: independence, direct participation
ROL


“a fundamental postulate of our constitutional structure” (Roncarelli) that lies “at the root of our system of
gov” (Secession Reference)
Stat interpretation not founded on wording of leg alone. Words of an Act to be read in entire context &
grammatical/ordinary sense harmonious w/ scheme & object of Act & Parl intent (normative value,
purpose, logic of consequences of proposed interpretations (ie: longest serving EE least power) leg history,
leg debates (Rizzo (1998))
(1) Nobody is above the law;
 “ROL is maintained b/c courts have last word on jurisdiction and legislative supremacy is assured b/c
determining the applicable SOR is accomplished by estab legislative intent” (Dunsmuir)
 Ratio: We have seen since Roncarelli every public action has to find source in law, usually statute. So
Baker gives rise to public law remedy, Baker gets decision to be made again. Judiciary is best placed to
articulate legal limits because who else is going to police limits on executive decision-makers.
(2) Law should not be retroactive;
(3) Rules should not be set arbitrarily;
 Unconstitutional use of discretion even if statute exercised within scope still found to be in violation EX:
o Slaight Communications v Davidson: ER ordered to give positive reference for federal EE and
Court finds it’s violation of FOE)
o Insite: Min of Health deny license was arb in not furthering state obj & lacked connection to
statutory purposes b/c saved lives without undermining public safety
 We have seen since Roncarelli that every public action has to find source in law, usually statute. Baker
gives rise to public law remedy and decision is made again. Judiciary is best placed to articulate legal limits
because who else is going to police limits on executive decision-makers.
 At pleasure appointments allow gov to remove exec members not following orders (Keen)
(4) Should be transparency in the construction of rules
 Not same degree of structural independence as courts
 Must have const sep of powers btwn branches, fair processes, prioritize certain rights/protections
Tension between ROL (Judicial review) + democracy of parliamentary supremacy (Dunsmuir)
FOR ROL:
 Courts should always conduct judicial review regardless of what legislators say in privative clause.
Courts ultimately say we are guardians of ROL and if we respected leg’s privative clause the
legislature could do whatever they want. Courts don’t ignore them but don’t take them literally
 Judicial review is intimately connected with the preservation od the ROL (Dunsmuir)
 Guidelines have greatest impact but smallest accountability measures: need increased formality

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Exec +leg branches closely fused (Duplessis in Roncarelli could make laws arbitrary and suit him)
AGAINST ROL:
 Discretion personalizes the law!
 Thomas Cromwell: ROL reined in by courts not having monopoly on deciding all questions of law
 Guidelines animate trib dec making BUT usurp ROL to protect ppl, IRB guidelines on sex violence
 Increased formality removes policy importance
 Consolidated Bathurst: Little danger that full board mtg may fetter JI or present RAB
Dicey on ROL (19th century British constitutionalism) (Top down)


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admin bodies should be distrusted, inherently lawless, should be no deference for their decisions
judicial control on executive discretion and courts as guardians of common law
judicial intervention on sovereign parl based on courts as check on powers; courts ensure admin law not
overstepping leg intent; courts protect priv autonomy of affected indivs (K, tort, property)
1. Legal equality: Law is supreme
 No one above the law, everyone, incl gov, subject to “ordinary law”
 All come before the same courts and gov is party before the courts
i. CL superior to French special courts that hear cases betwn a citizen and gov
 Ex: HRTO hears HR cases against gov
Critique: People have special powers, responsibilities, and immunities. Equality should be strived for, but it
is naïve to state that everyone can be treated exactly the same; priv individual and pub state actors
2. Absences of arbitrary authority in gov
 HIS CONCERNS PLAYED OUT N LABOUR (courts anti-union so create specialized tribunals)
 Even though the law says that liquor license in Quebec was sole discretion of Minster, can’t be
arbitrary, must be exercised in good faith, pre-Charter (Roncarelli (1959) SCC)
 When statute gives power to exec, minster, tribunal it can’t be exercised arbitrarily
 Discretion is not untrammelled (Rand J in Roncarelli) VS
No restriction in statute, discretion is absolute (Cartwright in Roncarelli)
3. Relationship between state + inidiv to be regulated by law
 Courts protect indiv rights through development of common law
 Assume gov means has to be carried out in way that is fair to indivs and it’s role of courts to do
that as guardians of indiv rights w/ gov (Roncarelli)
Critique: limits of law in application to private bodies not constituted by Constitutional principles in theory
contradict the ROL / restrictive for rule-makers b/c legis should set out general rules with broad ambiguous
lang to allow decision-makers to apply rule to specific cases to evolve
Fuller and Raz on ROL: Bottom Up (Admin law looks more like what these 2 wanted)
 Lon Fuller: cooperative institutional enterprise among state actors and institutions, facilitate participations
w/ affected; reciprocity respecting autonomy with “inner morality”
 Joseph Raz: institutional design, give effect to stat purpose, law must guide behaviour of subjects, modern
gov needs competent & impartial staff
John Willis on ROL
 Need to balance ROL against complexity of modern gov; classical ROL doesn’t work in modern world
 Functionalist approach to post-war administrative state:
o ROL can protect from arbitrary state power without rigid rules or relying exc on courts
o Statutes may contain flexible standards that lay out broad boundaries of gov power
o Specialized tribunals may better protect individuals: more accessible and specialized knowledge
 Non-judicial tribunals have improved to be independent and impartial - appoint a set term
 Judicial review remains available
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PROCEDURAL FAIRNESS
Sources of Law – What sources of law apply?
 Statutes
 Statutory Powers Procedure Act (SPPA)
i. Codiy min attempt for procedural fairness.
ii. Subject to SPPA to extent that it doesn’t conflict w/ trib’s own rules or laws (ie: OHRC)
iii. Trumps other statutes, unless statute provides expressly to the contrary
 Parent statute of the decision maker or other statutes
i. Not just for deciding expertise, but for reading of language and effect
 Common law: gaps filled in by CL to decide standard of procedural fairness
 Charter
 Quasi-Constitutional Statutes
 Bill of Rights right to fair hearing (s. 7 Charter more substantive): Applies if no Charter
 Human Rights Code (Not as broad as the Bill)
 Subsidiary Instruments (By laws, rules, regulations, policy statements, guidelines)
Ron Ellis
 once rights involved need progressive formalism where all rights should include a full degree of fairness,
including appointments for life to prevent gov interference in independence of DM.
Step 1: Threshold – Is there a duty of fairness? (1 para)
It is clear that a duty of fairness applies to the decision
This is an administrative law decision (Inuit) that is not a purely a legislative decision as in (Authorson)
Does decision fall into exceptional category where duty of fairness does not apply? Even if yes, could argue that
legit expectation created a duty of fairness in a situation where a duty might not exist
(1) Legislative/general in nature
 Purely leg decision doesn’t give rise to duty of fairness so long as subject matter of decision is not
an individual concern or a right unique to the petitioner (Inuit Tapirisat and Martineau)
 Would paralyze gov w/ legit expectation cases (Old St. Boniface, Canada Assistance Plan)
 Can give rise to duty if affects persons rights disproportionately (Homex)
 If Cabinet has specific target then entitled to procedural protection but if general then diminished
(Homex), leg not generally engaged in individualized matters (Roncarelli – indiv liquor license)
 Any meaningful conception of a separation of state powers between the legislature and the courts
demands it – courts enter the picture after legislation is enacted, not before
Issues: Legislative/general exemption
o Recalls long-discredited distinction between administrative and judicial or quasi-judicial decisions
o Invites argument over the meaning of the term “legislative” and makes for all-or-nothing outcomes
o Categorical exemption extends beyond primary leg to include secondary leg and policy decisions
(2) Emergencies
 As in Cardinal, compliance with the duty of fairness may be suspended until after the required
decision has been made in the event of an emergency situation
 Special nature of certain administrative bodies (for example, prison administration) may require
that it not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate
procedural requirements
(3) Non-dispositive decisions
 The duty of fairness does not, in principle apply to investigations or advisory processes that may
occur prior to the commencement of a formal decision-making process
 Note that non-dispositive decisions may give rise to a duty of procedural fairness if the
recommendations is likely to have significant influence on the final decision (Re Abel)
(4) Where overridden by statute
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A right, privilege, or interest is involved in the decision (Cardinal, inmate) b/c for the move away from
formalism to extend fairness to admin state and open tripartite (thin Maj of Nicholson)
 There is a common law overlay on the exercise of public power even if SPPA doesn’t apply?
o If no SPPA, then CL procedural fairness req apply b/c decision is administrative and affects the
rights, privileges or interests of an individual is sufficient to trigger the application of the duty of
fairness (Cardinal, inmate). If no SPPA and non-judicial admin body, then the SCC held that still
applies if affect on indiv rights, privileges & interests bc duty to be fair extends to purely admin
decisions (thin Maj of Nicholson, Laskin unjust to dismiss EE < 18 months, dissent).
o When statute silent on process, courts impose CL presumption in favour of natural justice
(procedural fairness); CL “fills in” the omission for implied procedural protections (Cooper).
o Note: debate re silence in a statute at to procedural fairness (Ruling on no natural justice in leg
decisions in Canadian Ass of Importers)
Charter threshold
 Although non-gov admin bodies such as universities are generally not amenable to the Charter with
respect to actions and decisions that would expose them to judicial review despite their statutory status
(McKinney), statutory bodies that are not, in general, gov become subject to the Charter when charged with
responsibility for the effectuation of government programs (Eldridge)
 Charter has also been used to give rise to a duty of fairness (Singh – s 7)
o Establishing s 7 is a much higher threshold than demonstrating affect of right, privilege, or interest
 Will be difficult, but possible, to justify under s 1 (weak admin convenience argument)
Step 2: Determining the Degree of Fairness Owed (low, MEDIUM, high)
The general content of the duty of fairness owed by __________ assessed through an analysis of the five
Baker factors. However these factors are not meant to be exhaustive (reiterated in Mavi):
1. Nature of decision being made and process followed in making it
 How court like (individualized decision, transcript, hearing?)
 More discretionary / more policy = less judicial, more relaxed duty of fairness (Baker)
 Decisions that are considered judicial or quasi-judicial in nature are likely to demand more
extensive procedural protection than administrative decisions
 Degree of fairness affects content

2. Nature of the statutory scheme and the terms of the statute pursuant to which the body operates
 No built-in appeal procedure = greater protections
 Req of fairness may be minimal in context of preliminary steps to formal decision-making process
3. Importance of the decision to the individual
 S. 7, time, $, Admission to profession (stated to be of high priority in Baker),
 Content of duty increases in proportion to the importance of decision to the person it affects
 Suresh: “the greater the effect on the life of the individual by the decision the greater the need for
procedural protections to meet the common law duty of fairness and the requirements of
fundamental justice under s. 7 of the Charter”
 Extends to children (Baker)
 Determination of refugee claimant’s status infringes s. 7 right, even if narrowly defined;
under Immigration Act, refugee claimant has right to have claim determined by minister, and
without such a hearing, a right not to be returned to place where there’s a threat to his
life/liberty/security Fails under s. 1, Wilson states admin convience not enough to save violation
and not within reasonable limits. (Singh v Canada (1985) SCC unamious court in appeal but 3 for
breach of s. 7 Charter and 3 for breach of 2(e) Bill)
4. Legitimate expectations (process and decision NOT outcome)
 Person is “promised” an outcome OR understood certain procedural protection due to procedures
of administrative body, although this is controversial and wont result in outcome but higher
procedural fairness protection  no substantive rights

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In Baker Court concludes ILO doesn’t have force of law so no additional fairness more reasonable
to expect best interest considerations are relevant and a guideline on how to deal w children harder
to est legitimate expectation based on a Convention
 Sossin: problematic b/c supposed to be assess on legal req of ROL not deference
 Need “clear, unambiguous and unqualified” promise (CUPE v MOL (2003) SCC)
5. The choice of procedure made by the agency itself
 Procedural choices made by DM to address concerns regarding efficiency, workable standards, etc.
 DM required to communicate needs of their processes in their responses to app for judicial review
Balance 3 factors in assessing reasonableness of delay (Blencoe):
“damage to public interest in the fairness of the administrative process should the proceeding go
ahead would exceed the harm to the public interest in the enforcement of the legislation if the
proceedings were halted.’” (Maj in Blencoe)
1. time taken vs. inherent time requirements of the matter
2. causes of delay beyond the inherent time requirements: avoidable?
3. impact of the delay: procedural and also harm to lives)
4. Remedy: s.7? if no then admin solutions to get more process or expedite case as in Blencoe
 Delay abuse of process (Blencoe v BC (2000) SCC Minister sexual harassment complaints at BC
HRTO lost jurisdiction b/c of 30 month delay + claimed s. 7 violation. Holding: 1) Charter applied
b/c BC HRTO creature of statute + exec gov programs 2) No Charter infringement because
although delay can cause psychological stress, in this case the Charter cannot protect such
emotional interests and the “stigma” attached is not as egregious as in the criminal law context)
Note:
 Factors (1) and (2) often get balanced with factor (3) – as was the case in Baker.
 Many cases boil down to balance indiv interests (3) w/ state’s need for efficient & expeditious dec making
Applying the 5 Factors of Procedural Content to Baker (L’Heureux-Dube for Maj w/ Cory and Iacobucci
agree apart from use fo convention for INTL law) H: for Baker, H&C decided again, appeal allowed,
decision overturned
1. Nature of Decision
 H&C is DISCRETIONARY not judicial determination; H&C very different from a judicial decision since
it involves the exercise of considerable discretion and requires the consideration of multiple factors;
emphasizes guidelines given to Minister and broad policy decisions about who stays in country; need to
consider public policy issues as well as individual’s H&C issues; not like a dispute between two private
parties so more like administrative rather than judicial case = policy oriented
 On other hand; does not require balancing interests of different constituencies = individualized
2. Nature of Statutory Scheme:
 H&C is exception to general principles of immigration law so less fairness appropriate
 On the other hand, no appeal procedure although JR may be applied for w/ leave of Fed Court – Trial Div
3. Impact/Importance Of Decision To Individual
 Exceptional importance  content of duty of fairness more extensive
 Official had “a lack of concern regarding the interests of her children and were insensitive to her mental
health issues” despite presumption of reasonableness
4. Legitimate Expectations
 Ratifying Rights on Child creates LE that Baker will be allowed to stay in Canada b/c she had 4 Canadian
born children; L’Heureux-Dubé rejects this argument because no specific promise
5. Procedural Choices Of Agency Itself
 Act affords High discretion Minister to decide on procedure and immigration officers do not conduct
interviews = less fairness
Baker, L’Heureux-Dubé Holding: Balancing the Factors
 No obligation to give oral interview; Multi-faceted decision; Exception to general immigration law
 Decision-maker must allow Baker to make written submissions to counsel based on full record
 Dubé rejects these reasons against written decisions; if decision has importance for individual and there is a
statutory right of appeal then need written decisions
 Here duty was met by notes of junior immigration officer; have notes so send them; disclose them
 Notes however form basis for “reasonable apprehension of bias” – what if IO had known notes would be
disclosed, then what? They would not have been candid and would have concealed true thinking
 Dubé says notes infected decision making process as a whole;
 Dubé points to bias in: use of capital letters; emphasis on children and reference to the system
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Problems with decision:
1. Existing law in Canada should be evolved to create a requirement to provide duty to give reasons to
support admin decision; duty to give reasons
 Duty to give reasons bring discipline on DM
 Satisfaction to parties; inner morality of law; ppl have sense got fair shake; weren’t treated arbitrarily
 Easier for reviewing court to consider decision
2. Reasons against written decisions
 Costs, time, everything may be appealed; efficiency; expeditiousness;
 If decision is one that will not lend itself to extensive reasons then decision may be structured to fulfill
legal requirement but not spirit of requirement; just a form; template reasons; archival reasons
Requirements Of Procedural Fairness In This Case:
 opportunity for the applicant to give written submissions, but not an oral interview
 giving of reasons for the decision (although this requirement satisfied by provision of officer Lorenz’ notes)
 also, the officer’s notes displayed a reasonable apprehension of bias on the part of the decision-maker
Suresh (2002) SCC
F: Ministerial security certificate/ order to deport permanent resident on grounds of ‘danger to the security of
Canada’ b/c Tamil Tiger. Allowed written submissions but no access to CSIS reports etc
H: Violation of s. 7, not saved by s.1; deportation order threatens life, liberty, security of person unless specific
case made out for withholding right to know case
Applying the 5 Factors of Procedural Content to Suresh
1. Nature of Decision
 NEUTRAL FACTOR: DM resembled judicial process but also highly discretionary; minister had to deal
w/ wide range of issues over what constitutes security threat; Minister must evaluate past actions and
present dangers to an indiv pursuant to s. 53 of Immigration Act but also future behaviour of indiv
2. Nature of Statutory Scheme:
 NEED STRONG PROCEDURAL SAFEGAURDS; Board points out the Act has extensive procedural
rights; representation by counsel but designation of being security threat carries no procedural rights and so
this means higher level of PF; overall the Act ensures participatory procedural rights but s. 53 has no
provision for a hearing, no requirement of oral or written reason, no right of appeal
3. Impact/Importance Of Decision To Individual
 HIGH: deportation has serious personal, financial, emotional consequences and greater when torture and
status of Suresh as refugee; Canada is a signatory to the Convention Against Torture
4. Legitimate Expectations
 N/A
5. Procedural Choices Of Agency Itself
 Calls for deference but outweighed by seriousness of other factors such as risk of torture to individual
 Parl signaled intention to leave to discr of Minister: free under statute to choose procedures in s. 53 decision
 Considerable discretion in evaluating future risk and security concerns;
 On the other hand: deference weighed against elevated level of procedural protections for refugees due to
risk of torture and HR violations in which Canada cant be complicit constitutionally nor under INTL treaty
Applying the Factors Together with the Circumstances
 No oral hearing required BUT must be something more than Suresh received
 Once prima facie risk of torture made out (by applicant) then Minister must provide all relevant info and
advice that Minister intends to rely on (subject to privilege or safeguarding public security documents)
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Must be opportunity to address concerns in writing, incl challenging validity of info
After considering submissions of refugee  Minster MUST GIVEN WRITTEN REASONS:
o must articulate and sustain finding that no torture or other cruel treatment if returned
o why person is a security risk to Canada
o must emanate from person making decision and not a bureaucrat
Minimum requirements to satisfy s. 7;
Court says look at Baker, basic principles underlying common law are same as those underlying fairness in
s. 7; once s. 7 engaged then you must meet, at least, reqs of CL although Charter may require more
Step 3: Reach MEDIUM degree + state where each side would fall
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
Applicant wants high
Admin body challenged argues low
Step 4: Specific Components of the Duty of Fairness
Once a level of fairness is decided, the issue turns to the specific aspects of procedural fairness that the applicant
can argue they didn’t receive.
Hearing (Written or Oral)
 Court req tribs to give Baker and Suresh opportunity to respond in writing, but NO ORAL HEARINGS
o High level of fairness found = oral hearing
o In Baker, SCC sustained the immigration authorities’ holding of a written hearing
o In Nicholson, Laskin CJC in describing the applicant’s procedural entitlements left discretion for
oral or written hearing for Board of Commissioners of Police
o HOWEVER: “However, it also cannot be said that an oral hearing is always necessary to ensure a
fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness
recognizes that meaningful participation can occur in different ways in different situations.”
(L’Heureux-Dubé in Baker)
 Where a serious issue of credibility is involved, fundamental justice requires that credibility be determined
on the basis of an oral hearing (Khan (1997) OCA)
 Electronic hearing has also achieved extensive recognition in the 1994 amendments to SPPA
o HOWEVER, there are decisions affecting rights protected by the Charter and the Bill of Rights
 Evidentiary or documentary (denied b/c not the right documents?)
 Beetz in (Singh v Canada (1985) SCC) did NOT afford them a fair hearing in accordance with principles
of fundamental justice because the individuals have been heard, but only before an official who has nothing
to say about the actual decision. They’re not heard by minister or advisory committee, or IAB (if their
claim didn’t go through). Given severity of the consequences, there must be a full oral hearing.
 procedure for determining whether an IRPA security certificate is reasonable and the detention review
procedure fail to assure the fair hearing that s. 7 requires before the state deprives a person of this right
(read: when s.7 implicated, triggers right to fair hearing) (Charkaoui)
Right to fair hearing includes 4 components (Charkaoui):
1. Must be oral hearing (requirement met. Here, before FC judge)
2. Hearing must be before an independent/impartial adjudicator (requirement met)
3. Adjudicator must make decision on fact & law (Req not met. No individual at hearing, so no opportunity to
cross; person can’t counter legal args of state b/c not apprised of them so decision not on fact & law
4. Notice and right of reply (Not met. No opportunity to reply, and review procedure doesn’t account for that
sufficiently, as required by s. 7)
Disclosure (full or summary)
The key issue is how much disclosure is required in particular proceedings as the criminal justice standard of
disclosure will rarely apply in admin law (May). “[T]he duty of procedural fairness generally requires that the
decision-maker discloses the information he or she relied upon. The requirement is that the individual must know
the case he or she has to meet” (Stinchcombe).
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Disclosure requirements
 Varies: Disclosure reqs are likely to be high in instances where high consequences of decision (Suresh)
 Generally, individuals only entitled to disclosure of info relied on by DM (especially w/ adjudicative DMs)
 “considerable scope” for the duty of fairness to require disclosure on an ad hoc basis
o High disclosure: professional discipline, possible loss of livelihood (Baker)
 Applicant aware of what they needed to submit?
 Dislosure of all evidence used against applicant (references, letters, medical docs)
Closed proceedings
 In highly exceptional circumstances, closed proceedings may be required. Ex:
o Access to information requests
o Government security clearances
o Applications for security warrants
o Seizure of assets in organized crime
o Listing of organizations as terrorist
o Security-based immigration decisions
 Can be used to provide special methods of accountability for the use of the state’s secrecy powers
o National security: in order to have independent accountability, have to balance w interests of state
o CEA, s 38: AG or individual with duty to inform AG may apply to Federal Court with a concern as
to whether disclosure of a piece of information would be injurious and whether the injury from
disclosure is outweighed by the public interest
 Fairness concerns:
o Hard to have accountability when there is no public scrutiny
 Potential for deceit/error
 Lack of authority over foreign sources
 Adjudicator is dependent on the exec, as executive has control over the underlying record
o Difficult for one to be accused and to not know what evidence is being used against him or her
o Dynamic/atmosphere of closed proceedings
 Court has lack of expertise
 Lopsided executive presence in the hearing room
 War of attrition in disclosure
o Hard to properly put the issue in an adversarial process
 Counsel cannot receive instructions; adjudicator is denied access to relevant information
 Even where s 7 is engaged, there are circumstances where it is permissible for the state to have closed
proceedings, so long as there are substitute protocols in place to satisfy the principles of fundamental
justice (Charkaoui 1)
 Documents used in the process of a closed proceeding must be retained in order for the information to be
verified by a superior body (Charkaoui 2)
Disclosure of In-House Legal Advice
 Info relied on by DM that’s prepared by in-house counsel presents problem of solicitor-client privilege
 Common for admin DMs to consult with lawyers in making decisions, writing reasons, and interpreting leg
o Each case must be assessed on a case-by-case basis to determine whether the actions are privileged
o Must consider both the subject matter and circumstances
 Solicitor-client privilege is absolute and applies to gov or in-house council, except if advice was given in
an exec or non-legal capacity (Pritchard)
o EX: Walkerton, e-mails from counsel construed as political advice so not protected (however,
email could have been construed as legal advice on a broad definition of the term)
Sufficient Reasons
 MINIMAL REQUIRMENT: If only small amount about analysis/conclusion, total judgment okay. Reasons
don’t have to include every argument. SCC upheld arbitrator's decision, finding his reasons provided
reasonable basis for conclusion re vacation pay in Newfoundland Nurses
o HOWEVER, note Baker Lorenz’ notes were reasons but BIASED
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paralyze the purposes of speed, economy and informality underlying the grievance arbitration process.
Court also rejected the argument that the deficient quality of reasons given could in effect amount to "no
reasons", thereby triggering concerns of procedural fairness and a correctness standard of review
under Baker v. Canada (Minister of Citizenship and Immigration). Rather, where reasons are given, any
challenge to those reasons or the result of the decision should be made within the reasonableness analysis.
This decision indicates that it will generally be difficult to challenge a decision based on an assessment of
the thoroughness of its reasons; if the reasons allow the reviewing court to understand why the decisionmaker made its decision and to determine whether the conclusion is within the range of acceptable
outcomes, the Supreme Court has indicated that the Dunsmuir criteria are met.
S. 17(1) of SPPA: tribunal shall give reasons IF REQUESTED by a party
Reasons are not required for all decisions, but in “certain circumstances,” such as:
 Decision has “important significance” for an individual, because public actors demonstrate respect for
those affected by justifying the decisions they make; and
 If a statutory appeal process exists, in order to facilitate the workings of that process
 giving reasons serves the values of fair and transparent decision making and reduces the chance of arbitrary
or capricious decisions and cultivates the confidence of citizens in public officials (Lafontaine). There is a
legitimate expectation that, in situations such as where an application is denied, future applications would
be thoroughly vetted and carefully considered, giving rise to subsequent duties to provide reasons. The
decision maker cannot simply cite reasons from the first application (Lafontaine).
The duty to give reasons is only fulfilled if the provided reasons are adequate. Generally, adequate reasons are
those that serve the functions for which the duty to provide them was imposed (see below) (VIA Rail).
The functions of reasons were outlined in VIA Rail:
(1) To promote disciplined decision making
(2) Assuring parties that their interests were properly considered
(3) Effectuating any right of appeal or judicial review and
(4) Guiding others in their conduct
Adequacy of reasons (Via Racial FCA)
1) Basis of appeal (or judicial review, as per LHD)
2) Parties need to ensure that all their arguments were heard and considered – can’t just recite submissions back
3) Ensuring that tribunal exercised discretion properly
4) Credibility – if finding of credibility, need to show how exactly decision was made
5) Other organizations subject to regulations need guidance
Notice: On and Off Record
Must allow reasonable opportunity to fully and fairly present their case. Concerned parties whose rights, privileges,
or interests are at stake are entitled to participate meaningfully throughout the decision-making process.
 It is not sufficient merely to have notice, it must be accurate (Ontario Hydro)
o The substantive content of notice must be sufficient (Pleasure’s Gentlemen’s Club)
Where the requirements of notice are not prescribed (as they often are) in a tribunal’s rules or procedure or
governing legislation, the following questions must be assessed:
 Was it timely, in the sense that it provided adequate time to allow the recipient to respond?
 Did it provide sufficient information to allow the recipient to make an informed response?
Right to Cross Examine
 Right to cross in oral hearing is not a NECESSARY element of natural justice
 Must be some way to test the evidence (Township, report open to cross). Written submissions CAN be
substitute. Certain cases are less adversarial than others so crossing might not be appropriate (Innisfill)
 Innisfill: parties entitled to cross-examine witnesses before hearing b/c s. 3 of SPPA made it applicable to
the hearing under s. 14 of the Municipal Act. However, appellant not allowed to cross the ministry official
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Consultation Among Agency Members
 For admin decision makers with no stare decisis, meetings can be helpful to make reasonable decision
 Rules for consultation among Agency Members (Consolidated Bathurst (1990) SCC (In IMPARTIALITY)
 Tremblay comes 2 years after Consolidated, where “internal consultation process” was struck down by
SCC b/c distinction:
o decision maker was persuaded into changing her mind, didn’t do it on her own
o didn’t put into practice safeguards discussed in Consolidated Bathurst (policy)
o head of commission played too many roles in the process.
Right to Counsel
 Right to counsel extended in criminal-like proceedings due to degree of stigma in criminal activities
 Admin determination in which lawyers not permitted
o Harry Arthurs denied counsel at OLRB b/c would undermine culture in labour arbitration for direct
communication with arbitrators sorting out law, which was prevented by Divisional Court
o Most Small Claims Court outside ON prevent lawyers
o First online tribunal in BC
 NOT part of ROL other than in certain criminal context in Charter (Christie)
Step 5: Reasonable Apprehension of Bias / Guarantee of Impartiality (236)
2 branches of natural justice:
1) audi alteram partem (right to an opportunity to be heard)
2) nemo judex (free, unbiased, disinterested judge)
Onus on applicant to demonstrate individual bias by any of DMs violated their right to an impartial and
independent DM b/c DMs did not possess “an open mind which is open to persuasion” (Newfoundland Telephone)
b/c there is a presumption of impartiality
Test for Reasonable Apprehension of Bias (General)
Since a duty of fairness has been establish, the decision must be free from bias. Must demonstrate a reasonable
apprehension of bias rather than real bias, according to test in National Energy Board cited in Baker that “an
informed person, viewing the matter realistically and practically applying themselves to the question and obtaining
thereon the required information would conclude bias.” While there are different views on the relationship or
different nature of the closed-minded test (some degree of openness) and reasonableness test (strict), a reasonable
apprehension of bias is applicable here. Pre-Baker, courts often applied a very high standard for finding a
reasonable apprehension of bias and seemed to address real bias as opposed to reasonable apprehension (Paine)
 Reasons for the test:
 Designed to deal with certain apprehension or appearance of bias
 Too difficult to prove that a person is biased
 Institutional safeguard
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
Cautioned in being too sensitive, otherwise inoffensive statements might be used to throw out a decision
Note that, as was the case in Pelletier, the Baker factors can assist here in determining the amount of
“sensitivity” a reasonable and right minded person might have when apprehending bias
Step 6: Outline Sources of Bias (5 sentences) (Can’t disprove with ex of previous non-bias)
Bias of _____ goes straight to the question at hand of whether the applicant met the test _____
Connections
Direct or indirect connections between the adjudicator and a party or issue
 Direct pecuniary interest as of date of hearing, enough to raise concerns about $ b/c relaxed rules for
speciailized tribunals b/c drawing from industries your regulating (Energy Probe)
 Requires thorough analysis of situation: length and timing of association (Newfoundland Telephone)
 Current relationship NO-NO (Pinochet, judge director of Amnesty INTL and intervener in case vs dictator)
 Grand Junction
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Prior relationship has to be raised as soon aware (Wewaykum Indian Band w/ Binnie J) (Goodridge)
Involvement in an earlier stage of the decision making process
 National Energy Board, Guy part of group of companies that applies for pipeline, then joined the relevant
board before they brought the application. SCC holds there is bias
 Cannot appear to have favoritism
 Even where it may be warranted, admonitions can give a sense of bias
Interest in Outcome
 Common interests do not lead to bias BUT can’t rule on decision that relates to personal litigation before
the same body (Benedict v Ontario, HRTO judge hears WD case and she has WD case)
 Div Court says can’t hear HR case because part of group that has made similar claim (A&P Professor part
of a group of complainants in systemic discrimination case at Osgoode could not hear systemic
discrimination case at supermarket)
Copied reasons
 Independent judgment found in Cojocaru (judge copied 47 para / 321)
Attitudinal bias
Statements reflecting an attitude or predisposition on the part of the decision maker
 No exact guidance in Baker but note about stereotyping profession, mental illness and 4 children + CAPS
 (diff for judges) Cant express conclusion before decision has been made b/c consumer advocate, Wells, not
going to let Newfoundland Telephone raise rates (Newfoundland Telephone)
 Can’t be swayed by one member on a panel against the applicant (Paine v U Toronto (1980))
 Media statements of commissioner in Pelletier, pre-prepared reasons (Sternberg)
 Judge interrupted so much that demonstrated existence of closed mind (Cengarle)
 Prejudgment (“percolating”) and mixed up allegations (LSUC v Cucci)
Institutional reasons for finding reasonable apprehension of bias:
 Overlapping roles (EX: involvement in both prosecution and adjudication of a case, involvement in both
setting and deciding a case) (Regie de permis d’alcohol)
 Institutional bias in multiple decisions by way of context/structure of DM process (Keen, Paine)
Step 7: Independence
Since Valente, the independence of tribunals structures has been tested. As it stands, there is no free standing
constitutional guarantee of independence for admin tribunals b/c admin tribunals not separate from exec, “span
divide between the judiciary & exec” (Ocean Port). Constitutional judicial indepence peaks only to judges, JPs.
Test
Would a reasonable, well-informed person having thought the matter through conclude that ADM is sufficiently
free of factors that could interfere with their ability to make impartial judgments. Admin tribunals do not have to
meet same standards as courts. Apply guarantees of tribunal flexibly to account for function performed by tribunal
under scrutiny (security of tenure, $ security, admin control) (Masquit)
 Good EX of the flexibility of CL principles of independence is Bell (2003) SCC
H: Bell’s arg dismissed, no compromised PF or contravene of any applicable quasi-constit or constit principles,
reasonable person would hold no bias. CHRC hears complaint (staved off for 13+ years).
1. Leg supremacy arg; parl may choose overlapping functions due to expertise to overrule CL req
2. Power (guidelines + extension of terms) is not unfettered and statute and admin law have checks
to ensure that power not abused.
For ON tribunals, independence is common law principle of natural justice, which can be taken away by stat or
constitution if parl decides to. Guarantee to indep occurs in filling in of statute. Neither Charter nor Constitution
Act preamble applies, thus can’t defeat statut author for “at pleasure system” (Ocean Port)
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Tenure
 As established in McKenzie (2006), highly adjudicative tribunals (like residential tenancy arbitrators)
should have more stringent reqs incl a higher degree of independence preventing or would violate ROL
o Deputy judges in ON have guarantee
 To be independent, admin DM don’t have to hold office for life / tenure not mandatory BUT cannot be
dismissed at pleasure of exec branch (Quebec Inc v Quebec (Regie), directors of Quebec liquor licensing
board have sufficient security of tenure despite the fact that office was limited)
o At pleasure appointments allow gov to remove exec members not following orders (Keen)
o “at pleasure” dismissal will not satisfy common law requirements for independence UNLESS there
is clear statutory authority (Note: Defence of Statutory Authority).
 All federal public officers are deemed to hold office “during pleasure” unless otherwise expressed by
statute or other instrument (Interpretation Act, Keen)
Ocean Port (Liquor Board members served at pleasure of Lieutenant Governor)
 SCC rejected: Ref Re Remuneration of Judges PEI JI unwritten constit principle of courts does not extend
to the independence of any administrative tribunal, even if the tribunal’s principal role is adjudicative
o Court held only way to defeat is if constitutionally entrenched form of independence applies and in
this case no constitutional independence at stake in Ocean Port.
 SCC distinguished: Ocean Port from Regie b/c Quebec adj bodies subject to Charter guarantees of
independence which req more independence than tribunals in BC
Influence
Consolidated Bathurst (1990) SCC (3 adjudicators discuss decision with full Board meeting)
 The danger that full board mtg may fetter JI of panel doesn’t create RAB or lack of independence.
Acceptable as long as: ult dec is by panel members, not forced or coerced, not attendance, votes, min,
avoid facts  criteria is not absence of influence but freedom to decide according to consc + opinions
o Dissent by Sopinka: Not certain full Board mtg was fatal, not okay to discuss policy and not facts
bc policy has fact component, and this process violated principles of natural justice
 1) no opportunity to persuade
 2) denied opportunity to present evidence and submissions b/c not all evidence discl
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SUBSTANTIVE REVIEW


SOR analysis determines what level of deference the court will give to an administrative decision
Courts could argue that intervention was justified when the leg intended that questions of law OR mixed
fact and law implicated the jurisdiction of the agency, thereby requiring judicial review
Deference = respect

ROL:
 No matter the statute or decision making context there should always be recourse to court (Dicey)
 Should be constitutional right to review any decision, courts not always best place to resolve dispute
o If decision lays outside of prov of decision maker justice would amount to nothing unless power to
judge admin scheme that goes beyond jurisdiction and affects rights and priv with no lawful basis
o Arg: Parl authorized to make decision on it’s merit and Parl never auth someone bring bias as in
Baker to bring ulterior motives to bear on decision
***********If there is more than one question, it is unclear whether there should be one standard (VIA Rail) or
individual standards (Levis).
Step 0: Stare Decisis
First, the court will determine whether there is existing jurisprudence that determines applicable standard in
satisfactory manner? Since this inquiry has been unfruitful, the court must now proceed to a contextual analysis of
the factors making it possible to identify a proper SOR (Dunsmuir)
DETERMINING THE APPRORPRITE SOR
Answer structure (could be multiple issues based on what decision turned on)
We must determine the SOR applicable to the decision maker’s interpretation of ____ in particular, sections
_______. That SOR must then be applied to the decision maker’s decision. In order to determine the applicable
standard, we will now examine the factors relevant to the SOR analysis.
The specific question is whether ________ permits the decision maker to _________ and the extent to which a duty
of fairness applies to the ____ of a _____ pursuant to the contract/statute/etc. This is a question of __________
(law, fact and law, discretion, policy, or fact). The question is whether in light of the privative clause / legislative
history/ etc the regime under which the DM acted and the nature of the question of _____, a standard of ______
(reasonableness or correctness) should apply.
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


DM appointed under
Inclusion of full privative clause gives rise to strong indication that reasonableness SOR will apply
Nature of regime favours standard of ____
Nature of legal question is not one of central importance to the legal system and outside the specialized
experience of the dm, which suggests standard of reasonableness
Considering privative clause, nature of regime, nature of the question of law at issue her, I conclude the appropriate
standard to be reasonableness. I must now apply that standard to the issue considered by the DM in their ruling.
Step 1: What is the nature of the question/decision? (law, fact, discretion)
Mixed fact and law: apply one standard
 Deference applies where legal & factual issues intertwined & cant be readily separated (Dunsmuir)
Discretionary: statutory language indicates wide range of choice
 Since Baker, discretionary decisions are subject to the same standard of review analysis as other
substantive decisions
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For a decision to be truly discretionary, there must be language in the statute to indicate legislative
intent for wide discretion
Concerns over use of discretion are addressed in cases such as Roncarelli, which show that courts will
authorized inherent authority to stop statutory decision makers from abusing power
o Administrative bodies should conduct themselves with complete impartiality and integrity; actions
should be compatible with the purposes envisaged by the statute which gives its power
o No such thing as absolute and untamed discretion
o Discretion necessarily implies good faith in discharging public duty
Policy/polycentric: numerous input factors/diverse constituencies
 Favours deference (Khosa)
 Polycentric: affects large # of constituencies and reqs a balance betwn those constituencies (Bell Canada)
Fact:
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
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Law:

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appellate courts have historically deferred to lower courts on this issue because they have not had close
contact with evidence and witness testimonies
Credibility is a question of fact (Dr Q)
Deference should be shown where admin trib has adv of conducting hearings &assessing evidence (Khosa)
In Dunsmuir, the adjudicator ruled on an area of law he did not have expertise in b/c he ruled on his own
statute regarding the dismissal not the correct common law principles that applied to the public
employment relationship thus standard was correctness
appellate courts are much more hesitant to defer on a legal issue; the law must be dealt with within a
hierarchal structure
o Pre-Dunsmuir, correctness is automatically applied when there is a question of law which is both
of central importance and outside of the administrative body’s expertise (Pushpanathan)
Step 2: The presence or absence of a privative clause?
Prior to CUPE (NO LONGER THE STANDARD), courts would circumvent privative clauses by using the
doctrines of “preliminary or collateral question” (Bell) and “asking the wrong question” (Metropolitan Life
Insurance) in order to turn administrative decisions into questions of jurisdiction. They historically didn’t tolerate
them when they enable a tribunal to determine the limits of its own jurisdiction without appeal or review (Crevier)
o These doctrines of preliminary or collateral question and asking the wrong question were derided
as formalistic, malleable, and instrumental devices manufactured by courts to meddle in spheres
where the legislature had deliberately excluded them
o A full privative clause is one that is conclusive + not reviewable in any way b/c privative clauses
like s. 101 shouldn’t be questioned unless unreasonably wrong (Dickson for SCC in CUPE)
 While CUPE did not break with earlier jurisprudence that invoked jurisdictional error to circumvent
privative clauses, it conveyed a spirit of “curial deference”, a recognition that ADMs are not merely
inferior tribunals, but specialized bodies possessing a legislative mandate to apply their expertise and
experience to matters that they may be better suited to address than an ordinary court
Privative clauses do not prelude review, but will weigh heavily in favour of deference. To determine
the strength of a privative clause, one can consider the context of the act as a whole (Hibernia)



In the post-Dunsmuir legal landscape, courts reserve the right to intervene in administrative decisions, but
the presence of a privative clause indicates that deference should be shown to the decision maker
o In Dunsmuir no privative clause but discretion for Minster so reasonableness standard
o SCC held decision was not in best interests of children
o TENSION: ROL AND DEMOCRACY: reasonableness sites with legislative intent
Ability to appeal = less deference and towards correctness (depending on the lang)
Note that judicial review is justified even when a privative clause is present because it is necessary to
ensure that privative clauses are read in their appropriate statutory context and that administrative bodies
do not exceed their jurisdiction
20

Justification is that Parliament could not have intended for administrative bodies to be
protected even in cases where they overstep their delegated powers
Types of privative clauses:
Full
o Declares that decisions of the tribunal are “final and conclusive” from which “no appeal” lies
and all forms of judicial review are excluded
Weak
o States that decisions are “final and conclusive” or that decision makers have “sole or exclusive”
jurisdiction in certain matters
Modern privative clauses
o Purports to limit review, but falls short of traditional wording
o Necessary to determine whether clause was intended to have full privative effect or a lesser effect
Is there a statutory right of appeal?
 The existence of a statutory right to appeal will weigh against deference because it shows that the
legislature intended the court to review questions of law
 Note that partial privative clauses and partial rights of appeal can sometimes cancel each other out
o For example, when the legislation restricts the right of appeal to only particular issues (for example
“serious question of general importance” in IRPA)
 Important aspects:
o Time limits
o To whom to appeal
o Notice of appeal to specific parties
o Basis for alternate jurisdiction
o Extent of appellate jurisdiction
Step 3: What is the purpose of the tribunal and the regulatory scheme?
MORE DEF =
 Resolution of unclear lang in an ADM’s stat usually best left to ADM b/c choosing btwn multiple
reasonable interps will often involve policy considerations that leg desired ADM to make, not courts due to
expertise. Leg flexible to adapt as need over time and across prov for interprovincial cooperation (McLean)
 Inappropriate for courts 2 use stat purpose 2 utilize correctness when case could go eithrway (Bell Canada)
o Polycentric decisions will weigh towards deference
 DISCRETION FOR JURISDICTION DECIDED BY ADM: Did trib go beyond what leg intended?
o discretionary decisions, like all other admin decisions, must be made w/in the bounds of
jurisdiction conferred by statute (Roncarelli), but considerable defer will be given to ADMs by
courts in reviewing the exercise of discretion and determining scope of DMs jurisdiction (Baker)
 Note that preambles and particular provisions can be interpreted differently by courts
 If the decision maker was interpreting its own statute or a statute closely related to its function, deference
will usually apply (as in labour relations, for example)
Step 4: What is the expertise of the decision-maker, relative to the courts?
How does expertise of tribunal on the issue compare with the court’s (if legal q, does it fall w/in expertise)?
LESS DEF =
 In Pushpanathan, court had more expertise in legal interpretation and, thus, used a correctness standard
MORE DEF =
 “under reasonableness review, we defer to any reasonable interpretation adopted by an administrative
decision maker, even if other reasonable interpretations may exist.” (McLean v. British Columbia
(Securities Commission), 2013 SCC)
 Expertise weighs towards deference (Toronto v CUPE in labour arb)


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21
“Deference may be warranted where an administrative tribunal has developed particular expertise in the
application of a general common law or civil law rule in relation to a specific statutory context”
(Dunsmuir, case streamlined application of standards).
When the issues raised go to the core of an administrative decision maker’s expertise, the standard of
review will likely require deference (Bell Canada).
Similarly, because polycentric decisions affect a large number of constituencies and require a balance
between those constituencies, polycentricity weighs in favour of deference (Bell Canada).
Step 5: Decide on Standard
Decide on what the appropriate level of deference is depending on unique admin context of decision and DM
2 standards (Dunsmuir, elaborated on in Khosa):
Reasonableness: unless there is a clear and compelling reason not to, the decision is upheld
 Questions of fact, mixed fact and law
 Specialized expertise required, within the scope of the regulatory scheme/statutory purpose
 Charter: “ADM exercising a discretionary power under stat has by virtue of expertise and specialization,
particular familiarity w/ competing considerations at play in weighing Charter values.” (Dore)
Correctness: no deference shown; the reviewing judge will substitute his or her own decision
 Applies when (1) there is a distinct/separable general question of law, or when there is a jurisdictional
question that was the primary factor in a decision
 Also, may apply when the question falls outside of the decision maker’s expertise, and/or is beyond the
scope of the regulatory regime/statutory purpose
APPLYING STANDARD OF REVIEW
Answer Structure
While I am required to give deference to the determination of the DM, considering the decisions in the preliminary
ruling as a whole, I am unable to accept that it reaches the standard of reasonableness. The reasoning process od the
adjudicator was deeply flawed. It relied on and led to a construction of statute that fell outside the range of
admissible statutory interpretation.
Step 7: Apply reasonableness SOR (consider discretion + guidelines)?
Reasonableness applies:
 Generally everything except questions of law
 If question is one of fact, discretion, or policy, or where the legal issue is intertwined with and cannot be
readily separated from the factual issue or the legal issue as in Dunsmuir is not one of central importance
to the legal system and is outside of the specialized expertise of the adjudicator + privative clause
 Discretion: “The Minister May...” / “Where the Minister is satisfied...” / Remedial discretion
Does decision and discretion used fall within a range of acceptable outcomes defensible in respect of facts
and law (Variability of deference spectrum)?
Look at whether the decision falls within a range of possible, acceptable outcomes which are defensible with
respect to the facts (evidence), law (Dunsmuir). Judge on spectrum, with some giving more deference to decision
makers (Justice Iacobucci in Southam).
Outcome
 justification, transparency, and intelligibility within the decision making process
 There may be more than one reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and intelligibility, it is not open to a
reviewing court to substitute its own view of a preferable outcome (Khosa)
Privative Clause (in IA)
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privative clause is evidence of leg intent that decision should be made by DM, and that leg tried to exclude
or limit role of courts. Here no privative clause so heading towards spectrum of correctness Baker
Expertise/specialization of Decision Maker
 Does DM have expertise in the area? Tempers paragraph 59 that the Minister has some expertise Baker
Purpose of Provision and Act as Whole
 intention of leg, when using statutory language that confers broad choices on administrative agencies, that
courts should not lightly interfere with such decisions, and should give considerable respect to DM when
reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a
manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the
legislature, in accordance with the principles of the rule of law (Roncarelli, in line with general principles
of administrative law governing the exercise of discretion, and consistent with the [Charter]”
Nature of Problem in Question
 Involves determination of law or facts? More it involves law the less deference courts will show. Baker
Previous decisions
 Look at what previous courts have decided and what the statute says to ensure that the law and facts were
appropriately considered by the decision maker
Remedial Powers (pay money, restitution, anything in opinion of tribunal to comply with Act)
 Courts see remedial power in admin bodies as related to discretion
 S. 52(1) of Constitution Act 1982 and s. 24(1) of Charter
 OHRC s. 45.2 remedial powers is quasi-constitutional
 2 criteria required to assess damages:
1) objective seriousness of the conduct disc, injury to dignity, self-respect
2) effect of discrimination: Damages high end of the relevant range when the applicant has
experienced particular emotional difficulties as a result of the event Seguin HRTO
 Must structure discretion through guidelines (Arunachalam v Best Buy HRTO, preg discrim, $ order,
draws on Andrews that need uniformitivity to hold cases w/ similar facts should = similar compensation)
Standardization risks:
 Historical inertia
 Can’t personalize and requires quantification of harm (every life worth $50,000)
 Jurisprudence based vs guidelines based
 Egos: adj avoid error through JA
Find decision unreasonable if inappropriate use of discretion
The dm applied the law in a way that is fundamentally inconsistent with the ____. For this reason the decision does
not fall within the range of acceptable outcomes that are defensible of the facts and the law. The interpretation of
the dm was simply unreasonable and must be set aside.
1. Ulterior motives / Bad Faith
 persecution of liquor laws to persecute someone who supports Jehovah Witnesses (Roncarelli)
 Discretion necessarily implies good faith in discharging public duty (Roncarelli)
 The burden of proof is a heavy one. Both the official documents of the city and the circumstances
of the case established bad faith. Landreville v. Town of Boucherville (city used its power to
expropriate with a view to prevent a resident from operating his quarry)
2. Considering irrelevant factors or failing to consider relevant factors
 Officer Lorenz completely dismissive of Ms. Baker’s children and unreasonable as contemplated
in Southam. Did not act in procedurally humanitarian and compassionate way
 No considerations contextual approach to statutory interpretation even though Judge accepts not
implemented and has no direct application of INTL Convention on the Rights of a Child
 GUIDELINES: Not enough to consideration to international guidelines and best interests of
children b/c needs to be primary consideration (Baker)
o Substantive guideliens on sexual violence in IRB
3. Arbitrariness
 Suresh didn’t consider s. 7 considerations enough for risks of torture even though security of
public engaged (page 8)
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CAPS, mental health, domestic work, multiple chidlren (Baker)
Shell: striking down the municipality’s decision not to support Shell’s fucked-up work in Nigeria
Smith & Rhuland: labour board could not deny application to certify a bargaining unit because the
secretary-treasurer was a communist)
4. Fettering discretion
 given wide discretion and interpreted narrowly, improperly contains the scope of the issues and
you are usurping role of legislature, you are to take direction and apply in context intended not to
fetter your discretion (Chu, spent time defining “All” to allow range of personal circumstances)
5. Violate the Charter
 Any decision in violation of Charter is necessary unreasonable (Suresh)
 All grants of discretion include presumption of constitutionality (Slaight (s.1), Baker & Multani)
6. Acting Under Dictation or Influence Wrongful Delegation of Powers
 A decision-maker acting under another’s influence suggest that the exercise of authority was not
empowered by Parliament (Roncarelli)
7. Wrongful Delegation of Powers
 Courts assume discretion is bestowed on the basis of their expertise or particular situation in the
administrative machinery
 An administrative authority must exercise discretion itself
 Illegal sub-delegation of power to make a decision will arise when a decision is made by someone
outside of the statute. (Vic Restaurant v. Montreal City: the city adopted a bylaw that made the
delivery of permits conditional on the authorization of directors including the chief of police)
Remedies
Supplement reasons that have been given w/ own view of why the decision was made, make up reasons
Step 8: Apply the Correctness Standard?
Court in Dunsmuir emphasized that interpretation of law is always contextual as law doesn’t operate in a vacuum

In Dunsmuir, the adjudicator ruled on an area of law he did not have expertise in b/c he ruled on his own
statute PLSRA regarding the dismissal “at pleasure” not the correct common law principles that applied to
the public employment relationship thus standard was correctness
 A legal question which is both (1) of central importance to the legal system and (2) outside of the specialized
area of expertise of the decision maker (Pushpanathan)
 Consider the precedential significance of the decision – there is a need for uniform and consistent answers
o Jurisdictional lines btwn 2 or more competing specialized tribs (far narrower now than in CUPE where
SCC held courts have to understand limited role in admin law and not undermine integrity of OLRB)
 Jurisdiction should be interpreted narrowly, by asking whether the administrative body had
authority to make the inquiry
o The constitution restricts the leg ability to allocate issues to admin bodies in s. 96 of the Constitution Act
1867, div of powers between Fed Parliament and provinces
 GG (fed gov) appointments judges in Superior Courts in 1867, to protect fed exec right to
appoint judges
 This exists to prevent he gov from transferring the work of the courts to admin bodies that are
not independent of the exec and by statute prevent these bodies from effective judicial review
(Binnie concurring judgment Maj in Dunsmuir)
Historical background:
Prior to CUPE, courts sidestepped privative clauses through techniques aimed at turning the matter into a question
of jurisdiction by framing the decision as a “preliminary or collateral question” (Bell) and framing the
administrative body’s inquiry as “asking the wrong question” (Metropolitan Life Insurance).
These doctrines of preliminary or collateral question and asking the wrong question were derided as formalistic,
malleable, and instrumental devices manufactured by courts to meddle in spheres where the legislature had
deliberately excluded them.
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Knowledge of the jurisprudential history of privative clauses remains important for two reasons:
(1) The sources of judicial anxiety about jurisdiction, rooted in the rule of law, remain salient
(2) It is arguable that traces of the preliminary or collateral question and asking the wrong question doctrines
are forgotten but not gone
While CUPE did not break with earlier jurisprudence that invoked jurisdictional error to circumvent privative
clauses, it conveyed a spirit of “curial deference”, a recognition that administrative decision-makers are not merely
inferior tribunals, but specialized bodies possessing a legislative mandate to apply their expertise and experience to
matters that they may be better suited to address than an ordinary court.
CUPE effectively transformed the conceptual basis of substantive review through a reformulation of the
institutional relationship between courts and the administrative state.
CUPE reveals three sources for the SCC’s doctrinal change towards deference:
(1) Courts should recognize and respect the fact that specialized decision makers bear primary responsibility
for implementing their statutory mandate and may be better suited to the interpretive task than the
generalist judge
(2) There are provisions where several plausible interpretations are possible; interpretive choice makes it
possible to question whether the tribunal or the court is better suited to make the choice
(3) Previous failure of judicial efforts to construct a coherent, principled means of distinguishing reviewable
questions from those insulated by a privative clause
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SOR + Charter
Tribunals, as part of government, must consider Charter and Code in all statutory interpretation and how it may
impact decision. Any tribunal with jurisdiction over questions of law also has jurisdiction to look at whole law
including OHRC, Charter and Constitution (Tranchemontagne)
EXTRA: In the past the SCC was reluctant to allow admin bodies to decide Charter issues b/c:
(1) The concern whether or not ADMs can declare a provision in its statute unconstitutional and thus
inapplicable in a specific case before it
o With respect to applying the Charter, a tribunal can decide on the applicability of a provision, but
cannot decide on a provision’s invalidity (Martin & Lasseur)
(2) The concern whether or not ADMs have jurisdiction to issue a Charter s 24(1) remedy
o Where admin body has jurisdiction to decide questions of law, it is presumed to have jurisdiction
to grant Charter remedies unless authority has been removed expressly in statute (Conway)
o Depends on “whether the remedy sought is the kind of remedy that leg intended would fit within
the statutory framework of the particular tribunal”
Step 1: COURT to decide whether statute gave admin body the
authority to determine constitutional/Charter challenges
Nova Scotia v Martin (2003) SCC establishes the rule for determining whether a trib can decided constitutional
issues, and rejects Cooper for straight-forward test and any tribunal that can decide questions based on:
(1) Does the statute give the tribunal, expressly or implicitly, the authority to decide questions of law? If yes
 Jurisdiction to consider Charter
Explicit jurisdiction: “decisions of this tribunal are subject to judicial review on questions of law” (Martin) –
means that the legislature intended for the decision maker to hear questions of law
Implicit jurisdiction (Martin) (Practical considerations cannot override a clear implication from the
statute itself)
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
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Statutory mandate of trib and whether deciding q’s of law is necessary to fulfill mandate effectively
Interaction of tribunal with other aspects of scheme
Whether tribunal is adjudicative
Practical considerations, including the capacity to consider questions of law

DOESN’T ALWAYS APPLY (OUTDATED): Cooper Maj (divided court): need to look at practical
concerns to allow tribunal to make possible decision of constitutional issues.
ALWAYS APPLIES: Dissent McLachlin in Cooper, which is now law in Martin
o The fact that the question of law concerns the effect of the Charterdoes not change the
matter. Charter is not some holy grail which only judicial initiates of the superior courts may
touch. The Charter belongs to the people. Tribunals and commissions charged with deciding
legal issues are no exception. Many more citizens have their rights determined by these tribunals
than by the courts. If Parl makes it clear that a particular tribunal can decide facts and facts alone,
so be it. But if Parl confers on the power to decide questions of law, that power must, in the
absence of counter-indications, be taken to extend to the Charter

(2) If so, does the statute remove, expressly or implicitly, the authority to decide constitutional challenges?
 pointing to an explicit withdrawal of authority to consider the Charter
 convince court that an examination of the statutory scheme clearly leads to the conclusion that the
leg intended to exclude the Charter (or a category of questions that would include the Charter, such as
constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal.
 Court very restrictive with this when it has already been found that the DM has ability to decide Qs of law
(In Tranchemontagne SBT cant look at constitutional issues through s. 67 but never mentioned OHRC)
Policy in Martin deems it Good for Tribunals to Deal with Charter Issues
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Experience with the area and fact finding can improve Charter adjudication
o Application of expertise by way of deference to tribunals and their ruling on HR principles improves
Charter jurisprudence
o Counter: LACK legal expertise
ROL
o Charter is part of the law of the land and has to be considered in making decisions
Courts’ authority over Charter is preserved because JR is on a correctness standard
o No authority for executive branch to apply Charter that’s judicial role  cant have leg body striking
down leg act based on Charter
Desire for access in places where most disputes are heard outweighs the limitations of tribunal expertise and
procedure (McLaughlin in Cooper)
Step 2: If tribunal has leg jurisdiction to decide on Con/Charter,
Court will review the tribunal’s decision on SOR of correctness
Is the decision correct in law? If it is not, the court will substitute its own judgement.


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Trinity Western (balancing of rights issues; determine on correctness standard)
Multani (school board prevented student from wearing kirpan; determine on correctness analysis of
Charter and duty to accommodate)
Chamberlain (school board bans books re same sex couples for kids; determin on reasonableness analysis)
Encumbent on tribunal following Doré methodology to choose interpretation or realm of discretion consistent with
realm of values. To determine whether ADMs have exercised their statutory discretion in accordance with Charter
protections, the review should be in accordance with an administrative law approach, not s. 1 Oakes analysis.
 SOR is reasonableness
Doré Methodology
Test in Oakes doesn’t apply to admin law decisions, although there is "conceptual harmony" between the review
for reasonableness and the Oakes framework. Instead, the question is whether the administrative decision is
reasonable, in that it reflects a proportionate balancing of the Charter rights and values at play.
1) Decision-maker balances the Charter values with the statutory objectives.
i. Stat objectives - In effecting this balancing, the decision-maker should first consider the statutory
objectives
ii. How are the balanced with Charter
2) DM should ask how the Charter value at issue will best be protected in view of the statutory objectives
 Influenced by guidelines of international law
 Pressing and substantial objectives of gov (discretionary power of decision maker and deference to
tribunal) VS Charter rights
In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that
the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives.
If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a
proper balance of the mandate with Charter protection, it is a reasonable one. But both decision-makers and
reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis.
Step 3: Determining if tribunal had jurisdiction to apply OHRC?
Any tribunal with jurisdiction over questions of law also has jurisdiction to look at whole law including OHRC,
Charter and Constitution unless specifically precluded (Tranchemontagne). Ambiguity in the scope of Code
rights should be resolved in favour of protecting matters at the core of Charter rights and freedoms (TaylorBaptiste v Ontario Public Service Employees Union). The legislature envisioned constitutional and Code
related issues as being in different “categories of questions of law”.
27
Legal Analysis for reconciling the Code Right with the Charter Right or freedom
1. Is there an ambiguity in the scope of the Code right?
2. Is the matter at the core of the Charter right or freedom?
3. What is the conflict between the Code right and the Charter right of freedom?
4. Resolve in favour of the Charter.
Tranchemontagne:
SCC: SBT has auth to decide q’s of law incl whether a law is invalid b/c OHRC takes primacy). The appeal should
be allowed. The case is remitted to the SBT for a ruling on the applicability of s. 5(2) of the ODSPA.
Bastarche for Maj: OHRC does not contemplate HRTO as sole arbiter of HR disputes
ON ACCESS  when leg allows tribunals to avoid cases on the assumption the leg gave them insufficient
tools to handle matters within their jurisdiction, the scope of ower should be carefully observed to ensure
trib don’t ignore issues leg intended it to consider
Abella, Deschamps, Lebel (Dissent): ON ACCESS  Imposing OHRC compliance makes it
institutionally incapable of serving dis community SOSSIN: Abella has no record of this
2 elements of OHRC scheme confirm leg intention to differentiate from OHRC Constitution and to confer on
the SBT the jurisdiction to apply the Code.
1. Code has primacy over other legislative enactments, and the legislature has given itself clear directions as
to how this primacy can be eliminated in particular circumstances (s. 47(2)).
2. In light of recent amendments that have removed exclusive jurisdiction over the interpretation and
application of the Code from the OHRCommission and as a result of which the Commission may decline
jurisdiction where an issue would best be adjudicated pursuant to another Act, it would not be appropriate
to seek to restore the Commission’s exclusive jurisdiction
Step 4: When Can Tribunal Grant a Charter Remedy
Tribunals can grant Charter 24(1) remedies (R v Conway (2010) SCC, but didn’t do so for Conway at CMAH).
Where an administrative body has jurisdiction to decide questions of law, it is presumed to have jurisdiction to
grant Charter remedies unless authority has been removed expressly in the statute (R v Conway (2010) SCC)
Conway Test from Abella: for deciding whether a stat gave admin body auth to det constitutional challenges
Depends on “whether the remedy sought is the kind of remedy that the legislature intended would fit within the
statutory framework of the particular tribunal”
1) Does the tribunal have jurisdiction, express or implied, to decide questions of law?
2) Is the remedy sought the kind of remedy that the legislature intended would fit within the statutory
framework of the tribunal?
General Principles
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A tribunal grant a remedy under s. 24(1) of the Charter only if it is a “court of competent jurisdiction”
A tribunal can be a “court of competent jurisdiction (Weber)
Applying a Charter remedy is a broad concept that doesn’t look at each individual remedy but considers the
jurisdiction to apply Charter remedies generally (Conway)
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Public Inquiries and Investigations

Cannot find liability or fault crim or civil
Types of Public Inquires
1. Policy inquiry
 Directed at study of broad issues of social or regulatory concern, with purpose of changing law or policy.
 Activity is legislative in nature in the sense that it is prospective, broad-based or general in impact (not
specific or individualized), and open to political/policy input (not restricted to stringent rules of relevance).
 Protections – most of admin law doesn’t apply. The SCC has ruled that legislative decision making and
“quasi –legislative” decision-making do not attract fair process protections at common law., even where
government officials have created legitimate expectations of fair process..”
 Personnel – no requirement that commissioner have particular expertise or accountability.
 Success is often measured by whether the government implements the recommendations. However
there can be a significant impact on public discourse, even without recommendations being implemented
through research generated and increased public participation.
2. Investigative Inquiry
 Directed at uncovering and reporting on the facts of an event or series of events in which one or more
persons were seriously harmed, or which comprised of an instance of alleged public misconduct.
 Open, public, informal
3. Hybrid Inquiries
Purely investigative inquiries are less common in Canada – many more are a mix of investig and policy functions.
 Arar Inquiry – Mr Arar (a Syrian born Canadian citizen ) was imprisoned and tortured in Syria (CSIS was
involved in giving info) – an inquiry was held into the actions of the Canadian government before and
during his arrest.
Proceedings
 Kent Roach who sees inquiries and investigative context where jeopardy is not proportional to protections.
Since no criminal conviction or civil liability in inquiry so if you decide not to give forthcoming testimony
you are held in contempt. Roach sees it as just as damaging b/c your opinions can have consequences.
 Freya: not adversarial common law system, media coverage and people are engaged, understands Roach’s
concerns but doesn’t agree
 Gov can or may not adopt recommendations, requires political will
o Criteria of success
o Political dynamics impact changes: In Goudge inquest, leg came 30 after report b/c same gov
Public inquiries are a special mechanism of investigation into tragic or scandalous events associated with the
government. These inquiries usually take place because of a lack of public trust in the government.
Public inquiries serve two primary functions: (1) truth seeking, in terms of figuring out what went wrong, and (2) to
produce recommendations as to what can be done from a policy standpoint to make sure that the event is avoided in
the future – cannot issue criminal or civil remedies (therefore, not dispositive).
The role of the courts in public inquiries is to ensure that an inquiry is not used as a substitute for the criminal
process, and that risks to individual rights are minimized.
Can have a great impact on political opinion, reputation, etc.. Relevant questions when considering when a public
inquiry is necessary (questions better suited for the government to answer, not courts):
 Is there a broad and compelling purpose beyond investigating suspected misconduct of individuals?
 Is there sufficient public concern to warrant an inquiry with coercive powers?
 Should the exercise of those powers be delayed until after the criminal process is complete, or is the
demand for answers so overwhelming that an inquiry should proceed immediately?
The commissioner has a duty to get to the truth – sense of independence is essential to the value of an inquiry,
especially where the state or its representatives are involved
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In order to avoid the criticism that the commissioner was “soft” or endorsed a cover up
The commissioner has coercive investigative powers (able to compel witnesses to testify and obtain search
warrants to compel the production of relevant documents
o The failure to use these powers where warranted can undermine an inquiry’s credibility
Coercive powers are important for the following reasons:
o (1) Credible fact finding
o (2) Assist in the production of useful and compelling recommendations
 Note that the use of coercive powers must be guided by caution, as the exercise of these
investigative powers necessarily intrudes on people’s lives
It is for the government to decide how coercive a commissioner can be; witnesses may be compelled at
public inquiries regardless of whether they may be prosecuted for conduct under investigation before the
inquiry (Phillips)
o Especially relevant in cases where there may be criminal proceedings as well
o As per Cory J’s reasons in Phillips, it is for the state to decide whether the risk of a lack of criminal
proceedings is worth having individuals testify in an inquiry
 Evidence given before the criminal trial will likely be excluded
 Witnesses will be more forthcoming in an inquiry because the focus is not on individual
culpability
 Some inquiries may be time-sensitive in terms of authority, public perception
The duty to provide notice:
 When a commissioner is required to provide notices of potential findings of misconduct is decided on a
contextual basis (Blood Inquiry)
o In Bloody Inquiry, notices were delivered confidentially at the conclusion of the inquiry, but all of
the parties either (1) had standing before the inquiry (opportunity to participate in the hearings); or
(2) had opted not to apply for standing but were otherwise well aware of the inquiry’s progress and
had participated as witnesses
o Note that, because the notices were delivered confidentially, the issuance of the notices did not
affect the involved persons’ reputations
 Note that there is a danger that those seeking judicial review may do so in order to delay an inquiry,
damaging the inquiry’s authority in the public eye
 Also note that, if one is under the belief that significant portions of a report unfairly portray that person, he
or she can have portions of the report struck
Notes:
 To ensure that a wide range of information can be considered, the process is not bound by strict rules of
evidence
 The commissioner’s findings and recommendations are not subject to appeal
 Alternatives to public inquiry:
o Criminal trial
 Different functions – determining criminal culpability v fact finding
 Consider the criminal trial’s protections of the accused and how this would affect the
generation of information
 Dealing with matters appropriate for public inquiries through the criminal process would
put forward the notion that social problems can be dealt with by finding the right
scapegoats
o Political alternative
 Similar to public inquiries except for the lack of broad, coercive investigative powers (such
as royal commissions)
 May be appropriate in the majority of cases where the relevant issues do not demand a
thorough and independent investigation
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Standing
Standing refers to who can bring a claim. “By granting standing, a court indicates that it is prepared to place a
certain value on an interest and protect it by allowing it to be the subject of litigation, and that the individual or
group seeking to litigate is not disputing something of, for example, merely idiosyncratic interest” (Walker and
Sossin). Rules regarding standing address three concerns:
(1) The proper allocation of scarce judicial resources
(2) The prevention of vexatious suits “brought at the behest of mere ‘busybodies’” and
(3) The particular requirements of the adversary system
Traditionally, the common law limited standing in judicial review to individuals whose private rights (ie contract,
tort, property, physical liberty) were directly affected by government action or decision.
 Standing did not extend to any other privileges we recognize today such as entitlement to receive social
benefits pursuant to a statute
 Similarly, no standing was afforded where the public interest alone was at stake; this was solely within the
AG’s purview
Currently, what constitutes private standing is interpreted narrowly. In Downtown Eastside, for example, private
standing was not recognized because the claimants were no longer engaged in sex work and the prior stigma of
their past involvement was not sufficient for private standing.
 This narrow interpretation was problematic here because this case involved three provisions—which one
could not be charged with simultaneously—which, when taken together, amounted to a Charter violation.
The restrictive interpretation of private standing made it difficult to find a representative plaintiff
 Public interest standing was, however, granted
For public interest standing to be recognized, three criteria need to be met (Finlay):
(1) There needs to be a serious legal issue capable of being litigated (justiciability requirement)
(2) There has to be a genuine interest
(3) There has to be a consideration of whether this is the only reasonably effective way for these matters to be
brought into court
a. Most cases fail at this stage: “Granting of public interest standing is not required when, on a
balance of probabilities, it can be shown that the measure will be subject to attack by a private
litigant” (Canadian Council of Churches)
b. Consider alternative government accountability mechanisms for judicial review:
i. Legislative oversight:
1. questions in the House, legislative committees that can compel witnesses to testify
in public under oath, investigation by MPs
ii. External executive oversight:
1. Police investigation/prosecution, independent audits, review by the ombudsman,
public inquiries
iii. Internal executive oversight:
1. Investigations by an investigator authorized by the minister or other senior
officials, employment disciplines, cultural checks in the workplace/profession
iv. Extra-governmental oversight:
1. Media, lobby organizations, civil society
Debate regarding the expansion of participatory rights in public law:
 For:
o Litigation is expensive; the most vulnerable among us might not have a viable opportunity to bring
an action forward
o Might be issues about the authority of the government to act at all; this might be difficult to
challenge in a private case (presents a way to regulate the executive)
 Against:
o Tax on the judicial system; could flood the court with claims, even if frivolous cases are set aside
o Impact on conventional framework of adversarial litigation
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
o
When people have private interests they are incentivized to put forward the best possible
arguments
“Politicization” of courts and danger that only those already well-positioned to defend their
interests in the public realm will benefit from wider legal access to the courts
 There is a reason why we have the executive, legislature, and judiciary; there are distinct
advantages to each branch and they are focused on particular issues
 Once courts go into the realm of affecting large constituencies, then perhaps such decisions
should be left to other branches
Relevant Statutes
Public Inquiries Act s 5(1)
 “A commission shall accord any person who satisfies it that the person has substantial and direct interest
in the subject-matter of its inquiry an opportunity during the inquiry to give evidence and to call and
examine or to cross-examine witnesses personally or by counsel on evidence relevant to the person’s
interest.”
o Most likely interest: not going to jail or receiving damages; the interest here is also reputational
o The test is drawn from common law on rules of standing for inquiries and even further back in
history: coroner’s interests
Federal Courts Act s 18.1(1)
 “An application for judicial review may be made by the Attorney General of Canada or by anyone directly
affected by the matter in respect of which relief is sought”
o FCA appears to be reflecting the historical position. AG always has standing if he or she wishes
Statutory Powers Procedures Act s 5
 “The parties to a proceeding shall be the persons specified as parties by or under the statute under which
the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding”
o Adjudicative tribunals are generally overseen by the SPPA
o “entitled by law”= reference to the common law (legal interest recognized by previous cases
o Very similar to the FCA
Peter Carver - Getting the Story Out: Accountability and the Law of Public Inquiries
To provide transparency and accountability
 Fact-finding (retrospective) and (prospective) policy-making
 Other suggested purposes: informing and educating government and the public, providing a measure of
restorative justice to victim of mistreatment, and socio-democratic goal of fostering government ethics
in activity.
 Note that both admin law and public inquiries serve the important function of making government
operations transparent and responsible to the public. However, as a mode of accountability, judicial
review suffers from some of the limitations of most formal legal processes – it is aimed at specific acts
of governmental decision making and cannot provide systemic remedies/suggestions for policy. PI
provide alternative recourse for those aggrieved by alleged government misconduct.
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Critiques of Inquiries
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Cumbersome, lengthy, expensive
o Chretien used this argument re shutting down the Somalia Inquiry
Threat to the rights of individuals – coercive investigative powers outside of the normal judicial process
Political deflection- governments have been accused of establishing PI in order to forestall having to make
decisions on complex or controversial social issues.
Expense and judicialisation – involvement of lawyers involves expenditure of time and money due to use
of trial-like procedures – influence of legal profession should be reduced where it is least needed (policy
inquiries).
Public Inquiries and Public Benefit
 Note the ability to enhance public accountability – eg missing women’s inquiry
 Questioning things and processes and assumptions of good faith that are often unclear where abuse occurs.
Van Harten Article
 Should exist, but not thrive, in the Charter era
 Should only be established in cases where there is a grave public concern about an event with broad
ranging tragic or scandalous consequences
Krever Commission (Canada Blood Services)
COREY: “a commission of inquiry is neither a criminal trial nor a civil action for the determination of
liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an
investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation
are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They
are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the
evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a
commissioner. They are not enforceable and do not bind courts considering the same subject matter.”
Interests Threatened by Public Inquiries
 Must balance:
1. The rights of individuals facing criminal charges– in Starr, the court confirmed that PI are not
permitted to make findings of civil or criminal inability against individuals. Phillips though
highlights the need for compelled testimony in a PI.
2. Consider the reputational interests of those whose conduct may be called into question.
 Power of inquiry as instrument of accountability has to be balanced against what is at stake for those
individuals whose decisions, actions, and lives are at the hearty of any particular investigation, which
includes those described as victims who suffered harm as a consequence of government action/inaction.
 Krever Commission and Phillips both written by J Cory – sent the message that the public interest
value of investigative inquiries outweighs concerns about their potential harm to individual
witnesses and subjects of the investigation.
Constitutional Issues – Individuals Facing Criminal Charges
Division of powers has played a role in limiting the authority of provinces to establish public inquiries directed at
establishing individual responsibility for acts of a potentially criminal nature.
An Inquiry will be held ultra vires if it turns into a criminal investigation: Starr v Houlden
Facts: Ontario public inquiry was called to inquire into the actions of an individual and private corporation
involved in political fund-raising activities. Accused argued that although this was framed as a PI, this was
essentially a criminal investigation by other means.
ANALYSIS:
- The inquiry’s terms of reference prohibited commissioner from making a finding of criminal liability, but
authorized him to state whether the individual had acted in ways that were described as a breach of an
offence set out in the CC.
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-
Majority held that this effectively turned PI into substitute police investigation and prosecution without
protection of those procedures, and this was ultra vires the provincial government.
The pith and substance was alleged criminal wrongdoing by individuals and this infringed on the federal
government’s criminal law power.
It is not a violation of s.11 of the Charter (a fair trial – no self-incrimination) to be a witness at a Public
Inquiry: Phillips
Facts: two witnesses argued that it would breach their Charter rights against self-incrimination to be compelled to
testify at the inquiry in advance of any criminal trial, and that the publicity attending the hearings and findings of
inquiry would deny them a fair trial pursuant to s.11(d). They wanted subpoenas for public inquiry squashed.
ANALYSIS by Cory J for Min:
 witnesses should be compellable at PI, irrespective of whether they may be subject to prosecution for
the same acts being investigated at PI, as long as inquiry serves a legitimate public purpose (not
intended as substitute form of criminal investigation).
o Charter protection under s.13 prohibits use person’s testimony in subsequent crim proceedings
against them and s.7, which provides “derivative use immunity” barring Crown from introducing
evid into a criminal trial that would not have been obtained “but for” the compelled testimony
- “In some circumstances, proceeding with the public inquiry may so jeopardize the criminal trial of a witness
called at the inquiry that it may be stayed or result in important evidence being held to be inadmissible at the
criminal trial. In those situations, it is executive branch of government that should make the decision
whether to proceed with PI. That decision should not, except in rare circumstances, be set aside by a court.”
Reputational Interests
 Damage to a person’s reputation may result just by having name mentioned
 Krever Commission- Canadian blood system’s use of tainted blood products. The SCC confirmed that
the potential harm to reputation justified procedural protections at common law including
adequate notice. This right could enhance or “fill out” rights set out in the statute. The court concluded
commissioner Krever had provided reasonable notice and opportunity to respond.
 The court also distinuguished Starr – an inquiry making findings of “misconduct” is permissible while
findings of civil or criminal liability are not.
Public Inquiries and Administrative Law Principles: Establishing an Inquiry
Delegation of Authority
 Inquiries are appointed pursuant to the statutory provisions and clothed with the powers expressly set
out by the statute.
 They set out the nature of matters that may be the subject of an inquiry and grant powers of compulsion
to commissioners.
 Federal Inquiries Act, as well as provincial statutes.
Appointing Commissioners
 Governments can appoint whoever they want - With respect to investigative inquiries, it is a common
practice to appoint sitting or retired justices of a superior court.
 Because Canada does not operate on a strict separation of powers basis, members of judiciary can carry out
executive functions (this would be unconstitutional in US). Note that this was decided by the judiciary.
 Canadian Judicial Council (CJC) – requests should always be made by government first to the chief justice
not the individual judge. Considerations include time away from judicial duties and the terms of reference.
 Commission Counsel in a Public Inquiry Role
o Under the direction of the commissioner and your actions are attributable to the commissioner
o The appointment of commission counsel is completely within the discretion of the commissioner –
generally lawyers who are fair, capable etc.
o You advise the commissioner on any issue that arises
 Procedures – fair procedures make a very big difference to how a proceeding will unfold.
The lack of funding for participants in the inquiry immediately has the potential to
undermine the process.
o Call witnesses, do examination and cross-examintion. Time allotted for the other parties to ask
questions of the witnesses etc
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Terms of Reference
 Terms of reference is the inquiry mandate- what is scope and ambit of inquiry?
 By setting the terms of reference, governments exercise significant control over how far-reaching an
inquiry will be.
 Represent the law of the inquiry and have binding force on inquiry commissioner.
 One of challenges to reports of commission is that they have exceeded jurisdiction.
 The commissioner of an inquiry plays an important role in interpreting the terms of reference. This
interpretation is subject to judicial review.
Independence of Inquiries
 The credibility and effectiveness of an inquiry depends on the degree to which it is and appears to be
independent of the executive government.
 While the principle of judicial independence protects judicial careers of judges serving as commissioners
of inquiry, it does not likely extend to an inquiry itself, because they are agencies of the executive.
Reasonable Apprehension of Bias
 The appointment of a particular individual as commissioner might be challenged on grounds of bias should
that person have prior involvement with interested parties or a conflict of interest during an inquiry.
 Sponsorship Inquiry
o Chretien challenged Commissioner Gomer’s impartiality – cited a number of negative statements
made to media during PI. Court found that the statements created reasonable apprehension of bias
both with respect to prejudgment of issues before hearing all the evidence, and with respect to a
predisposition against C personally.
 Case Principle: a relaxed bias standard is appropriate: Somalia Inquiry
o Fed CA decided that bc an inquiry is not an adjudicative process, a more relaxed bias
standard is appropriate: “depending on its nature, mandate and function, the Somalia Inquiry
must be situated along the Newfoundland Telephone spectrum somewhere between its legislative
and adjudicative extremes. Because of the significant differences between this inquiry and a civil
or criminal proceeding, the adjudicative extreme would be inappropriate in this case. On the other
hand, in view of the serious consequences that the report of a Commission may have for those who
have been served with a section 13 Notice, the permissive "closed mind" standard at the legislative
extreme would also be inappropriate. We are of the opinion that the Commissioners of the
Somalia Inquiry must perform their duties in a way which, having regard to the special
nature of their functions, does not give rise to a reasonable apprehension of bias.”
Procedural Fairness
Duty of Fairness
o Investigations directed at ascertaining evidence, but not at the determination of legal rights and obligations,
are not always subject to common-law rules of fair process.
o General duty of fairness applies to public inquiries, how it applies though, will be contextual.
o Courts have frequently held that the investigative nature of PI and fact that they do not have decisionmaking power mean that they are subject to relaxed procedural standards and rules of evidence. The
question each time is whether this is appropriate in light of the individual interests at stake in a
particular inquiry.
Inquisitorial Process
o Role of commissioner is not to be judge as in adjudicative process. Not a passive role for commissionerrequired to be active and involved. Commissioners, as opposed to parties, decide what evidence to call.
o In the absence of express statutory power to make procedural regulations, the rules adopted by an inquiry
should be subject to judicial review for compliance with procedural fairness, either as a general matter
or in specific applications.
Standing
o Scope of participation- right to be a party in action
o In courts, this is all or nothing- have to have direct interest in outcome, or no standing.
o More nuanced in PI – standing can be granted in degrees, both in terms of the scope of participation
(whether get to call witnesses, cross-examine etc.) and in terms of duration (whether person only has rights
for some parts of inquiry and not for others).
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Legal Representation
o Section 12 of Federal Inquiries Act makes counsel representation a statutory right with respect to persons
who are the subject of an investigation.
o Subject to the requirements of fairness, whether witnesses called to testify at Pi are entitled to be represented
by counsel is a matter for commissioners to decide depending on nature of inquiry and evidence being
sought.
o In limited case of Blencoe, court said there was requirement for state to provide counsel. Same rule applies
to PI-- as general rule, no requirement to provide counsel, but limited cases where certain people might be
entitled to state funded counsel.
 Decision for government to make on inquiry-by-inquiry basis.
o Commission counsel is appointed by commissioner of inquiry to act on his or her behalf.
 Counsel must act in an impartial fashion that does not create an impression that the proceedings are
adversarial.
 They play an important role in questioning and investigating witnesses on behalf of the inquiry.
Notice and Opportunity to Respond
o Federal Inquiry Act requires that any person about whom a finding of misconduct may be made in a
final report must be notified in advance and given an opportunity to respond.
o s.13 is a statutory embodiment of minimal fairness duty to give notice and an opportunity to be heard to
persons who may be adversely affected by an inquiry’s findings.
Disclosure
o Internal disclosure- commission itself has fairly strong powers to obtain documents and material from
government. External disclosure- assumption is that commission should make documents and material
available to public, but some exceptions.
o McKeighan (1989): Nova Scotia public inquiry held into the wrongful murder conviction of Donald
Marshall sought to compel testimony and notes concerning the deliberations of NSCA at the time when that
court had conducted a review of DM’s conviction.
 SCC concluded that as a matter of judicial independence (a constitutional principle), judges
cannot be summoned to answer questions concerning their deliberations.
Conducting Hearings in Public
o For procedural fairness, the PI is seen to be an open and public event.
o Sometimes before witnesses give evidence before public inquiry they must meet with commission counsel
who will prepare witnesses and run through types of questions going to be asked. If done in court, this
would be unacceptable. In PI this is desirable bc it streamlines the operation.
o Courts have said there has to be compelling reasons for public inquiries to operate behind closed doors,
because this can undermine the purpose and credibility of PI.
 General rule is that PI should be held in public unless there are strong counterbalancing factors that
militate in favour of in camera proceedings (e.g. children giving evidence, national security).
 However, even in these circumstances there is requirement that commission provide general
summary of the evidence given.
Substantive Review
Inquiry Commission’s Interpretation of Terms of Reference
o Jurisdiction – can only operate in your jurisdiction- if you operate outside, operating inappropriately.
o No guidance on what standard of review will be applied when interpreting terms of reference, but Hutch
says courts, according to Dunsmuir, will likely apply reasonableness standard (unless issue of true
jurisdiction).
 Similar to deference accorded to tribunals when interpreting their own enabling statutes.
Inquiry’s Findings and Recommendations
o In Dunsmuir, court made it clear that fact-based determinations call for reasonableness or def review
o PI produced only findings of fact and policy recommendations, not decisions with legal consequences.
Presumably inquiry reports would attract deferential review, if they are reviewable at all.
 Presumably judicial review limited re PI bc unlikely to be deciding any matters of central matters
to the legal system bc not intended to be a court in that way.
o What remedies would be available if an applicant was successful in a substantive challenge to PI’s
findings?
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

People can’t bring review until report is made available. But once out there, some would say that
damage has already been done.
Morneault (1998): remedy was a declaration that Commission’s findings against applicant set
out in its report were invalid.
Inquests: General Principles
 Conducted under the Coroners Act. The idea is conducting death inquests to show that deaths will not be
ignored and will allow for prevention.
 There is a Jury – 5 questions (required by oath) & Recommendations
Stephen Goudge, “Reflections” in L. Jacobs & S. Bagley (eds.), The Nature of Inquisitorial Processes in
Administrative Regimes: Global Perspectives
 This inquiry lasted for 17 months – article looks at the objectives of efficiency and fairness.
 Typically governments establish public inquiries in response to significant public controversies about the
propriety of government activity, or significant public concern about particular tragic events.
 Forensic pathology often vital in determining the success or failure of the system in dealing with cases
where children have been killed.
Facts
 Dr Charles Smith was the preeminent forensic pathologist instances where he made clear mistakes (that
often lead to wrongful convictions) came to light and there was a review of all his cases by international
peers. 20 of his 45 cases were questionable.
 Failings throughout the criminal justice system – of which one concern was that there were too few, poorly
trained forensic pathologists.
Setting up
 A pro – able to help shape the mandate of the tribunal – but this could lead to a problem of interpreting that
which you drafted (fortunately wasn’t a problem for Goudge here)
 Inquiry could look at overview reports in lieu of witnesses, could choose counsel staff and expertise etc
within its budget, could provide counselling to victim’s services etc.
 Commissioner’s counsel – Linda Rothstein
 The inquiry had its own research program – Prof Kent Roach (UofT) and Dean Sossin
 Had to reconcile and deal with the views of different parties
 Preparations included meeting with the families of the victims. Confidential – could see the benefits of a
truth and reconciliation process.
The Hearing Process
 Efficiency important – using public funds, want to determine recommendations ASAP and make changes to
the system
 Fairness – many facts were contested and public reputations were at stake
 60 day hearing – 5 days a week
 Time limits on counsel, including commissioner’s counsel.
Development of Policy Recommendations
 18 roundtables discussing different issues with panelists of varying expertise.
 Commissioner writes report
 Having delivered it – it would be inappropriate to comment on the response of government as the judiciary
needs to stay out of politics. Don’t think he is limited in the same respect re recommendations for counsel
and the court.
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Tribunals
This section examines agencies, boards, commissions and tribunals, their empowering statutory regimes and
structure (whether adjudicative, regulatory or inquisitorial), their accountability through the courts and other
bodies, and their role in the policy process
General Principles
 Note the tension between discretion and consistency in tribunal decision making.
APPOINTMENT TO ADJUDICATIVE TRIBUNALS
Adjudicative tribunal members to be selected by competitive, merit-based process
14. (1) The selection process for the appointment of members to an adjudicative tribunal shall be a
competitive, merit-based process and the criteria to be applied in assessing candidates shall include the
following:
1.
Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.
2.
Aptitude for impartial adjudication.
3.
Aptitude for applying alternative adjudicative practices and procedures that may be set out in the
tribunal’s rules. 2009, c. 33, Sched. 5, s. 14 (1).
Tribunal-specific qualifications
(2) If a member of an adjudicative tribunal is required by or under any other Act to possess specific
qualifications, a person shall not be appointed to the tribunal unless he or she possesses those qualifications.
2009, c. 33, Sched. 5, s. 14 (2).
Publication
(3) The responsible minister of an adjudicative tribunal shall make public the recruitment process to select
one or more persons to be appointed to the tribunal and in doing so shall specify,
(a) the steps intended to be taken in the recruitment process; and
(b) the skills, knowledge, experience, other attributes and specific qualifications required of a person to be
appointed. 2009, c. 33, Sched. 5, s. 14 (3).
Chair to recommend appointments, reappointments
(4) No person shall be appointed or reappointed to an adjudicative tribunal unless the chair of the tribunal,
after being consulted as to his or her assessment of the person’s qualifications under subsections (1) and (2) and,
in the case of a reappointment, of the member’s performance of his or her duties on the tribunal, recommends
that the person be appointed or reappointed. 2009, c. 33, Sched. 5, s. 14 (4).
Conflict with other Acts, regulations
(5) In the event of any conflict between this section and a provision of another Act or of a regulation made
under another Act respecting the appointment of members of an adjudicative tribunal, the provision of the other
Act or regulation prevails. 2009, c. 33, Sched. 5, s. 14 (5).
Accountability
Requires mandate, mission statement, consultation, policy, service standard policy, ethics plan, member
accountability framework (job description, qualifications), memorandum of understanding, business plan, annual
report.
Remedial Powers: OHRC
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the
Tribunal determines that a party to the application has infringed a right under Part I of another party to the
application:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose
right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings
and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was
infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution
for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything (BROAD DISCRETION) that, in the
opinion of the Tribunal, the party ought to do to promote compliance with this Act. 2006, c. 30, s. 5.
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Orders under par. 3 of subs. (1)
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
Tribunal Reform Case Study: Ontario Human Rights System
Some Issues Motivating Reform
Prior to 2008 the commission controlled access to the tribunal. Without approval the case would end there.
 Delay in the Commission system
 Multiple roles for the Commission: advocate and decision maker
 Access: concern that possibility of a full decision not be restricted
 Transparency: development of jurisprudence and decisions made in public
The Reform
 Direct Access to a tribunal
 Funding of legal support centre to represent applicants
 Focus of the Commission on policy work
 The ability to go to court was opened up – if you had another issue (wrongful dismissal) you could add a
human rights complaint to it. This was prescribed by statute
 Within the Tribunal:
o Use of alternatives to traditional adjudicative processes and practices
 A view that different processes move away from adversarialism. Encourage innovation by
adjudicators to process the cases considering there is no longer any publicly funded
investigation.
o Focus on accessibility of the system – eg have things in plain language
o Adjudicators as mediators
 Giving the parties a chance to hear from parties that would be adjudicating. etc
o Active case management to focus on the key issues
David Wright - Implementing the New Human Rights Code: A tribunal perspective
The Nature of Human Rights Cases
 As noted in the introduction, the majority of HRTO cases arise in the workplace. Disability is by far
the most frequently cited ground, raised in over half of all applications. It is followed by reprisal, sex
and race, all of which were relied upon in between 20 and 25% of applications.
Key Features of the HRTO Dispute Resolution Model
 The application and response stage, which involves detailed forms, the requirement for a complete
description of the party’s case, and review and delivery of pleadings by the Tribunal. While it involves
significant up-front work for the parties and HRTO staff, this allows the tribunal to provide active case
management throughout the process with an understanding of the parties’ cases.
 The application and response forms ask the parties if they agree to mediation. If there are no preliminary
issues that the Tribunal believes should be decided before mediation is held, a half-day mediation is
scheduled if the parties have agreed. If one or both parties have not agreed, and the case appears
appropriate for mediation, a duty vice-chair will call them to explain the process and encourage mediation.
o Tribunal adjudicators conduct all mediations, but will not be assigned to hear a matter they have
mediated (unless the parties have agreed to mediation-adjudication). The use of adjudicators has
various strengths. It allows the parties to tell their story to someone in authority with an
appointment as a human rights adjudicator. Parties receive feedback about the strengths and
weaknesses of their case from an adjudicator.
 Merits Hearing: If no settlement is reached at mediation, or if the parties have not agreed to mediation, the
application is scheduled for hearing.
o The tribunal assigns an adjudicator to the merits hearing earlier than many other tribunals and
courts, to facilitate case management. In most cases, the adjudicator is assigned just before the 45
day deadline for witness statements and the filing of documents.


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Case Assessment Directions in advance of the hearing may also raise issues identified by the adjudicator
that the parties should be prepared to address at or before the hearing, note types of evidence that may be
required or advisable (for example, medical evidence for a self-represented applicant who may have been
unaware of the need to call such evidence), to give just some examples.
The Tribunal has extensive powers to use alternatives to traditional adjudicative processes and practices at
hearings. Techniques that are used regularly include mediation-adjudication with consent of the parties, the
adoption of written witness statements as evidence-in-chief, questioning of witnesses by the adjudicator,
modification of the order of witnesses, limiting the extent of evidence on a particular issue and the giving
of evidence by telephone.
o The Code directs the Tribunal, in s. 41, to adopt procedures and practices that offer the best
opportunity for a “fair, just and expeditious resolution of the merits of the matters before it” and
this principle guides the interpretation of the Rules (Rule 1.1). The Tribunal is specifically
empowered to adopt practices or procedures “that are alternatives to traditional adjudicative or
adversarial procedures” (s. 43(3)(a) and Rule 1.6). In particular, the Tribunal is empowered to
define and narrow the issues and to determine the order in which the issues and evidence will be
presented (s. 43(3)(b) and Rule 1.7 (g) and (h)).
o Mediation-adjudication was formally added to the tribunal rules in mid-2010. (Rules of
Procedure, Rule 15A) It is offered by the adjudicator in most cases and frequently requested by
parties. A large number of cases settle through mediation-adjudication on the first day of hearing
and sometimes later. This process has also assisted the tribunal in more effectively using its
resources
Interpretation of Part and rules
41. This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices
and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion
of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
Statutory Powers Procedure Act
42. (1) The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal
unless they conflict with a provision of this Act, the regulations or the Tribunal rules.
Conflict
(2) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal
rules prevail over the provisions of that Act with which they conflict.
Tribunal rules
43. (1) The Tribunal may make rules governing the practice and procedure before it.
Required practices and procedures
(2) The rules shall ensure that the following requirements are met with respect to any proceeding before the
Tribunal:
1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without
affording the parties an opportunity to make oral submissions in accordance with the rules.
2. An application may not be finally disposed of without written reasons.
Same
(3) Without limiting the generality of subsection (1), the Tribunal rules may,
(a) provide for and require the use of hearings or of practices and procedures that are provided for under
the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial
procedures;
(b) authorize the Tribunal to,
(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions
of the parties on such issues, and
(ii) determine the order in which the issues and evidence in a proceeding will be presented;
(c) authorize the Tribunal to conduct examinations in chief or cross-examinations of a witness;
(d) prescribe the stages of its processes at which preliminary, procedural or interlocutory matters will be
determined;
(e) authorize the Tribunal to make or cause to be made such examinations of records and such other inquiries as
it considers necessary in the circumstances;
(f) authorize the Tribunal to require a party to a proceeding or another person to,
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(i) produce any document, information or thing and provide such assistance as is reasonably necessary,
including using any data storage, processing or retrieval device or system, to produce the information in any
form,
(ii) provide a statement or oral or affidavit evidence, or
(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within
the party’s control; and
(g) govern any matter prescribed by the regulations
Law Society of Upper Canada, Tribunals Committee, Hearing Process Report (Executive Summary)
Some Issues Motivating Reform
- Quality of decision making; number of appeals
- Perception of lack of independence
- Scheduling challenges with part-time adjudicators
- Overlap of functions between governance, adjudicative roles
- Delay, inconsistency
Mandate of the Law Society
The Law Society’s primary responsibility as regulator of Ontario’s lawyers and paralegals is public protection.
Central to the responsibility to protect the public is a hearing process that is fair, transparent and efficient. As
hearings become more complex and the number of cases increases, it is important to enhance the way in which the
Law Society meets its regulatory mandate at the tribunal level.
To carry out its commitment to an adjudicative system that is as effective and transparent as possible, and to
continue the ongoing process of reform that the Law Society has followed over the last decade, it is essential that
the Law Society develop a more systematic and effective structure and greater quality assurance measures
for its adjudication functions. In doing so, it should pay attention to the principles that govern both administrative
justice and professional regulation and to the important role of benchers in the process.
The Solution
 Full time Chair, independent (not a bencher)
 Increased use of appointees who are not benchers and with experience as adjudicators
 Building an independent tribunal within the law society
 Performance evaluation
 Focus in the first six months includes:
o Decision review
o Strategic assignment of panels
o Independent identity
o Consultation with stakeholders
o Case Management
The Model
The Tribunals Committee, with the assistance of its Hearings Process Working Group, has developed a proposal for
an enhanced adjudicative model whose component parts will operate together as an integrated whole. The model
will consist of,
 effective and dedicated leadership of the Tribunal through the appointment of a non- bencher fulltime lawyer Chair and two part-time bencher Vice-Chairs of the Hearing and Appeal Panels;
 an adjudicator application and appointment process that continues to reflect the regulatory role of the
Law Society’s benchers in adjudication as well as a commitment to broaden its base of adjudicators
to include non-bencher lawyers and paralegals and lay appointees who meet the many needs of the
Tribunal;
 the development and implementation of consistent criteria for appointment to the Tribunal and an
evaluation process for re-appointment;
 the continuation of the Tribunals Committee as the policy conduit by which the Chair, Vice-Chairs
and committee members facilitate and provide policy proposals to Convocation; and
 processes to ensure timely adjudication and decision-making.
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J. Baxter & L. Sossin - “Ontario's Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for
Administrative Justice” (2012)
D. Wright, “Implementing the Human Rights Code: A Tribunal Perspective” (Forthcoming, Canadian
Labour and Employment Law Journal)
 In some jurisdictions like the UK tribunals fall under the judiciary, in Canada the SCC has confirmed that
tribunals are part of the executive branch of government
 Adjudicative Tribunals Accountability, Governance and Appointments Act (Tribunals Act) proposes a novel
strategy for structural reform called tribunal clustering, which groups related tribunals together, but keeps
their respective statutory mandates and memberships intact and encourages them to connect along a range
of shared characteristics. The resulting cluster organisations aim to capture intersections in tribunals’
logistical, procedural, and substantive adjudicatory features and to reinforce links between
constituencies of tribunal users.
 Using modernisation efforts in Australia and the UK as a counterpoint, we argue that Ontario’s strategy is
founded on a distinctive idea of institutional change designed to make the tribunal system flexible, more
adaptive and thus progressively more effective at delivering administrative justice services to its users.
 Claimants who come to administrative tribunals in Canada, as elsewhere, may find their statutory
entitlements and legal rights are fragmented between bodies with diverse norms and mandates.
 J Whitaker’s final report introduced the tribunal cluster as ‘the grouping together of different tribunals that
work in related areas and deal with related subject matter’. The goal of clustering, according to the report,
was ‘to improve the quality of services offered to the public by sharing resources, expertise and
administrative and professional support’.
 Who benefits? If the savings from clustering are reinvested in enhancing the quality of administrative
justice, then the beneficiaries will be the tribunals themselves and, more importantly, the parties who come
before them.
 Access to Justice - Individuals are looking to these tribunals as simpler and more economical avenues to
review administrative decision making and to resolve their disputes, free from the many formal trappings
of the law courts
o Consider the low-income individual in Ontario who faces a challenge in obtaining social benefits
and is in a dispute with her landlord. That individual needs to navigate both the Social Benefits
Tribunal and the Landlord Tenant Board’s procedures and rules.
The Social Justice Tribunals Cluster
- In its first two years, the establishment of SJTO has led to an enhancement of HRTO’s new adjudicator
training and professional development programs. New common rules that form part of the rules of
procedure of each tribunal have been developed, setting out adjudicative values, interpretive principles,
procedures for the appointment of litigation guardians, and rules on representation, among other things.
Adjudicators have been cross-appointed between HRTO and all of the other tribunals, enhancing our
adjudicative capacity on issues of rental housing, special education, social assistance law and adjudication
of cases involving children.
- The conception and design of an adjudicative and administrative group that would deal with cases in
different tribunals involving children is in the process of being designed, and administrative and
adjudicative management of the Ontario Special Education Tribunals has already been integrated with
HRTO. Further developments as a result of clustering, including co-location of the tribunals’
administrative offices, will be among the significant changes to the HRTO in the coming years.
Adjudicative Tribunals Accountability, Governance and Appointments Act (ATAGA) 2009
Rationale for Reforms
 Concerns about accountability of government agencies (not just tribunals) – like ehealth, ORNGE
 Lack of standard for appointments – sometimes tribunals used as places used for government patronage
 Concern that administrative justice was too fractured, and specialization negatively affected the users,
access to justice.
o Tribunals developing on their own without consistent approach?
o Cost to government of certain tribunals (eg special education) is it justified for 2 hearings a year?
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o
Goal of a middle ground in reform between British/Australian systems and lack of cohesion
 All tribunals together under the supervision of a judge in Australia for eg
The Reform: Tribunal Clustering
 The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, allows the Lieutenant
Governor in Council to designate two or more adjudicative tribunals as a cluster when of the opinion that
“the matters that the tribunals deal with are such that they can operate more effectively and efficiently
as part of a cluster than alone”. (Tribunals Act s 15)
 Cabinet appoints exec chair responsible for all tribs in cluster who has powers of chair of all tribs. TA s.17)
 An associate chair may be appointed for each tribunal in the cluster, and the executive chair may delegate
powers and duties to associate chairs and vice-chairs. TA s.16 & s 17)
TRIBUNAL CLUSTERING
Designation of clusters
15. The Lieutenant Governor in Council may by regulation designate two or more adjudicative tribunals as
a cluster if, in the opinion of the Lieutenant Governor in Council, the matters that the tribunals deal with are such
that they can operate more effectively and efficiently as part of a cluster than alone.
Governance structure of clusters
Executive chair
16. (1) The Lieutenant Governor in Council may appoint an executive chair to be responsible for all of the
adjudicative tribunals included in a cluster.
Associate chairs
(2) The Lieutenant Governor in Council may appoint an associate chair for each adjudicative tribunal that is
included in a cluster.
Alternate executive chairs
(3) The Lieutenant Governor in Council may appoint one or more of the associate chairs as alternate executive
chairs of the cluster, and an alternate executive chair shall act in the place of the executive chair if the executive chair
is unable to act or if the position of executive chair is vacant.
Vice-chairs
(4) The Lieutenant Governor in Council may appoint one or more vice-chairs for each adjudicative tribunal that
is included in a cluster, and a vice-chair shall act in the place of the tribunal’s associate chair if the associate chair is
unable to act or if the position of associate chair is vacant.
Chairs must be members of tribunals
(5) The executive chair and each alternate executive chair must also be members of each of the adjudicative
tribunals in the cluster and the associate chair and each vice-chair must also be members of the tribunal to which they
are appointed as associate chair and vice-chair.
Powers, duties, etc., of executive chair
17. (1) The executive chair shall have the powers, duties and functions assigned to the chair of each
adjudicative tribunal that is included in the cluster by this or any other Act or by any regulation, order-in-council or
ministerial or Management Board of Cabinet directive.
Delegation
(2) The executive chair may delegate to an associate chair or vice-chair of an adjudicative tribunal that is included
in the cluster any power, duty or function, except a power, duty or function he or she may have as an ethics executive
under the Public Service of Ontario Act, 2006.
Adjudicative Tribunals and Clusters O/Reg 126/10
 Clustering – groups of tribunals with similar subjects and common leadership and administration. Each
tribunal will still have its own identity but some things will be done in clusters.
o Environment and Land Tribunals Ontario (ELTO)
o Social Justice Tribunals Ontario – a large one – SBT, landlord tenant board, human rights tribunal,
special education etc (SJTO)
o Safety, Licensing Appeals and Standard Tribunals Ontario (SLASTO)
 One of the criticisms is do these clusters make sense – trying to put broad categories together when there
are some like landlord and tenant and human rights tribunal that operate differently.

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Note issues with (Refer to Sossin & Baxter and Wright articles): Executive chairs, Co-location, Cross
appointments, Common training, rules, approaches – that would apply to all the tribunals
Flexibility – the tension between uniformity and flexibility. There are of course disadvantages to a big
system but there are pros too.
Appointments
o S 14 ATAGAA – selection process has to be 1) competitive, 2) merit based and 3) at least 3 criteria
– factors include expertise, aptitude for impartial adjudication, aptitude for applying alternative
adjudicative practices.
o Recommendations for appointment and reappointment require recommendation of the chair
 Chair can say they don’t want this person appointed but the Minister can refuse the chair’s
recommendation.
Why Tribunal Clusters
- The need to strike a balance between system coherence and flexibility.
-
-
What sets tribunal clusters apart from other strategies is that they are functionally designed to create the
conditions for setting standards of excellence, improving the relationship between user groups,
streamlining tribunal administration, and cross-pollinating approaches to adjudication across different areas
of expertise.
So ‘why clusters and not simply “super-tribunals” like the AAT and VCAT in Australia or an integrated
Tribunal Service as in the UK?’
o First, bigger may not always be better. Large-scale amalgamations may trade off flexibility and
adaptability within the super- tribunal in return for greater conformity across the organisation.
o Second, clusters allow for learning across and between tribunals. Tribunals previously in
relationships with separate ministries can, in one cluster, highlight the best practices and
procedures from each in order to give the cluster a distinct identity.
o Third, the structure of tribunal clusters may accurately reflect how users actually experience
justice problems in some circumstances. Surveys conducted reveal that specific problems tend to
cluster together- for example, an individual who experiences a housing problem would be more
likely to also encounter challenges related disability benefits. Tribunals will adjudicate many of
these clustered subject matters. This survey data suggest that tribunal systems might be more
effective at addressing administrative justice problems if they are structured to reflect the
underlying needs of their users.
o That said, in our view, tribunal clusters are not a final destination for administrative justice
reform; rather, they are a means for arriving at a more rational and coherent way of
delivering administrative justice.
When to Cluster and the Clusters currently in Ontario
- Ontario’s Tribunals Act (ATAGAA) s 15 authorises the province to designate two or more adjudicative
tribunals as a cluster if ‘the matters that the tribunals deal with are such that they can operate more
effectively and efficiently as part of a cluster than alone’.
- There are 3 clusters (though the article only highlights 2) Adjudicative Tribunals and Clusters O/Reg
126/10
o Environment and Land Tribunals Ontario (ELTO)(5 tribunals) was the province’s first tribunal
cluster: the Assessment Review Board, which deals with property tax assessment and tax appeals,
the Board of Negotiation, which provides mediation in compensation disputes arising from land
expropriations, the Conservation Review Board, which adjudicates disputes concerning
designated heritage status properties and archaeological sites, the Environmental Review
Tribunals, which handles a range of environmental disputes, and the Ontario Municipal Board,
which hears appeals and applications on a wide range of municipal, planning and land-related
matters. Following the Cluster Project and before the Tribunals Act was enacted, these tribunals
were co-located in a common physical space and began to integrate some aspects of their
administrative operations.
o A second set of six Ontario tribunals was recently brought together as part of Social Justice
Tribunals Ontario (SJTO) (7 tribunals) in January 2011. This cluster includes the Human Rights
Tribunal of Ontario, the Child and Family Services Review Board, the Custody Review
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o
Board, the Social Benefits Tribunal/Social Assistance Review Board, the Special Education
Tribunals (English and French) and the Landlord and Tenant Board. In comparison to ELTO,
SJTO’s tribunals deal with a much more diverse range of subject matters and most share little in
the way of substantive overlap. As the SJTO’s name itself suggests, a primary motivation behind
its formation has been to create a ‘single door’ institution for a shared community of users
vulnerable to social injustice from a range of causes such as discrimination, physical and mental
disabilities and economic disadvantage. The SJTO tribunals thus appear to have clustered around
the socio-economic characteristics and other identifying features of users, rather than the particular
subject matters dealt with by the tribunals.
Cluster of safety, standards and licensing tribunals (5 tribunals). The following adjudicative
tribunals are designated as a cluster of safety, standards and licensing tribunals: Animal Care
Review Board, Fire Safety Commission, Licence Appeal Tribunal, Ontario Civilian Police
Commission, Ontario Parole Board.
Tribunal Cluster Models
Co-Location
o Tribunals are brought together to share the same physical space and perhaps some overlapping
logistical infrastructure. This model normally allows users of the co-located tribunals to attend at
a single location and gain information about the various procedures from constituent tribunals. Colocated tribunals will generally each retain leadership and control over their own affairs,
although some efficiencies in administrative collaboration may be available.
Institutionalizing the Cluster
o The cluster model offers the unique opportunity for these organisations to develop their own
culture and adapt this to the particular needs and demands of their users over time.
o Tribunals retain and cultivate their own areas of expertise, while promoting shared
knowledge and cross-fertilisation between each unit. But the formal equality between tribunals
within the cluster might also mask informal or operational hierarchies that create significant
distinctions in the roles and influence of different tribunals
Amalgamation
o More fully integrated amalgams or ‘super tribunals’.
o The existing literature on tribunal reform might be criticised for obscuring this distinction by
focusing almost explicitly on the concept of amalgamation, while ignoring contrasting or
alternative concepts of clustering, even where the later would seem to be a more accurate label of
the actual operation of the organisation.
Components/Ideals behind clustering
Shares Rules Procedures and Practices
o One way to measure the effectiveness of tribunal clustering for streamlining and improving clusterwide procedures is to track the diffusion of specific practices within the cluster.
Shared membership and cross – appointments
o Bacon’s research finds cross-appointments created a means of breaking down some of the cultural
barriers between separate subject-matter divisions by encouraging members to share knowledge, be
open to new learning, and actively participate in the process of cultural change.
Shared administrative support and services
o Notably, positive outcomes such as improved efficiency, better staff training and development, and
greater flexibility in mobilizing staff and resources to meet fluctuating workloads appear to be the
result of both convergence and divergence at the administrative level.
Leadership
o A main issue related to tribunal cluster leadership is the nature and degree of authority over each of
the constituent tribunals. In tribunal clusters, central leadership will likely be the crucial pivot point
in balancing between the cohesion of distinct sub-cultures and fostering the distinctiveness of
constituent tribunals.
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Looking at Some Tribunals
Ontario Labour Relations Board
- highly reputable board and adjudicators
- traditionally in panels of 3 (management and labour side) – but increasingly 1 member panels used
Social Benefits Tribunal – benefits prescribed by statute. Claimant is the individual and respondent is
government. By definition the people before the government tend to be vulnerable with a need for income
- fairly often represented – one of easiest areas to
- adjudicators are a number of different people with different backgrounds – get paid less than the Labour
relations board.
- Panel sits in ones and two
Health Professions/Health Services Appeal
- typically sits 3 (panel)
- respondent are health professionals and the appellants are individuals.
Ontario Special Education Tribunals
- one to two sittings per year – reasons like easier to go to human rights tribunal than this board, process seen
as frustrating have to go through school board, disputes often not best addressed by litigation – more
mediation etc
- entirely part time – no lawyers, education background, typically part time
Landlord and tenant
- lawyers and non-lawyers
- mix of full and part time
- duty counsel – counsel to assist and a large number of paralegals for landlord and tenants
Concerns in the Tribunal World
Appointments
- politics in tribunal appointments as opposed to competence
- How do we ensure quality justice, diverstity and process
Education for adjudicators – this is more a concern in recent years
- How do you train people for adjudication more so if they aren’t but even if the are lawyers
Evaluating adjudicators
- How do we ensure quality while still allowing for independent decision making for
Access to justice - making systems accessible and understandable
- Are things accessible and easy to understand to people who aren’t lawyers
o Website design – no litigation around these things, but important to the ability of the public to
understand
Use of Mediation/ADR
o Majority of disputes don’t go to tribunals, yet alone judicial review etc.
o Some tribunals where those who do the mediations do the hearings, some tribunals separate the
two. Mediation-adjudication in Human rights tribunal – move from hearing to mediation and if it
doesn’t work go back to a hearing
- Resources and independence from government on key decisions
o Is it a problem for independence if you have to get approval from Attorney general re website
design
Consistency
o Adjudication – Is it a career?
Being an Advocate in a Diverse System
- Learning the context: research is not only about CanLII
- Adaptability and asking questions
- Ethical issues of appearing before non-lawyers
- Working with adjudicators and opposing counsel you deal with regularly
- Working with self-represented litigants and processes aimed at them
- Preparing your client for tribunal processes
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Rule-making, Soft Law and Regulatory Dilemmas
This section explores the differing forms of legal accountability for executive action through legislative and nonlegislative instruments and the approaches to consistency within administrative tribunals.
General Principles
Soft Law
 Soft law is a catch-all term for non-legislative direction (procedural and substantive) which is issued by the
executive to govern its own decision-making (i.e. policy statements, guidelines, manuals, and handbooks)
 The state of the law is captured by Baker, Little Sisters and Thamotherem.
 Soft law provides predictability, transparency and guidance in areas of discretionary decision-making (as in
Baker)
 The scope of soft law must begin with the governing statute – which may expressly authorize guidelines (and
can even make them binding).
 Soft law cannot exceed or contradict the power set out in statute

Guidelines, unless they are precluded by statute can be developed. Where developed, can't be binding. If they
are binding, then that is an improper fettering of discretion, because they are usurping the legislative role
 Baker: once guidelines are developed, even though they are not binding. They can lead to a finding that an
administration decision is unreasonable if the decision was reached without resort to the guidelines.
Uunless there is a good reason for departing from it, the refusal to follow the guideline is a reviewable
error.

Rules are (hard) law, and therefore binding, where the statute delegates the rulemaking power to a tribunal.
- It is possible for a tribunal to be bound to rules from another body (i.e. the Workplace Safety and Insurance
Appeals Tribunal)
o the idea is that only legislature can make law while tribunals make policy, but a statute can change this.
 Example: the Canadian Human Rights Tribunal has a law making function which the court has
recognized as similar to courts creating regulations).
 Example: Municipal Acts authorize by-laws because they have a statutory power to do so. Otherwise,
they would not be able to do that as they are not recognized in the Constitution. Absent statutory
authority, they can't make law
Regulatory Dilemmas:
1. The distinction between law and policy is a strict distinction when it should not be.
 The more you formalize these guidelines, the more rigid they become; they can seem to be mini-regulations.
o How do you deal with a guideline that says in the statute that it is non-binding, but it is used in every
case, such that it becomes a mini-regulation, and therefore unreviewable by the courts?
2. Tribunals are trying to navigate this terrain by finding ways to get to the decisions that they need to get to. Rules
attract scrutiny, so there is a desire to characterize them in ways that won’t attract a lot of scrutiny.
3. Administrative tribunals wrestle with the need to balance efficiency and consistency with the right to be heard
and impartiality/independence
4. Tribunals have engaged in innovative decision-making in order to achieve their statutory goals, coherence and
consistency. How far can tribunals do this and also develop their own distinct approach?
5. How do courts set limits on the Scope by which tribunals may adjudicate their own statutes?
6. The more you bring a rule of a regime to the sphere of policy; you push it further away from view. Would a
formalized world of guidelines be better?
7. "problems of public administration”: If a procedure or policy is alleged to be unlawful, an investigation into that
procedure would be costly and time consuming for the courts to examine. It would be tantamount to a “fishing
expedition”
Soft Law can be reviewed when (1) contradicts statute or (2) goes beyond realm:
Thorne’s Hardware Ltd v. Canada, [1983] 1 SCR 106
Facts:
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 Governor in Council issued an Order in Council that extended the St. John’s harbour and imposed fees on all
vessels in the harbour. The appellants had vessels that, as a result of the Order, were now subject to these fees.
 The appellants argued that (1) the Order in Council had been passed for improper motives (to increase port
revenues); and (2) that the harbour tolls did not apply to them (because the Act did not allow jurisdiction over
property rights) and (3) that the levy was a “tax”, not a “toll” and that only tolls were authorized by the Act.
Legal Analysis:
 If you can show that a soft law practice/instrument: contradicts the statutory power, or goes beyond the policy
realm that is at issue, that error on its face can give rise to judicial scrutiny.
 This would be challenging, given that there may not be evidence available to do this. Evidence may include
speeches, correspondence, Hansard, etc..
Principles:
 All executive policy and guidance re discretionary authority has limits
 Courts cannot inquire into the validity of the beliefs upon which the government acts
 The only role for judicial review of the order would be on jurisdictional grounds involving an “egregious” error,
which was not present in this case
Guidelines need not meet a legal standard: Little Sisters Book and Art Emporium v Canada (Minister of
Justice), [2000] SCC
Facts: Seizure of LGBT magazines by Customs based on obscenity provision in the Act; Evidence disclosed that
customs officials based their decisions on a guideline
Held: the Act and the decision are subject to judicial scrutiny but the guideline as an internal executive document
need not meet any legal standard.
 [80] the Customs inspector compares the material to a sample in the manual. If it matches, then it is withheld.
There is no scope for deviation or interpretation.
 [85] the TJ put too much weight on the Memo, which is not law. The fact that the memo was flawed is a matter
of public administration. It was the legality of the decision, not the quality of the guidebook that mattered.
Discussion:
 Appellants lost because they attacked a decision in the courts and sought a judicial survey of protocol. The
problem was the memo, but the memo was not law.
 The statute, the law, and the decision can be challenged in court, but not the policy.
 Legal Pluralism: Law happens in many kinds of contexts. The law that we can get at in courts in the tip of the
iceberg. in little sisters, when you talk about guidelines, there is a whole world out there that the courts can't
touch. it makes no sense to mourn the guidelines.. if we want to look at how courts address these issues, we need
to look at how societies can access these things and more cognizant of the limits of what a guideline can do.
What matters more than the guideline is what's done.
Case Principle: Rules are binding; guidelines are not: Thamotharem v Canada (Minister of Citizenship and
Immigration. [2004] RPDD No. 613 (Immigration and Refugee Board)
Facts: Guideline 7 under which Refugee Protection Officer (RPO) make submissions prior to claimant in IRB
hearings – data kept on how often Guideline 7 is followed, but the Guideline itself affirms that it is non-binding
 FCA concludes that Guideline 7 does not breach fairness guarantee, and does not improperly fetter discretion of
IRB members.
Arguments:
• Refuge lawyers argued that to reverse that process puts the refugee claimant at a disadvantage.
• Whether the standard process in which the RPO asks first deprives an opportunity to have access.

The evidence did not demonstrate that, in light of the wording of the guideline a “reasonable person would that
the members’ independence was unduly constrained by the guideline, 2, there was evidence that members did
deviate from the standard practice and 3. there was a need for the Board to obtain consistency
Principles:
 Rules: binding, legislative vs. Guidelines: non-binding, policy
 Soft-Law principles:
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

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[55] Administrative decision-making involves balancing: the benefits of certainty and consistency on the
one hand, with flexibility and fact-specific solutions.
[55] Legitimate Expectation: Soft law can assist members of the public to predict how an agency is likely
to exercise its statutory discretion … and enable an agency to deal with a problem comprehensively and
proactively, rather than incrementally and reactively on a case-by-case basis.
[58] Although not legally binding on a decision maker in the sense that it may be an error of law to misinterpret
or misapply them, guidelines may validly influence a decision maker’s conduct. (i.e. in Baker)
[60] The use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in
administrative decisions is particularly important for tribunals exercising discretion, whether on procedural,
evidential or substantive issues, in the performance of adjudicative functions.”
Bryan W. Finlay and Richard Ogden, “Consistency in Tribunal Decision Making” (2012) 25 CJALP 277
I. Why Consistency?
 Consistency exists where like facts produce like results. It must be balanced against: the need for decisions to be
made on their own facts and by those who hear the dispute
 Substantive Consistency: same facts will lead to same judgment
 Procedural Consistency: same disputes will lead to same procedures and made with consideration to the same
range of law and policy
 Need for consistency must be balanced against: Independence/impartiality and audi alteram parted
 The need for administrative consistency is different from that of judicial consistency because (1) no roe of res
judicator and no rule of stare decisis. Tribunals are bound by their enabling statutes
II. Tools for Achieving Consistency
Most of these tools are practical rather than legal:
 Jurisprudence: Assists parties to determine likely outcomes of their cases.
 Leading Cases: May assist with backlog if done lawfully and not for bad motives (Krozak)
 Binding Rules: Subject to a statutory grant, helps to mould the exercise of discretion in accordance with the statute
 Soft Law: Helps tribunals to deal with broad policy issues consistently. A guideline may fetter the authority of t
member. To decide if it does, factors need to be considered including: language of the guideline, the effect of the
guideline, needs of the tribunal
 Institutional Decision-Making Processes: Full-board meetings ( Consolidated Bathurst) It order to be lawful, they
would need to meet the three tests (1) not imposed by a superior level but is requested by the adjudicator; (2)limited
to questions of policy and law, rather than fact or evidence; (3) panel members remain free to decide according
their consciences. + parties should have the opportunity to respond to any new arguments raised during that process
• Clustering of Tribunals: allows for harmonization of rules, practices, technology. Can increase subject matter
effectiveness, permits innovation.
 Fostering Cultures of Consistency: Interaction between members, New member recruitment, Member training,
Monitoring of Member performance, Review by Tribunal Counsel of draft decisions, Decision writing, Case
management and Case Treatment patterns
Principles:
 the Court used the fact that the decision at issue was at odds with the Ministry’s guideline as a basis for
finding the decision unreasonable. The guideline required that the officer consider the children’s interests, and
he did not. This contributed to the decisions being found unreasonable.
 [67] “In my opinion, a reasonable exercise of the power conferred by the section requires close attention to
the interests and needs of children. Children’s rights, and attention to their interests, are central humanitarian
and compassionate values in Canadian society. Indications of children’s interests as important considerations
governing the manner in which H & C powers should be exercised may be found, for example, in the
purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published
by the Minister herself.”
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Finding that a legitimate expectation was not met leads to more process, not a substantive result
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013
Facts: Muhsen Ahmed Ramadan Agraira attempted to get permanent residence status in Canada. In 2002, his
application was denied pursuant to s.34(1)(f) of the Immigration and Refugee Protection Act (IRPA) because he was
a member of the Libyan National Salvation Front (LNSF), which the Citizenship and Immigration Canada (CIC)
classified as a terrorist organization. He applied for ministerial relief under s.34(2) of the IRPA, but the Minister
denied his application in 2009 because it was not in Canada’s national interest to admit an individual with sustained
contact with a terrorist organization.
Issue: Whether the guideline can give rise to a legitimate expectation that the guideline will be followed
Held: in some circumstances, a guideline can give rise to “legitimate expectations” that a procedure set out in a
guideline will be followed
Discussion: If this “legitimate expectation” is not met, the remedy is more process. It does not give rise to a
substantive remedy.
 no other case that has said this about a guideline [98] [99-101]
Access to Administrative Justice and Proportionality
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Starting question: What does access to justice mean in the context of administrative tribunals?
 Admin. Tribunals, like courts need to be accessible to all!
 Think scarce gov’t resources and their implications on access to justice
 Also – access may also depend on how a tribunal accommodates unequal power and resources b/w parties
 Balances fairness and efficiency
What do tribunals do that affects accessibility?
 Physical (premises, location, environment of hearings, offices)
 Electronic (availability, accessibility of electronic information)
 Manner of writing materials/designing forms: plain language
 Conduct of hearings: is the Self Rep. Litigant included or excluded, encouraged or discouraged, patience or
abruptness  Costs, filing fees, etc.
It’s NOT always clear what will facilitate access – changes on case by case basis due to need/limitations
Proportionality
General Principle: If an action taken by any authority is contrary to law, improper, unreasonable or irrational, a
court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising
power is the doctrine of proportionality.
Proportionality and access are linked, on an individual and systemic basis
Individual: cost in time and/or legal fees to have issues decided may prevent access
Systemic: unlimited adjudicative resources for the most litigious may reduce the time for others
S. Green & L. Sossin, “Administrative Justice and Innovation: Beyond the Adversarial/Inquisitorial
Dichotomy”
Active Adjudication
Direction by the Tribunal as to what it needs to focus on and how to divide issues so they happen effectively
EX:
 Reversing the order of proceedings
 Putting aside issues a party considers preliminary
 Raising issues on the Tribunal’s own initiative
 Questioning witnesses
 Restricting cross-examination
Sossin - Access to Administrative Justice and Other Worries”
 Access to the tribunal –accessibility, single office or multiple office, video conferencing? Translation
services? Sigh language? Telephone? What about disabled people
 Access to legal or other knowledge necessary to obtain legal services – are things published for the
public? How do parties learn what they need to know to contribute to proceedings? Is legislation available
online? Have guidelines been developed to set out the standards by which decisions will be reached? Is
tribunal staff avail to help fill out forms or prepare submissions? Translators?
 Access to resources needed to navigate tribunal system- how do people present their positions to
tribunal? Right to state-funded legal services/representation? Do fees create barriers? Can fees be waived?
Yuill v Canadian Union of Public Employees, 2011 HRTO 126
Case Principle: Tribunals have the jurisdiction to “fill in the gaps” (Yuill)
Facts: No provision in the SPPA or any legislation to appoint a litigation guardian to represent a person with a
disability without legal capacity
Issue: Can the Tribunal do so or does the applicant have to go to a court?
Held: Values of the Convention, the SPPA and the Code suggest an interpretation of this leg that facilitates access
to the Tribunal process for persons with disabilities while also providing appropriate safeguards to prevent abuse


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The HRTO and other tribunals covered by the SPPA are designed to facilitate access to justice in a more
informal, tailored and faster process than the courts. Requiring persons with disabilities that affect their
capacity to commence a court process in order to access the administrative justice system would hinder that
access for them. The Tribunal’s powers to determine its own procedures give it the power to appoint a
litigation guardian.
Access to justice…not only includes being able to understand, navigate, and participate in a tribunals
decision making but also presupposes that the tribunal will deliver administrative justice of high quality –
Sossin, p. 232
Tribunal can make a vexatious litigant declaration as part of power to control its process (Drenic)
Proportionality and Active Adjudication
 Proportionality and access are linked, on an individual and systemic basis
 Individual: cost in time and/or legal fees to have issues decided may prevent access
 Systemic: unlimited adjudicative resources for the most litigious may reduce the time for others
Court ought not to use fees as a gatekeeping mechanism (Gill) - Div. Court.
This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to
facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the
Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the
expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is a responsible
and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing
applications that might reasonably succeed.
Case Principle: An applicant’s burden of proof needs to be reconciled with the reality that information may
be the only way to prove their case. (Pellerin)
 Reconciling an applicant’s burden of proof with the reality that information from a respondent may be the
only way an applicant can prove his or her case is a tension in deciding Code applications.
 On one hand, because the reasons for a decision are often only known to a respondent, it is important to
ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain
evidence that would permit them to establish discrimination and that the Tribunal use its expertise to focus
on such evidence.
 It is also important that neither party undergo the cost, inconvenience, and potential stress of Code
proceedings where there is no reasonable possibility that allegations of Code violations will succeed, and
that public resources be appropriately used in resolving such disputes. Human rights applications should
not be an endless search for an unlikely needle in a haystack.
Broader Perspectives on Administrative Law
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Hewitt discussed the importance of Aboriginal law as a third body of law in Canada.
Chief McLaughlin said that this is the Charter era of reconciling Aboriginal law with the common law and
with the civil law.
As lawyers, we will need to think about our role in this reconciliation. How will we shape a law that works
to undo Eurocentric and white supremacist way of practicing law in Canada?