Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 1
Administrative Law Outline
Crane | Fall 2012
Contents
Topic
Guiding Principles
Part I: Introduction to Administrative Law
Part II: Procedural Review
Part III: Substantive Review
Appendix A: Procedural Fairness Review
Appendix B: Charter Procedural Fairness Obligations
Appendix C: Substantive Review
Index of Cases
Page
1
2
11
57
83
90
92
95
Guiding Principles
Respect legislative
supremacy
Supervise exercise of
government power
Promote accountability
Promote participation
 separation of powers: Executive | Legislature | Judiciary
 privative clauses: government, in light of policy, may choose to vest d/making in an administrative
body instead of the courts
 government power as exercised by administrative d/makers
 ensure legality and deter arbitrariness in d/making
 confine public power to its proper scope (i.e. authorization of enabling statute)
 ensure proper procedures are applied in d/making that affects citizens’ rights or interests
 foster accountability by providing individuals with a recourse against
 more accessible (less adversarial, more informal)
 more efficient (quicker timelines encourage individuals to participate)
 more cost-effective (lower costs both directly and indirectly through taxation)
Cases by Theme
Theme
Cases
Bias
Baker, Congregation, Kane, S.(R.D.), Imperial Oil, Moskalyk-Walters, Pearlman, Matqsui, Energy
Probe, Bennett and Doman, Marques, Committee for Justice and Liberty, Wewaykum Indian Band,
Brosseau, BCNU, Quebec Inc.
Blencoe, New Brunswick (Minister of Health and Community Services)
Re Abel, Cardinal, Re Webb, Charkaoui
Congregation, Baker, Newfoundland and Labrador Nurses’ Union
Authorson, Inuit Tapirisat, Homex Realty, CARI, Regulated Importers, Old St. Boniface, Save Richmond
Farmland Society
Knight, Nicholson, Kane, Khan
Baker, Re Webb, Knight, Singh, Khan
Singh, Khan
Kane, Khan
Irvine, Brosseau
Psychological stress (s. 7)
(More) disclosure
Reasons
Legislative d/making
Employment
Oral hearing?
Credibility
Disciplinary hearing
Economic crimes
Law 301: Administrative Law
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Part I: Introduction to Administrative Law
Theoretical Underpinnings
Topic
How to use
Rule of Law
“Thin” Rule of
Law
“Thick” Rule of
Law
“Not quite thick
but not quite
thin” Rule of
Law
Notes
Key Concepts
“Advocates tend to read into the principle of the rule of law anything which supports their

particular view of what the law should be”
– Major J. in Imperial Tobacco citing Strayer J.A. in Singh
 Formal and primarily procedural concept

 Basic principle is legality: government must conduct itself in accordance with the
law (proper person, properly authorized)
 Government should take place through law and not discretion (ROL as antithetical
to ad hoc or arbitrary behaviour by government)
 Lawmaker itself is subject to law, at least until the last is change
 Relatively little or nothing to say about the substantive content of the law
 Expansive and substantive

 Encapsulates a (liberal) theory of substantive justice
 ROL as a particular vision of what “justice” requires in a society in substance i.e.
rule of “good” law (moral content).
 ROL can be used to measure the content of legislation from a policy perspective
e.g. some might argue that laws that discriminate invidiously on racial grounds are
contrary to the ROL per se
More than the “thin” version of RoL:

 clarity of norms  laws should be sufficiently clear and public to enable
individuals to understanding their position and therefore choose actions
accordingly (against vagueness)
 temporal issues  laws must be prospective not retroactive
 laws should be capable of being obeyed: appropriately general; relatively stable
(change with notice) and consistent over time
Theorists: Lon Fuller, Joseph Raz (as discussed in Mary Liston)
Three features
of RoL (Liston)
RoL and
Administrative
Law
Characteristics of a legal system with this notion of RoL:
 publicity
 non-retroactivity
 clarity
 generality
 consistency
 stability
 capable of being obeyed
 rules that constrain the administration of law and the discretion of public officials
(1) a jurisprudential principle of legality
(2) institutional practices of imposing effective legal restraints on the exercise of
public power within the three branches of government
(3) a distinctive political morality shared by the Canadian political community
(CB ch. 2 p. 40)
In this course, focus on (1) but (2) and (3) underpin how the government responds to
judicial intervention/review
RoL underpins administrative law by providing an important rationale for the role of courts
in administrative law
 courts portray their role as the White Knight “vindicating the rule of law”
Typically, the classic liberal version (with the key theme of “legality”) of the RoL developed


Law 301: Administrative Law
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by Dicey (The Law of the Constitution, 1885)  still influential
 citizens have a right to go to the courts to find out whether their relationship with
the state is legal (interferences with body or goods)  “show me the law”
mentality
 all subjects are bound to the law (and within the jurisdiction of the courts)
Rule of law in
the SCC
Roncarelli
Reference re
Manitoba
Language
Rights
Imperial
Tobacco
Three fundamental concepts from Dicey’s understanding of RoL
(1) government must act only with lawful authority (i.e. government is subject to law)
 within jurisdiction (i.e. authority from statue or prerogative that is consistent
with the Constitution/Charter)
 legality erquires lawful authority for state actions that interfere with the rights
and liberties of citizens [“no one should be made to suffer except for a distinct
breach of the law …”]
 law = clear and knowable rules
 broad discretionary state power is suspect and dangerous (c.f. Lord Hewat, CB
p. 12)
 all state power is legally limited and therefore cannot be arbitrary
Courts have the duty and constitutional authority to determine the limits of
government power and the lawfulness of government action
 echoed in Dunsmuir v. New Brunswick (SCC 2008)
(2) government and citizens alike are subject to the general law of the land (i.e. no
one is above the law)
 c.f. Roncarelli v. Duplessis (SCC 1959)
(3) government is subject to the ordinary law administered by ordinary courts (i.e. no
separate court system for administrative law
 contrast with France’s Cour de Cassation (high court with jurisdiction over all
administrative law matters)
 Constitution Act, 1867 s. 96 mandates superior courts to ensure government
acts within its jurisdiction (Crevier)
 independent judges seen as the “citizen’s bulwark” against potentially arbitrary
state action
 “Governance by rule of law requires a judicial system that can ensure its orders
are enforced and its process respected” (Lamer C.J. in MacMillan Bloedel v.
Simpson (SCC 1995))
Roncarelli (SCC 1959): the rule of law is a “fundamental postulate of our constitutional
structure”
 improper exercise of discretion when Roncarelli’s liquor license was revoked based on a
recommendation from Duplessis to the liquor commission to cancel the license (despite the
broader discretionary power of the liquor commission
Reference re Manitoba Language Rights (SCC 1985): (1) the law is supreme over officials
of government as well as private individuals and is therefore preclusive of the influence of
arbitrary power (supremacy of law over government); and (2) rule of law requires the
creation and maintenance of an actual order of positive laws (the existence of a system of
public order)
 although the laws were unconstitutional (not enacted in both official languages), but
craft a remedy that does not create chaos
In Imperial Tobacco (¶58) and Christie (¶19), rule of law embraces three principles: (1) law
is supreme over officials of government (Manitoba Language Rights); (2) rule of law
requires an actual order of positive laws (Manitoba Language Rights); and (3) rule of law
requires that the relationship between the individual and the state be regulated by law
(Quebec Secession) (i.e. law mediates the state/citizen relationship)
 rule of law also requires/includes judicial independence

Law 301: Administrative Law
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While Imperial Tobacco left open the possibility of RoL including additional principles, the
SCC unanimously rejected submissions that the rule of law requires legislation (1) be
prospective), (b) be general in character), (c) not confer special privileges on the gov’t, and
(d) ensure a fair civil trial.
 Major J.: generally, rule of law constrains the executive and judicial branches, not the
legislative branch (¶60)
Functionalist
Critique of RoL
“Legality”
In summary, the SCC indicates:
 RoL is a limited underlying principle
 RoL per se cannot strike down statutes  “Protection from unjust or unfair
legislation “properly lies not in the amorphous underlying principles of our
Constitution, but in its text and the ballot box” (Major J. in Imperial Tobacco at ¶66
qtd. in Liston CB p. 59)
 RoL pertains mainly to constraining the executive/administrative apparatus of the
state
The central function of administrative law should be to promote the effective functioning
of the modern state.

Purposes of the modern state should be fostered by administrative law, not hindered.
These purposes include:
(1) regulation of private power in the public interest
(2) promotion of greater social and economic equality through the redistribution
of income and benefits
Historically, the RoL could be leveraged by courts to take a narrow and restrictive reading
of the powers of the newly emerging administrative/regulatory state
 Diceyan model of RoL  operates to uphold the status quo and unduly curbs the
interventionist state
 overarching question for course: does this critique still hold validity today? why/why
not?
Three Specific
Functionalist
Critiques
Perspective
The functionalist perspective is that courts should take a more restrained, limited and “less
interventionist” role in the oversight of administrative action
(1) traditional model of RoL (and laisser faire ideology) allows courts to too zealously
guard “common law values” against state encroachment (i.e. prefer private
property rights and freedom of K in the face of the regulatory state’s attempts to
achieve redistribution)
(2) courts impose an adversarial adjudicative model on administrative decision
makers when it is not appropriate to do so and doing so
(3) courts have sometimes failed to appreciate the need to infuse policy into statutory
interpretation and to recognize that judges do not hold a monology on how to
interpret statutes in a way that is consistent with legislative intent and that will best
achieve legislative purpose
 a specialized administrative agency may be better situated than a generalist
judge to interpret a regulatory statute in a way that will best achieve the legislative
intent and secure effective program delivery
Debate between RoL traditionalism and functionalism is essentially a political debate:
“deeply embedded within any discussion of the rule of law is a debate about the legitimate
scope and content of judicial power” (Liston CB p. 40)
Michael Taggart: “The courts either interfere too little and do not live up to the rule of law
ideal, or interfere too much, thereby exceeding their legitimate bounds. Unlike
Goldilocks, the judges never seem to find the bowl of gruel that is ‘just right’”


Law 301: Administrative Law
Traffic light
metaphor
SCC on
perspective
Overarching
Questions for
the Course
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Red light (conservative): focus on upholding private property rights and restraining state
power
Green light (collectivist): law as facilitator of regulation, redistribution and service
provision
Amber light: balance the need for state power to facilitate social aims with the need to
regulate that power
Administrative Law (6th ed.): middle ground that ensures procedural openness and
enhances accountability, protects the interests of the intended beneficiaries of an
administrative program and prevents administrative agencies from subverting the clear
meaning of an enabling statute (with deference for expertise, linguistic ambiguity and
legislative purpose)
“As a matter of constitutional law, judicial review is intimately connected with the
preservation of the rule of law. It is essentially that constitutional foundation which
explains the purpose of judicial review and guides its function and operation. Judicial
review seeks to address an underlying tension between the rule of law and the
foundational democratic principle, which finds an expression in the initiatives of
Parliament and legislatures to create various administrative bodies and endow them with
broad powers. Courts, while exercising their constitutional functions of judicial review, must
be sensitive not only to the need to uphold the rule of law, but also to the necessity of
avoiding undue interference with the discharge of administrative functions in respect of the
matters delegated to administrative bodies by Parliament and legislatures” (Bastarache and
Lebel JJ. in Dunsmuir ¶27)
(1) the apparent role of the rule of law in shaping administrative law and justifying
what courts do
(2) the validity of the functionalist critique of the judicial role in administrative law
(3) the extent to which Canadian courts appear to have recognized and responded
to functionalist concerns



Specific questions:
 to what extent do courts tend to impose inappropriate “court like” processes on
administrative tribunals?
 to what extent (and how) do judicial decisions in administrative law tend to favour
the status quo and property interests in the face of state attempts to regulate in
the public interest and redistribute wealth?
 to what extent do courts claim to have a monopoly on “correct” interpretations of
statute law in the context of undertaking substantive review of administrative
decisions?
 to what extent have Canadian courts attempted to strike a balance between “rule
of law concerns” and “functionalist concerns”? (How have they attempted to do
this? Have they achieved a balance that you judge to be appropriate?)
Overview of Judicial Review and Remedies
Topic
Non-Judicial
Mechanisms for
Control
Judicial
Notes





political and legislative oversight
auditor general and budget officer
ombudsperson
access to information legislation
internal governmental control mechanisms (i.e. the Attorney General and the law
officers of the Crown)
 non-judicial appeal mechanisms (i..e administrative appeals or statutory appeals
that do not go to a court)
 typically must be exhausted before
(1) “original jurisdiction” of courts (tort, contract, constitutional law), where applicable
Key Concepts


Law 301: Administrative Law
Mechanisms for
Control
Judicial Review
Jurisdiction
Judicial review
under the
Constitution
Judicial
Mechanisms for
Control
Judicial Review
Jurisdiction
Procedural
Impropriety
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(2) appeals to a court from administrative decision-makers if provided for by statute
(3) judicial review of the jurisdiction of superior courts over administrative decisionmakers
a) at “common law” (s. 96 courts)
b) Federal Courts Act
Primary Grounds for Judicial Review of Administrative Action in Administrative Law:
(1) procedural improprieties
a) breach of procedural fairness obligations
b) breach of the rule against bias
c) lack of requisite degree of independence
d) improperly constituted or authorized decision maker (e.g. unauthorized
delegation of power)
(2) “substantive” illegality or irrationality (i.e. merits review)
 review of the substantive adequacy of the factual and legal basis of the
decision
a) review for errors in interpreting the scope or meaning of statutory provisions
b) decisions without a sufficient evidentiary basis
c) errors in discretionary decision making (“abuse of discretion”)
Remedial issues in relation to these grounds forms an important component of the course
Judges also conduct constitutional review of administrative action vis-à-vis unconstitutional
exercises of administrative powers
 breach of division of powers under ss. 91 and 92 of Constitution Act, 1867
 breaches of the Charter
 breaches of the constitutional obligations in s. 35 of Constitution Act, 1982
(4) “original jurisdiction” of courts (tort, contract, constitutional law), where applicable
(5) appeals to a court from administrative decision-makers if provided for by statute
(6) judicial review of the jurisdiction of superior courts over administrative decisionmakers (even when the statute is silent on appeal rights)
c) at “common law” (s. 96 courts)
d) Federal Courts Act
Primary Grounds for Judicial Review of Administrative Action in Administrative Law:
(3) procedural improprieties
e) breach of procedural fairness obligations
f) breach of the rule against bias
g) lack of requisite degree of independence
h) improperly constituted or authorized decision maker (e.g. unauthorized
delegation of power)
(4) “substantive” illegality or irrationality (i.e. merits review)
 review of the substantive adequacy of the factual and legal basis of the
decision
d) review for errors in interpreting the scope or meaning of statutory provisions
e) decisions without a sufficient evidentiary basis
f) errors in discretionary decision making (“abuse of discretion”)
Remedial issues in relation to these grounds forms an important component of the course
Grounds for judicial review include:
 breach of procedural fairness obligations
 highly contextual
 consideration of both what the obligations are, and whether they were
met
 breach of the rule against bias
 lack of requisite degree of “independence” from executive branch
 improperly constituted or authorized d/maker (e.g. unauthorized delegation of





Law 301: Administrative Law
Substantive
illegality or
irrationality
G. Morgan (Crane, Fall 2012) | Page 7
power)
Judicial review of the substantive adequacy of the factual and legal basis of the decision
(i.e. a merits review.)
 in Canada, a significant body of jurisprudence related to the standards of this review

This type of judicial review may include:
 review for errors in interpreting the scope or meaning of statutory provisions
 deciding without a sufficient evidentiary base
 review for errors in discretionary d/making (“abuse of discretion”)
 sometimes statutes create significant discretionary powers and historically
there was a separate body of law to consider discretion
 typically a considerable amount of deference but only within the limits of the
statute, the rule of law and the Charter.
Constitutional
review
1. breach of division of powers under s. 91 and s.92 of the Constitution Act, 1867
2. breach of the Canadian Charter of Rights and Freedoms
3. breach of the constitutional obligation in the Constitution Act, 1867

Constitutional Basis for Judicial Review: Crevier
Topic
Constitutional
guarantee for
judicial review
Background
Notes
Key question: to what extent does the Constitution guarantee the power of s. 96 courts to
conduct judicial review of the decisions of administrative agencies?
Key Concepts

Why? the frequency of privative clauses (i.e. “courts keep out”)
Crevier  the power to engage in judicial review is constitutionally protected to the extent
that superior courts can always review jurisdiction
 jurisdiction = statutory scope of powers (but Crane: slippery slope)
Prior to Crevier, SCC had held that the judicature provisions of Constitution Act, 1867 limits
provincial legislatures in relation to the kids of powers that can be given to the tribunals:

provinces do not have constitutional authority to create an administrative tribunal
and give it adjudicative powers that, according to the courts, ought to belong
exclusively to “a s. 96 court”
Re Residential Tenancies Act (SCC 1981)
Crevier v.
Residential Tenancies Act adopted a 3 step approach to determine whether the power
granted an administrative tribunal is constitutional
(1) historical inquiry  whether the impugned power is one that was exclusively
exercised by a s. 96 court at the time of Confederation
(2) judicial power  is the power a “judicial” power as opposed to a legislative or
administrative power?
 “judicial” power = one that involves a private dispute between parties and that
must be adjudicated through the application of a recognized body of rules in a
manner consistent with fairness and impartiality
(3) institutional context  consider the power in its overall institutional setting to
determine if the setting changes the character of the power sufficiently so that an
administrative tribunal should be allowed to exercise it (notwithstanding that is is a
“judicial power” that was exercised exclusively by superior courts at the time of
Confederation)
 i.e. the “institutional setting” argument can allow a tribunal to exercise such a
power provided the power can be characterized as a “necessarily incidental
aspect” of, or “ancillary to”, a broader, more comprehensive and complex
regulatory scheme
Province of Quebec  statute that creates 2 administrative d/makers (tribunals)  (1)

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 8
Quebec
(Attorney
General)
discipline committees with appeals to (2) Professional Tribunal (hears appeals from the
discipline committees), which is composed of entirely provincial court judges and does not
do anything except hear appeals
SCC 1981
Privative Clause (PC) purports to bar all judicial review of Professional Tribunal decisions
 no recourse to Quebec Superior Court by either appeal or judicial review even if it is is
alleged that the Professional Tribunal exceeded its statutory powers
 SCC holds that this privative clause is unconstitutional (contrary to s. 96 of the
Constitution Act, 1867
Constitution Act, 1867
s. 96  only federal government can appoint superior court judges
 federal appointment power = judges of superior courts
 superior courts have “inherent jurisdiction”  includes power to determine own
jurisdiction
 inherent jurisdiction = power to determine the limits of own jurisdiction
 the province cannot give this power to provincial tribunals (why? granting
these powers = creating superior courts)
 superior courts have “core powers’ only superior courts can exercise
 the province cannot give this power to provincial tribunals (why? granting
these powers = creating superior courts)
Decision
However, provinces can create “inferior” courts and tribunals, and appoint their members
 these courts are “statutory courts” with no inherent jurisdiction
 if province could create a court/tribunal and shield it from all judicial review, the
provincial court or tribunal would, in effect, be able to determine the limits of its own
jurisdiction and therefore be, by effect, a superior court (however, s. 96 functions to prevent
this by ensuring judicial review of jurisdiction, as found in Crevier)
HELD: the private clauses is not constitutional valid

 provincial legislature cannot create an administrative tribunal and purport to immunize it
from all judicial review by superior courts, thus making the decision of the tribunal final and
beyond judicial review
Privative clause cannot shield d/makers from judicial review of jurisdiction
 outside jurisdiction can also include biased decision making (hence the slippery slope of
what constitutes “jurisdictional” judicial review
Lines of
Reasoning from
Crevier
“ … a provincially constituted tribunal cannot constitutionally be immunized from
review of decisions on questions of jurisdiction … this limitation, arising by virtue of
s. 96, stands on the same footing as the well-accepted limitation on the power of
provincial statutory tribunals to make unreviewable determinations of
constitutionality”
Laskin C.J. in Crevier
(1) private clause purports to make the tribunal capable of finally determining the
scope of its own jurisdiction, which is something only s. 96 courts can do
(2) the power to conduct judicial review of administrative tribunals on jurisdictional
grounds is a “core” power of superior courts that cannot be taken away from them
 this line of reasoning is less clearly expressed in the decision

Framework for Judicial Review: Baker
Topic
Baker v.
Canada
(Minister of
Notes
Ms. Baker entered Canada as a visitor in 1981. She remained without permanent
residency status. She worked illegally as a domestic worker for 11 years. She had four
children (Canadian citizens). After the birth of her fourth child, she developed mental
Key Concepts

Law 301: Administrative Law
Citizenship and
Immigration)
SCC 1999
G. Morgan (Crane, Fall 2012) | Page 9
health conditions (post-partum psychosis and a paranoid schizophrenia diagnosis) and
applied for welfare in 1992. She was ordered deported in 1992. She applied under the
exemption (discussed below) to apply for permanent residency status from within Canada.
 when she was ill, 2 children went to their father and 2 children when to Child Services
(these 2 returned to her custody after improvements in her mental health)
Immigration Act
 applications for permanent residency must be made from outside Canada
 however, Minister (or delegate) statutorily granted a discretionary power to exempt an
individual from the regulations under the Act, or otherwise facilitate admission owing to the
existence of compassionate and humanitarian considerations
 process: written application (with supporting documentation) without an oral interview
In this case, the documentation indicated:
 she was ill but her health was improving and she was expected to return to full
functioning
 sole emotional support for the two children in her care, and very close to the two
children in their father’s care
 significant emotional burden to her children and her if they were separated by
deportation
Process:
Parliament > Immigration Act  Immigration Regulations > Minister > Immigration Officer >
Immigration Officier
D/maker = Minister delegates to immigration officer Caden who has a junior immigration
officer Lorenz who reviews the submitted facts and sends the notes, with a
recommendation, to Caden  Caden does not grant the application (i.e. upholds
deportation) but no reasons in this decision
 Baker’s lawyer requests reasons and the d/maker forwards the notes from the junior
immigration officer
 ¶5: Lorenz’s notes and recommendations
 on welfare
 four children in Canada and four children in Jamaica
 only two children in direct care
 nothing in Jamaica (and potential of mental health deterioration)
 inflammatory remarks highlighted with CAPITAL LETTERS (i.e. number of
children, “IS STILL HERE!”)
 comments on the system: “This case is a catastrophy [sic]”; “It is also an
indictment of our ‘system’”; “”I am of the opinion that Canada can no longer afford
this kind of generosity”
(1) why was the
case at the
federal court?
(2) how did the
case get to the
courts at both
the first
instance and at
the subsequent
Humanitarian and compassionate grounds “exemption” = “where the Minister is satisfied”
 departure from the rule
 broad discretion (no explicit statutory test
federal d/maker = federal court
Federal Courts Act s. 28  Federal Court or Federal Court of Appeal
Hurdle  Immigration Act requires that a Federal Court judge granted leave for judicial
review
2nd Hurdle  appeal of leave for judicial review can only proceed to Federal Court of
Appeal if the trial judge certified a serious question of general importance


Law 301: Administrative Law
appeal levels?
(3) what are the
various “admin
law” issues?
(4) what is the
difference
between review
of “procedural
issues” in the
case and review
of the
“substantive
issue”?
(5) what was “at
stake” in this
case for Ms.
Baker?
G. Morgan (Crane, Fall 2012) | Page 10
Procedural issues (“how”)
Substantive issues
 what procedure is sufficient in this case?
(i.e. oral hearing or written submissions)
 were reasons required? if yes, were
reasons provided in this case?
 was there a reasonable apprehension of
bias in this case?
 courts tend to be very comfortable (and in fact strict) with the procedural issue (five
Baker factors includes consideration of institutional constraints and the process of the
decision maker)
 more cautious maneuvering around the substantive issue(s) (more concerned with
expertise of the decision, the scope of the statute, etc.)

Importance of how to characterize the interest engaged in the administrative decision:
 applicant for the exercise of discretionary exemption (asking to be considered other than
the norm)
 mother who the state was deporting and separating from her children (role of advocacy
in administrative law decisions)


¶15: the case “determines whether a person who has been in Canada but does not have
status can stay in the country or will be required to leave a place where her or she has
become established …”
“this is a decision that in practice has an important significance”
(6) where does
the
“administrative
law” come
from?
(9) What
remedy or
remedies were
imposed?
 but balanced by the administrative element (i.e. the outcome was not to insist on an oral
hearing)
 procedural issues  common law
common law attaches to silent statutes / statutes with gaps / buttressing
statutory expectations
 basically, it attaches unless the statute specifies that the common law does
not apply
 legislation trumps common law if express (only leaving the Charter, which
applies to legislation)
 substantive issues  multiple sources
 international convention (LLP interpretation)
 in judicial review, the remedies are limited (in both procedural and substantive review,
with a limited exception) as the court is simply supervising the exercise of jurisdiction (i.e.
following proper procedures or improper exercise of discretion). As a remedy, the decision
is set aside and set back to the original decision making body to make a decision in
accordance with the legal findings within the case (i.e. does not substitute its own decision
like it would in a non-judicial review context.)
What happened in this case?
 the decision was send back to Immigration in 1999
 December 2001  Ms. Baker was awarded permanent resident status


Law 301: Administrative Law
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Part II: Procedural Review
Introduction to Procedural Fairness
Topic
Instrumental
purposes of
participatory
rights
Balancing the
other side
Sources of
Procedural
Entitlement
Notes







democratic values  people should participate in decisions that affect them
rule of law  legitimacy, reconciliation w/ negative decisions
facilitates d/making  more information = more informed decision making
equality (formal)  other decisions are more likely to be consistent
dignity interests are furthered in participation
individual autonomy
reasons  accountability and transparency (tied to rule of law)
Problem  not necessarily realistic, and these values do not give guidelines on how to
limit these rights
Increased procedures / participation rights can promote a high level of natural justice
However, administrative tribunals are often designed to provide more efficient and costeffective decision making and can be coupled with more informal/accessible processes to
invite participation
(1) statute law  enabling act or regulations
(or general statute re: procedures such as Administrative Tribunals Act (BC),
Statutory Powers Procedures Act (ON), Administrative Justice Act (QC),
Administrative Procedures and Justice Act (AB))
(2) policies and practices with respect to procedures
(3) common law procedural obligations
(4) constitutional provisions (esp. Charter s. 7) or other quasi-constitutional rights
document (i.e. the Quebec Charter, Canadian Bill of Rights)
Key Concepts



* try (1) and (2) before CL as will not need to establish what the procedural obligations are
appropriate to the decision making context
Common Law Procedural Fairness: Application
Historical Development of Procedural Fairness Obligations ** SEE WORD DOC
Topic
Natural
justice
Historical
Development
Notes
Common law concept of natural justice has two primary aspects:
(1) audi alteram partem (“hear the other side”)  generally entails a right to notice
and a right to be heard
(2) nemo judex in sua causa (“no one should be a judge in his/her own cause”) 
generally the rule against bias
In early English common law, hearing rights were generally inferred as a matter of justice
when the important rights of an individual were being affected by the decision or action at
issue (especially if allegations of wrongdoing were at issue)
 ex: Cooper v. Board of Works for Wandsworth District (1863) (ref. Huscroft CB 151)
In later English common law, restrictions on access to hearing rights arose in the 20th
century (1920 – 1960). The common law focused on the classification of the function or
decision being carried out:
i)
judicial or quasi-judicial  natural justice applied; hearing rights accorded;
certiorari and prohibition available
ii)
administrative, executive or ministerial decisions (i.e. all public authority
decisions that were not judicial or quasi-judicial)  natural justice did not
apply; no hearing rights accorded; certiorari and prohibition NOT available
Key Concepts


Law 301: Administrative Law
Interaction of
sources
Common Law
Procedural
Fairness
Cooper v.
Boards of
Works for
Wandsworth
District
UK 1963
(ref. in
Huscroft CB
151)
Restrictive
Approach
Undoing
Restrictions
McInnis v.
Onslow-Fane
Eng. Ch.
1973
G. Morgan (Crane, Fall 2012) | Page 12
The common law may impose procedural fairness requirements
 however, the statute can override the common law if it does so expressly or by clear and
necessary implication (i.e. the statute can “oust” the common law)
 however, the statute can be overridden by a Constitutional provision (or rights
document) if a provision applies to the circumstances
Two fundamental questions
(1) threshold for procedural fairness  any?
(2) content of the procedural fairness obligation  what?
Facts: anyone building a house had to give notice to the Board of Works (so that they could
receive information about drain locations, etc.); on default of notice, the department had the
power to demolish the house; the act was silent on notice prior to demolition
 Cooper builds a house (he alleges he provided notice, albeit late, but Board of Works
alleges that he did not). The Board of Works tears down his house when it was almost
complete.
 interesting case as not a judicial review
 Cooper sued the department in tort law  municipality raised the defense of
statutory authorization
 however, the municipality lost  court grafted on requirement of notice and
hearing rights onto the exercise of the statutory authority to demolish the house
(i.e. the authority can only be exercised in accordance with natural justice)
 although there are no positive words requiring hearing rights, the justice of the
common law supplies the omission of the legislature
Lord Atkin in Electricity Commissions (UKCA 1924):
“whenever any body of persons, having legal authority to determine questions affecting
the rights of subjects and having the duty to act judicially, act in excess of their legal
authority, they are subject to the controlling jurisdiction of the King’s Bench division…” [the
“control” being exercised through the writs of certiorari and prohibition]
Lord Hewat in Church Assembly (UK 1928) interpreted Lord Atkin to mean that a decision
had to both determine rights and involve a “superadded duty” to act judicial in making in
order for natural justice to apply.
 if the decision was not a final decision (i.e. not determinative), natural justice did
NOT apply
 if the decision involved only privileges (as opposed to rights), natural justice did NOT
apply
 if no “superadded duty” to act judicially could be found within the words of the
statute, natural justice did not apply
Ridge v. Baldwin
 a Chief Constable was a public office holder who could not be dismissed except for
cause. The HL held that the Watch Committee [police board] could not exercise its power to
dismiss lawfully unless it had given the Chief Constable notice of the grounds for dismissal
and an opportunity to be heard. HL did away with the need to find a “superadded duty to act
judicially” before NJ could apply. Rather, the Watch Committee had a duty to act judicially
because of the nature of the power being exercised.
Re H.K. (UKQB 1967)
 immigration authorities have a “duty to act fairly” in making decisions about individuals
Early British case using the category approach to determining the threshold
(1) “forfeiture cases”  taking away existing right or status for reasons related to an
individual’s fitness (procedural fairness applies)
(2) “pure application cases”  denial of a licence or other benefit where the
individual has no reason to expect a positive decision and where a negative
decision will not ‘case a slur’ on the person’s reputation (procedural fairness does





Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 13
not apply)
 Crane: perhaps, through Baker, pure application cases really mean that the
hearing right is an application (i.e. Baker was heard through written submissions)
(3) “expectation cases”  an application made in circumstances where there is a
legitimate expectation of a favourable decision, procedural fairness will likely apply
(particular if denial is related to the fitness of the individual)
* However, the category approach is departed from in Canadian jurisprudence
Canadian Expansion of Procedural Obligations: Nicholson
Topic
Nicholson v.
HaldimandNorfolk Reg.
Police
Commrs.
SCC 1979
Notes
Facts: police officer (“PO”) discharged after 15 months of service with no reasons and no
opportunity to be heard
Police Act Regulations s. 27 provided:
 if the PO for over 18 months, the PO is not subject to penalty except after a hearing and
final disposition of charge after appeal
 s. 27 also starts that this provision does not affect the authority of the Board “to dispense
with services of any constable within 18 months of his becoming a constable”
ONCA determined that s. 27 implied that there were no hearing rights or appeal for a PO
under 18 months of service
SCC (5/4 majority) held that there was a “halfway house” between the hearing rights of
those over 18 months of services and not having any hearing rights at all  a duty of
fairness was owed to Nicholson in the circumstances
Reasons:
(1) why not covered by the CL (which does not confer rights to employees)?  PO
was not an ordinary employee but rather an officer (office holder)
Types of employees
1. mere employee  no hearing rights
2. officer holder dismissible only for cause
3. office holder dismissible at pleasure
 Ridge and Baldwin held that the PO was dismissible only for cause (as (3)
would not have any hearing rights)
(2) proper interpretation of the statute is that pre-18 months entitled a PO to duty of
fairness (common law requirement) and post-18 months entitled a PO to full
hearing and appeal rights per the Regulations
(3) what was the content of the duty of fairness in this case? something less than
natural justice  Board must give Nicholson reasons why he was no longer
wanted and an opportunity to respond, orally or in writing, as the Board chooses
(4) remedy: decision was quashed and the matter was remitted to the Board to rehear
in accordance with the duty of fairness described by the SCC
* duty of fairness distinguished from natural justice (which is more consistent with the rights
granted to a PO with more than 18 months service)
* hearing rights accord the state with an opportunity to ensure that a mistake is not being
made  allows for better decision making
* loss of employment is a significant thing to have at stake
* final (no opportunity for appeal)  hence need to ensure a “better” decision (i.e. front end
obligations)
Key Concepts

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 14
What happened?
 the Board scheduled an oral hearing and cited 11 specific allegations of misconduct
 further judicial review skirmishes, which Nicholson loses
 result: Nicholson was terminated but he was able to argue that he was employed until
the SCC decision (the original termination was quashed, which meant he was still employed
/ entitled to damages for notice)
Continued
 moving away from the need to distinguish between natural justice and the duty of
developments fairness (unless statute law requires that the distinction be made by use of the old
classification terminology)
 modern articulation: duty of procedural fairness (Cardinal)

Ex: Martineau v. Matsqui Inmate Disciplinary Board (No. 2) (SCC 1980); Cardinal v.
Director of Kent Institution (SCC 1985)
per Dickson J. in a minority concurring opinion in Martineau:
“In general courts ought not to distinguish between Natural Justice and the duty of fairness,
for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance
with the rules of natural justice, yields an unwieldy conceptual framework.”
per LeDain J. in Cardinal: “This Court has affirmed that there is, as a general common law
principle, a duty of procedural fairness lying in every public authority making an
administrative decision which is not of a legislative nature and which affects the rights,
privileges and interests of an individual.”
 modern articulation of the threshold for procedural fairness
Modern
development
Cardinal v.
Director of
Kent
Institution
SCC 1985
further per LeDain J. in Cardinal: “...denial of a right to a fair hearing must always render a
decision invalid, whether or not it may appear to a reviewing court that the hearing
would likely have resulted in a different decision. The right to a fair hearing must be
regarded as an independent, unqualified right which finds its essential justification in the
sense of procedural justice which any person affected by an administrative decision is
entitled to have. It is not for a court to deny that right and sense of justice on the basis of
speculation as to what the result might have been had there been a hearing.”
 generally the courts are not receptive to the argument that the same decision would
have been reached with or without procedural fairness (i.e. speculative)
Current understandings of procedural fairness move away
 the closer the process resembles a judicial or quasi-judicial process, the higher the level
of procedural fairness
Facts:
Prisoners were charged with hostage taking in a prison riot  transferred from medium
security to maximum security at Kent Institution, where the director placed them in solitary
confinement
 director had discretion to make the decision within the scope of safety/security of
the prison
 prison system had a review board that reviewed whether segregated prisoners
should remain segregated
 although the review board did not meet initially, the review board eventually
recommended that the prisoners be de-segregated
 director decides to leave prisoners segregated per discretionary power but does
not provide notice or a hearing to the prisoners
 prisoners seek habeas corpus from the provincial court (exception: although
prisoners were within federal system, this remedy was available from the provincial
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
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 15
court)
habeas corpus  prerogative writ requiring the body of a person restrained of
liberty be brought before the court to investigate and determine the lawfulness of
the restraint
Issues:
 the director’s decision after the recommendation to release the prisoners into the
general population
 sub-issue: whether the review board was convened sufficiently soon after the initial
decision to segregate the prisoners
BCSC  procedural fairness was owed and not met
BCCA  procedural fairness was met in this case
SCC  procedural fairness was owed and it was not provided; content of procedural
fairness = (1) notice that the Director intended to not release despite the recommendation
of the review board, and (2) an opportunity to be heard prior to the decision to not accept
the recommendation; accordingly, the continued segregation was rendered unlawful
General threshold test (¶14): “This Court has affirmed that there is, as a general common
law principle, a duty of procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and which affects the rights,
privileges or interests of an individual”
Knight v.
Indian Head
School
Division No.
19
SCC 1990
Importance of context: “it should be emphasized that it is not every breach of prison rules
of procedure which will bring intervention by the courts. The very nature of a prison
institution requires officers to make ‘on the spot’ disciplinary decisions and the power of
judicial review must be exercised with restraint. Interference will not be justified in the case
of trivial or merely technical incidents”
 emergency situation as an exception
 however, typically procedural fairness must be provided as soon as possible after
the emergency (i.e. the initial decision to segregate the prisoners would likely be
captured in this sense, but it would need to be followed by a review of the decision and
the exception certainly did not apply to the 2nd decision to continue segregation)
Focus on the case as a matter of procedural fairness  no longer leading case on office
holders at pleasure (modified in Dunsmuir)
Facts: Knight was offered a contract renewal of a shorter time frame that previously.
Constructive dismissal. Knight held his position (superintendent of the school board) at
pleasure. He claimed procedural fairness  i.e. a hearing should be held
General framework of analysis (L’Heureux-Dubé J.):
1) does a duty of fairness at common law apply in the circumstances? 
threshold?
2) if so, is there anything in the statute that modifies or abrogates this duty? 
defence of “statutory authorization”?
 Kane v. Board of Governors of the University of British Columbia (SCC 1980):
“to abrogate the rules of natural justice, express language or necessary implication
must be found in the statutory instrument”
3) if there is a duty and it is not modified or abrogated, what is the content of the duty
of fairness in the circumstances of the case?  content? (apply Baker 5 factors)
4) has the duty of fairness been met?  factual determination (what happened in
terms of “notice” and “a right to be heard” being accorded? was the process in this
case sufficient to meet the duty of fairness that applies in all the circumstances?)
5) if duty of fairness has not been met, is there any reason that the court would not

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 16
provide a remedy?  discretionary nature of judicial review remedies (c.f. Homex)
Three factors to determine threshold:
1) the nature of the decision to be made by the administrative body
 legislative and general decision making vs. administrative and specific decision
making
 L’Heureux-Dubé suggests that
a) acts of a legislative and general nature do not trigger procedural fairness
obligations (c.f. Inuit Tapirisat of Canada)
b) decisions of a preliminary nature will generally not trigger procedural fairness
obligations BUT Crane suggests this is an overstatement
 not a determinative issue (typically, the question of finality is addressed at
all stages, with the different stages of a decision-making procedure
suggesting different levels of procedural fairness  c.f. Re Abel, Irvine)
2) the relationship the relationship existing between that body and the individual
 typically an analysis of
 however, not a significantly discussed element of threshold decisions (typically
more mileage out of the other two factors)
3) the effect of that decision on the individual’s rights
 rights, privileges or interests [of an individual] (Re Webb  is there a valid
distinction between a “pure application” case and a forfeiture?)
n.b. in an exam, it will be clear whether Crane wants the threshold question to be
addressed (i.e. if she indicates that the threshold was met, use the broader framework of
Knight but do not delve into the three Knight threshold factors and instead focus on the
Baker five factors to determine the content of procedural fairness)
Content of procedural fairness (current leading case, however, is Baker):
 concept of procedural fairness is eminently variable
 content must be decided in the context of each case
 fairness is entrenched in principles governing the legal system
 closeness of the administrative process to the judicial process should indicate how
much of these governing principles should be imported into the administrative
decision making
 finding: minimal procedural fairness (held office at pleasure, which meant that there did
not have to be a reason) = reasons for dismissal, opportunity to be heard with respect to
these reasons
Evolution of
the Threshold
Question
In this case, the SCC determined that procedural fairness was met. Minimal content
because of the nature of his position  the negotiations between Knight and his lawyer,
and the school board were sufficient to identify reasons and provide an opportunity for
input.
Baker (SCC 1999): “The fact that a decision is administrative and affects ‘the rights,
privileges or interests of an individual’ is sufficient to trigger the application of the duty of
fairness”

Common Law Procedural Fairness: Threshold, Limitations and Exceptions
Threshold Test: “Rights, Privileges and Interests”
Topic
Rights,
privileges and
interests
Notes
 usually easily passed and some procedural fairness will be owed provided there is
something sufficiently serious at stake for an individual
Key Concepts

Law 301: Administrative Law
Re Webb and
Ontario Housing
Corporation
ONCA 1978
G. Morgan (Crane, Fall 2012) | Page 17
Ex: an administrative decision that threatens to take away pre-exisitng rights or status of an
individual (particularly property rights or liberty) but also “privileges” such as holding a
licenses
Facts: Webb (welfare recipient) lived in subsidized housing but no statutory right to
housing. Ontario Housing Corporation (statutory body) Problems arose with Webb’s
children and their behaviour, and she was advised that her housing would be in jeopardy if
their behaviour did not change. Property manager recommended that the lease be
terminated. Eventually, the OHC terminated the lease.

Re Webb suggests a distinction between procedural fairness hearing rights for an existing
right, status or privilege versus a “pure application” for a statement benefit that an individual
has no right or expectation to receive
 although the distinction is not firmly established in the case law, Justice MacKinnon’s
decision highlights the importance of characterizing what’s at stake and the nature of the
individual’s “right, privilege or interest”
 n.b. there may be different ways to characterize an interest and its impact (c.f. Baker)
In this case, the court determined that Webb was owed procedural fairness (distinguishing
between an application for the subsidized housing, which would be a mere application, and
Webb, who had existing access to subsidized housing)
 however, minimal content granted to the procedural fairness
Limitation: Non-Final Decision-Making
Topic
Finality
Notes
More than just “is there a decision”  determining procedural fairness in non-dispositive
decision making procedures
c.f. Re Abel, Irvine
Key Concepts

refers to decision making processes such as:
 investigatory functions or processes (e.g. fact gathering or fact finding processes)
 inquiry processes that find facts and make reports to a final decision maker, with
or without recommendations (Re Abel)
 various other preliminary stages of multi-stage process of decision making
questions:
 does procedural fairness attach to such processes?
 if so, when? (at all stages? one stage? some stage?  which ones and why?)
Re Abel
ON Div. Ct.
1979
key factors considered (Grange J. in Re Abel ¶43):
(1) the proximity question: the interrelationship between various stages of a multistage process (i.e. the impact of the preliminary process on the final decision)
(2) the exposure to harm question: the immediate impact or effect of the preliminary
process (if any) on the rights/privileges/interests of the person claiming procedural
fairness (i.e. in some circumstances, an immediate negative effect on reputational
interests could occur at the preliminary non-final stages)
Facts: Advisory Review Board (“ARB”) reviews NCRMD patients confined to psychiatric
institutions.
Stage
1st stage
2nd stage
3rd stage
Process
Mental health institution sends a report to the ARB on
the patient
ARB reviews and reports with recommendation to LG
LGiC makes decision on release.
Decision Maker
LGiC

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 18
Procedural fairness question: does the ARB have to disclose the institution’s report?
(opportunity to make case is dependent on knowing fully knowing the case)
 problem: the ARB is not making a decision (and it’s already
Grange J.: ARB has an obligation to disclose

procedural fairness attaches despite being non-final decision making given
(1) proximity to the decision: close connection between this report and the LGiC’s
decision
(2) exposure to harm: significant given liberty interests engaged in decision
 however, the law recognizes circumstances in which disclosure may not be appropriate
given the larger context of interests (i.e. national security, institutional function, witness
privacy, individual’s health/well-being)
Two stage decision-making process: (1) Advisory Review Board 
recommendations/report, and (2) LG  decision
Mental Health Act: discretionary power to grant oral hearing (which was granted) 
primary question was one of disclosure (access to a report from the institution to the ARB,
which would be relied upon to make recommendation to LG)
 how can the patient have an adequate opportunity to respond without the report?
Assessing PF requirements at a preliminary stage  assess (1) proximity [no chance of
release without favourable report from ARB] and (2) exposure to harm
Decision: generally, the patient is entitled to full disclosure to know the full case against
him/her and to have the opportunity to respond. However, in this situation (and similar
ones), there may be reasons to limit disclosure to prevent harm to the individual as well as
the nature of the report (i.e. if it was not written with the intention of disclosure, it may be
prudent
 accordingly, the obligation was on the ARB to review the report and make a decision on
whether any of the content would be unsafe (but generally would expect report to be
excised as opposed to withholding)
Irvine v.
Canada
(Restrictive
Trade Practices
Commission)
SCC 1987
n.b. pre-Charter and pre-FIPP decision
Multi-stage decision making process:
(1) Hearing Officer (HO) investigations and holds a proceeding that produces a
“Statement of Evidence,” which is sent to the RTPC for investigation
 purpose: gather evidence as to whether the Act was breached
(2) Restrictive Trade Practices Commission (RTPC) reviews statement and has the
option to hold a further hearing (with substantial PF rights) to determine whether
the Act was breached
(3) Minister receives and publicizes report of RTPC
* n.b. potential spin-off to Minister after stage 1  option to prosecute an offence
(but this would
Combines Investigation Act  granted right to counsel during HO’s investigation but HO
restricted counsel involvement to re-examining the client (i.e. no cross-examination)
Was PF required at (1)? Yes, but only a minimal amount (and it was met by the right to
counsel, albeit restricted, as it was.)
 private hearing therefore minimal concern for reputational interests
 emphasis on HO as only obtaining “raw material”  no findings of fact,

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 19



Finality &
Rehearing
no recommendations, no penalties
Statement of Evidence goes to RTPC where further investigation
occurs (+ significant PF is accorded)
even in spin-off, the accused would be accorded a full criminal
investigation
concern with unduly burdening law investigation (Crane 
Significance of cross-examination rights
When there is a more significant level of PF required in a particular context (especially at
the higher end), cross-examination rights are often sought best route to “ferret out” the
truth”
Related issue: can deficiencies by cured by PF accorded at a later administrative stage
such as an “internal” appeal?

Taiga Works Wilderness Equipment Ltd. (BCCA 2010): the answer is maybe  varies
from case to case based on all the circumstances and particularly on the nature of the
appeal process (probably cured by a “de novo” appeal  investigation from the beginning
BUT not by an “on the record” appeal  based on the existing record)
Five factors to consider (approved by BCCA in Taiga Works):
(1) the gravity of the error committed at first instance
(2) the likelihood that the prejudicial effects or the error may have also permeated the
rehearing
(3) the seriousness of the consequences for the individual
(4) the width of the powers of the appellate body
(5) whether the appellate decision is reached only on the basis of the material before
the original tribunal or by way of rehearing de novo
Exception: “Legislative and General” Decision-Making
Topic
Legislative and
General
decision
Canada v. Inuit
Tapirisat
SCC 1980
Notes
Due to separation of powers, PF does not attach to the enactment of statutes by the
legislature (Inuit Tapirisat)
 typically does not attach to other types of “legislative and general” decision
making (Inuit Tapirisat)
 CARI  requirements for notice/consultation for legislative and general decisions
typically derive from statute
Facts: Inuit Tapirisat gets standing to appear in the hearings on Bell’s application to the
CRTC to increase telephone rates  objection: increase in rates should be conditional on
an improvement in services in the North. CRTC grants rate increase without condition.
Inuit Tapirisat
CRTC enabling act provides two types of appeals: (1) petitions to Cabinet under s. 64(1) 
discretionary; and (2) appeals to the FCA on questions of law or jurisdiction under s. 64(2)
 petitions did not require an actual petition (Cabinet could initiate on its own
accord)
In this case, Inuit Tapirisat pursued the petition route. Cabinet got a Cabinet document
prepared by the Department of Communications that summarizes the hearing.
Issue: are PF common law hearing obligations attach to the Cabinet petition process?
Decision: legislative decision therefore PF was not accorded
Reasons:
(1) general decision  not about a specific individual or group but about all rate
Key Concepts


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 20
setters in a particular region
(2) function of the decision, rate-setting, was originally a legislative decision that had
been delegated to the CRTC  wording of the specific provision emphasized the
small-p political nature of their role (“discretion”, etc.); way of keeping Cabinet’s
“finger in the proverbial pie”
Questions:

Homex Realty
and
Development
Co. v. Wyoming
(Village)
SCC 1980
did the nature of the decision maker (Cabinet) affect the outcome? Yes  albeit
backwards (Cabinet = Cabinet, therefore courts should avoid interference with its
operation due to concerns of efficiency
 does Inuit Tapirrisat make all Cabinet decision making immune from PF
obligations? No  court notes that there is still a role to ensure that Cabinet
decision making is consistent with statutory and constitutional obligations, and
there may be a different fact pattern/context that would result in the application of
CL PF rules (c.f. R. v. Winneke HCA 1982)
 emphasis on substance rather than form (especially with respect to municipal by-laws,
which are subordinate legislation delegated by the province)

Facts: Homex and municipality were disputing whether the company had the obligation to
pay for the installation of services in a sub-division that it owned and was selling off. Longstanding negotiations. Eventually, municipality passes a bylaw that designates the land in
a particular way, which would require the developer to obtain a registered plan (which
would allow the municipality to impose installation fees).
 essentially, the bylaw was used to “trump” the negotiations / judicial process
Decision: the bylaw passed by a municipality was held to be subject to PF hearing
obligations notwithstanding that a bylaw is clearly subordinate legislation
Key: property rights at stake (Cooper v. Wandsworth Board of Works  decision on tearing
down a house without notice)
 while the form (bylaw) may not be administrative, the content was purely administrative
(specific decision)
 while all parties were clear on each other’s positions, Homex did not have notice that the
municipality was going to use its bylaw making power in such a fashion (and therefore did
not have the opportunity to respond before the power was exercised)
 no suggestion that the use of the bylaw was incorrect; merely the lack of notice
Congrégation
des témois de
Jéhovah de StJérômeLafontaine v.
Lafontaine
(Village)
Remedy: a remedy is always discretionary in judicial review, and a primary disqualification
has been poor conduct on the part of the appellant (i.e. the “clean hands” argument from
equitable remedies)
 Homex was a “bad apple”: inconsistent and contradictory; lack of frankness;
attempt to shirk responsibility; checkerboarded the land to avoid repercussions of
the municipality’s bylaw
 Problem: counsel was not asked to make submissions on remedies  potential
PF problem?! (c.f. Dickson J.’s dissenting judgement)
Facts: the Congrégation wanted to establish a place of worship; the village advised that
they could in a place of worship in an area zoned community; the Congrégation determined
that it could not obtain land in that area; the Congrégation found a location in a residential
area but the village rejected with written reasons (generally, that it would have an unfair
burden on the other rate payers). In the second and third attempts (regarding a purchased
piece of land in a commercial zoned area), the village denied without significant reasons.

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 21
Little discussion of threshold issue  presumption that it applies to the applications for
rezoning (n.b. not a bylaw like Homex Realty but rather
 ¶3: “A public body like a municipality is bound by a duty of procedural fairness
when it makes an administrative decision affecting individual rights, privileges or
interests …”
SCC 2004
Canadian
Association of
Regulated
Importers v.
Canada
FCA 1993
Main issue  content of procedural fairness (Baker analysis)
 decision: PF was owed but it was not accorded given the lack of written reasons
Facts: a ministerial decision set a quota policy for importers of hatching eggs and chicks
from the USA where there had previously not been regulation. A limited group of “historic
impoters” had established viable businesses importing eggs and chicks in the unregulated
environment but the new quota policy would distribute quota in such a fashion that would
cause economic loss to the historic importers
 significant economic (property) interest given the income
 impact: 39 hatcheries and 45 chicken importers
 while the government was aware of the existence of historic importers, it did not
obtain the specific information

FCA decision: PF did not apply as it was a legislative and general decision based on broad
public policy considerations
 while it may have been nice to give notice, there was no requirement to give historic
importers notice or an opportunity to be consulted
 in these situations, the requirements for notice/consultation typically derive from statute
n.b. the question of stakeholders can be problematic  typically only recognize PF for
existing stakeholders as opposed to potential stakeholders who would obtain rights under
the proposed change
Extending Fairness Obligations Through the “Legitimate Expectations” Doctrine
Topic
Legitimate
Expectations
Doctrine
Notes
LED can extend common law PF and could potentially provide some PF on the legislative
and general end of the spectrum.
Key Concepts

Key Concept: the state is bound by a promise they made with respect to procedures
Two explanations for LED:
(1) LED as a way to fill in gaps in the common law
 primary gap = legislative and general decisions (esp. regulation making)
 problem: post-CAP, it is still unclear whether LED applies to regulation making
 Crane: likely LED will not be applied against primary legislators (i.e. the legislature
or Parliament)
Development
Policy
(2) LED as a way to get better procedures than available at common law
Fairly recent development in administrative law  Council of Civil Service Unions v.
Minister for the Civil Service [“GCHQ”] (UKHL 1985)
Canadian adoption:
Old St Boniface Residents Association v. Winnipeg (City) (SCC 1990)
“The principle developed in these cases is simply an extension of the rules of
natural justice and procedural fairness. It affords a party affected by the decision
of a public official an opportunity to make representations in circumstances in
which there otherwise would be no such opportunity. The court supplies the
omission where, based on the conduct of the public official, a party has been led to
believe that his or her rights would not be affected without consultation.”
The doctrine can be rather easy to meet (low evidentiary hurdle), because the purpose is to


Law 301: Administrative Law
Considerations
Timing of
Legitimate
Expectations
Baker v.
Canada
SCC 1999
G. Morgan (Crane, Fall 2012) | Page 22
provide fair processes (not outcomes.)
Essentially, it would be unfair to discriminate against those who were not informed (do not
want to favour the well informed over the less informed)
The claimant can also claim legitimate expectations after the fact when arguing that past
practices supported a legitimate expectation (Crane)
 do not have to rely on in advance if you rely on this form.
Four Baker factor (¶26) = legitimate expectations the fourth Baker factor


Two meanings of LED:
(1) describes the interest in receiving particular PROCEDURE (i.e. the one was
promised)
(2) describes a particular kind of substantive interest (i.e. that a person had a
legitimate expectation of a particular OUTCOME)
 if a claimant has a legitimate expectation that a certain result will be reached in his or
her case, fairness may require more extensive procedural rights than would otherwise be
accorded
Reference re
Canada
Assistance
Plan
SCC 1991
n.b. legitimate expectation will NEVER proscribe that outcome but legitimate expectation of
a particular outcome may result in a higher level of PF
Facts:
 CAP = federal statute, started cost-sharing program in 1960s w provs to deliver
social assistance
 Section 5 of the statute says feds will pay for 50%
 Section 8 said they would enter into agreements w the provs as long as there
were social assistance statutes in the provs, or as long as they are not terminated
by mutual consent or 1 year notice, or as long as the statute isn't amended by
mutual consent
 Realities of Canadian finance politics: (1) feds have the best tax base/power; and
(2) provs have jurisdiction over the expensive stuff (health, education, social
assistance)
 Went swimmingly for 22 years until 1990 = HUGE FISCAL CRISIS
 federal debt was massive
 prompts major deficit-reduction planning included amending the CAP statute
unilaterally, and without notice
 The "cap on CAP"
 BC, ON, AB all quite pissed
 as high income provs, will bear a lot of these cuts
Issue:
 whether the previous provisions of the CAP statute and agreements bw feds and
provs had created a legit exp that the fedl govt would not amend without consent
Why was this strategy ingenious?
 didn't attack the parliamentary sovereignty by arguing that parliament couldn't amend
the statute
 attacked the decision of the Cabinet to introduce into Parlt the proposed amendments
b/c the exec officials had created the expectation
 ingenious, but doomed
Decision (Sopinka J.): no legitimate expectation

Parlt cannot bind the hands of subsequent legstres - the courts cannot declare a
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Law 301: Administrative Law

G. Morgan (Crane, Fall 2012) | Page 23
prior statute to be unwise
 This is a VERY IMPORTANT PRINCIPLE - Governments are NOT allowed to
bind the hands of subsequent Governments (pretty vital, democratically)
Although technically amending the constn binds new governments, that's kindof a
separate issue
Legitimate Expectations Doctrine
 Can NEVER use it to get a substantive outcome (and in this case BC isn't looking
for "consent" as they say - they're looking for a veto - the powr to stop it unless
they consent… which they don't wanna)
 there is NO support in Engl or Cdn law that the doctrine of legit expectations can
create substantive rights
 If the doctrine of legitimate expectations required consent, and not merely
consultation, then it would be the source of substantive rights; in this case, a
substantive right to veto proposed federal legislation.
 You cannot do indirectly what you cannot do directly
 Cannot fetter Cabinet just b/c you can't fetter Parlt
Mt. Sinai
Hospital v.
Quebec
SCC 2001
"Parliamentary government would be paralyzed if the doctrine of legitimate expectations
could be applied to prevent the government from introducing legislation in Parliament. Such
expectations might be created by statements during an election campaign. The business of
government would be stalled while the application of the doctrine and its effect was argued
out in the courts. Furthermore, it is fundamental to our system of government that a)
government is not bound by the undertakings of its predecessor. The doctrine of legitimate
expectations would place a fetter on this essential feature of democracy" (Ref re CAP
 Only the Executive can introduce a money bill (it's in the Constitution), so this
really would be fettering Parliament not just the executive
 Cabinet is the "buckle" that joins together the legislative and executive branches
 Case had some interesting things to say about manner and form, but we currently
don't care for the purposes of the legit expectations doctrine.
Facts: Mt. Sinai was initially a long term care facility but then became also a short term
care facility. January 1991, Mt. Sinai agrees to move to Montreal, but asks that the
hospital’s permit is changed to reflect the actual type of service they provided (long and
short). Hospital moved, but then government refused to grant the new permit. Hospital
argues that remedy ordered should be mandamus:
1) Already have a functional permission (de facto) to operate the way they’re
operating, should receive an official one via mandamus
2) Legitimate expectation
3) Promissory estoppel
4) There’s only one reasonable decision – to grant a permit
Decision:
1) Majority: none of the above but the court does find that the discretion of the
minister to issue the permit was exercised, around the time Montreal occurred,
and any decision to refuse the permit was not a legitimate withdrawal of
discretion.
 Crane: this is very odd and unique reasoning that may not be useful in
subsequent cases
2) Binnie: criticized majority and granted mandamus on substantial judicial review
(found that the exercise of statutory discretion was “patently unreasonable”)
Legitimate expectations:
Binnie holds the only legitimate reasonable discretion is to issue to permit – therefore under
substantive JR he finds it should be awarded.
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Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 24
Binnie’s approach (which is confirmed in Mavi):
1) conduct of representing power
2) the presence of promises, or past practices, conduct or representations
3) the expectation must be
a) clear,
b) unambiguous and
c) unqualified.
n.b. the doctrine is not substantive
Estoppel
Side note: an earlier court quashed Mt. Sinai on procedural grounds (no notice nor
opportunity to be heard). The issue with that remedy is that the government could then give
notice, hear the hospital but then still deny the permit.
In Mt. Sinai, the Court of Appeal found mandamus based on estoppel. Binnie (for himself
and McLachlin) left open the door for estoppel, but outlined why it would be tough to have
public law estoppel.

Concerns with Estoppel:
 confined to procedure and not outcome – don’t want to tie the hands of officials,
they should be able to change policies without too much trouble and should be
able to adapt to changing circumstances, and courts should be careful not to
invade domain of executive decision makers.
 Binnie: US public law has been equally reluctant to recognize public law estoppel.
Issue: who should we listen to re: promises (who can bind government)?
 To bind government (essentially), there would have to be a really authoritative
source (high evidentiary hurdle)
Mavi v. Canada
(Attorney
General)
SCC 2011
Requirements for Estoppel:
(1) legitimate reliance  high evidentiary burden
(2) reasonable for the party to rely on the representation
(3) extreme harm if the representation is not upheld
(4) gross injustice would result without legitimate expectation being honoured
Facts:
 Federal immigration sponsorship to Canada (family class), the sponsor must
undertake to be responsible for the sponsoree for a period of time
 Federal government can claw back any money paid by the government to the
sponsoree as if it were a debt of the sponsor
 Statute allows the state to file a certificate in the Federal Court indicating that the
debt is owing, and then it becomes enforceable as a judgement of the court
 In this case, a number of sponsored immigrants applied for/ were receiving social
assistance, and the sponsors were in default of their undertakings, and the state
began the undertaking process
Procedural fairness obligation:
Procedural fairness attaches to the debt collection.
 The court finds that there is discretion in the statute to consider a sponsor’s
circumstances, to determine whether they can be a delay/ deferral or restricting of
a payment scheme
 accordingly, the d/maker must take into consideration the personal
circumstances of the individual
NOTE: the debt couldn’t be forgiven, BUT it could be deferred,
restructured
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Law 301: Administrative Law


G. Morgan (Crane, Fall 2012) | Page 25
the PF owed is minimal though
 it’s just debt collection
 it’s only an issue of when and how, not whether
 there’s discretion but it was narrower in scope
supporting PF:
 no recourse for appeal
 once decision is made it’s enforceable as if it were a judgement
Content of the duty to procedural fairness (¶38):
 Pre-hearing: notice
 Hearing: opportunity to be heard
 Post-hearing: no need for reasons in this case given the overall situation, and that
the debt must be collect, that it’s not a judicial process and there’s no appeal
(someone to review the decision)
 also reasons might be rather routine: “You haven’t made out your case”, “We
think you can afford it” etc.
Side note: Crown argued that this should really be an issue of K, not admin law
 Court: yes it’s a K, but there’s so much admin law overlaid that it’s an admin decision
Procedural Fairness: Content and Choice of Procedures
Baker Factors
Topic
Baker v.
Canada
SCC 1999
Notes
FACTS: Written hearing only – could make her case in writing within her application
process. Baker argued that the purely paper process was not good enough, and that she
should have gotten better PF than she got, allowing her a face to face oral interview with
the decision maker (senior decision maker). Baker argued that she and her children could
make submissions as well. Baker argued she had a right to receive a decision’s reasons
and to be free from bias.
HELD: Yes, Baker is allotted procedural fairness but where does it fall on the spectrum?
The court introduces the 5 Baker factors, which are non-exhaustive and should not be
applied mechanically. Found that on the participatory rights the PF she received was
sufficient (although bias was found).
Re: 5 Baker factors
1) Humanitarian and compassionate decision making is very different than judicial
decision making – it’s discretionary and based on multiple factors. Crane: obvi
there are multiple factors but it’s more of a policy issue, there’s no real dispute
about the facts or between the parties, pointing towards lesser PF (not like judicial
DM)
2) A) The role of the decision maker in this case is the exception to the norm, to be
treated differently from the normal legal rules – there’s no stat right to the interest,
she’s asking for something that’s “akin to a mercy” (Crane) = low PF
B) But, no appeal = more PF
3) Impact – would have to leave Canada where she’s lived for almost 20 years and
leave her kids. How else could we characterize this?
4) Important but not determinative
5) Not much comment
Overall, duty of fairness is more than minimal. Crane: LHD does a poor job of actually
discussing why each factor is important, and “threshold” is relevant here as well (leg and
gen vs. specific)
Key Concepts

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 26
Procedural Fairness Analysis
Threshold
Test: “a decisions is administrative and affects ‘the rights, privileges or interests of an
question: any
individual’” (Cardinal)
PF req’d?
 n.b. conceded by both parties
What is the
 determine the “level” of PF appropriate in the circumstances (judicial  legislative)
content of PF
 specifics: given the level of PF req’d, was an oral hearing req’d?
owed in the
circumstances? Non-exhaustive list of considered factors:
(1) the nature of the decision being made and the process followed in making it (¶23)
(2) the nature of the statutory scheme and the “terms of t statute pursuant to which
the body operates” (¶24)
(3) the importance of the decision to the individual(s) affected (¶25)
(4) the legitimate expectations of the person challenging the decision (¶26)
(5) the choices of procedure made by the agency itself, particularly when the statute
leaves to the decision-maker the ability to choose its own procedures, or when the
agency has an expertise in determining what procedures are appropriate in the
circumstances (¶27)


 was the procedure, in the circumstances, sufficient? in this case, yes
Legislated Procedural Fairness: Administrative Tribunal Act
Topic
ATA
Notes
 When does it apply? It’s cumbersome to find out – it applies only when/ to the
extend that the enabling statue adopts it by reference
 Therefore it can be really piecemeal and you need to dig through the enabling
statute
 Administration Justice Office existed for a while, but then were cut and rolled into
the Dispute Resolution Office and now does not provide many of the past
resources BUT the AJO created a chart of the application of the ATA to different
statutes
o The AJO had also gone through to identify the different sections of
specific statutes that the ATA applies to
 What does the statute do?
o How appointments should be made to agencies in BC (addressing the
issue of tribunal independence)
 Need to be at arms length because government office on one
side
 Therefore there’s no judicial independence but there is a level of
independence
 Require remuneration
 Gone towards merit based appointment process – can apply to
sit on an agency and can be fairly well assured that the process
is not highly politicized (merit over nepotism). This process did
not used to be the case. So we can apply to sit on these
tribunals!
o Powers and duties
 Includes a lot of procedural things
 In s. 58-59, if one of these provisions has been made
applicable, the statute indicates the standards of review that has
been applied to the decision making (unusual!)
 Provisions about making rules for procedures
 AJO was making best practices for the creation of rules
 The kinds of orders that can be made to tribunals
 Notice and service (s. 19-21)
 Type of notice may depend on the interest at stake
Key Concepts

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 27
o
o
o
o
Appointing officers, chairs, DR mechanisms for when disputes arise
S. 32 indicates who can represent parties
The procedure of calling witnesses is allowed
Indicates when/ when not tribunals have the capacity to deal with
constitutional questions (given jurisdiction) s. 43-46
 This is also in the common law, but it was codified here because
legislators felt the CL was unclear
Pre-Hearing Rights: Notice and Disclosure of Evidence
Topic
Notice
Notes
 form/ content issues (notice that a decision will be made, when, where, and what is at
stake)
 need enough content to prepare a response
 who the notice being given to is relevant– someone familiar with the administrative
system vs. someone who is not
 if an alleged infraction is involved, need notice of everything in the allegation (can’t add
something to the original notice)
Key Concepts

Manner of service
 must be reasonably likely to come to the attention of the person
 if it’s emailed and in the junk mail, may be a good argument for no notice (should
have effective better notice)
 more serious needs more certain service
 mail can be problematic wrt timing – the one giving service should be the one
bearing the losses if the mail service takes too long
Discovery of
Evidence
Timing of service
 issue: did the person get the notice in a timely way
 generally, enough time to participate and to prepare but will vary depending on
the situation
 if timing isn’t adequate, the remedy is to adjourn the process to allow for time
 if more important rights at stake, may need more time to respond adequately
Pre-hearing discovery of the evidence that will be relied on in the decision making
Issues:
 when will this be available?
 what limitations/ concerns can rise?
Policy considerations:
examination for discovery, discovery of documents, of witnesses etc – it promotes
settlements and prevents trial by surprise BUT it’s time consuming and not always
necessary
R. v. Stinchcombe (SCC 1991)
n.b. Crown Counsel have rigorous duties to disclose incriminating and exculpatory
evidence
 evidence doesn’t belong to the state – it’s found by the state to administer public
justice
 full discovery is a hallmark of the civil procedure system
 finding out about the other side’s case before going to trial (allows parties to
discover each others’ side)
 Should Stinchcombe be applied to some administrative law processes like HRT
because you have a state prosecutor?
 HRT = the old BC Human Rights Commission system where the Commission
did the investigating, decided if there should be a hearing, and Commission could

Law 301: Administrative Law

G. Morgan (Crane, Fall 2012) | Page 28
represent complainant but a third party would conduct the case
May v. Ferndale (SCC) held that Stinchcombe doesn’t apply in admin context
Compelled participation
One issue that can arise is whether the decision maker (state adjudicator) has any power
to compel each side to participate in discovery – increasingly it’s found to be a good thing
and given power under statute
 however, there isn’t this kind of power from the CL therefore it must come from
the statute
Specific Content Issues: Oral or Written Hearings?
Topic
Oral Hearing
Notes
Written hearings are often good enough and found to be the norm
 there doesn’t have to be a single identifiable event, as long as the fluid process allows
the agency to hear from the people who are being affected (Baker)
 some of the “hearing” portion may occur over a longer period of time (Knight, Re Webb)
Key Concepts

There is a provision in a statute that empowers a tribunal to decide whether to proceed by
paper, oral hearing or electronically. The common law would allow for an oral hearing
given that credibility is at stake. Does the statutory provision oust the common law?
 no, require clear statutory language to oust the common law (Kane)
 typically, the common law must be extinguished by clear or necessary implication
(Singh)
 disciplinary hearings often should be public (d/maker to impose a publication ban to
manage reputational interests)
Khan v.
University of
Ottawa
ONCA 1997
Cross-reference to the Administrative Tribunals Act (applicable if the enabling statute
brings in the ATA):
ATA s. 36  types of oral hearings
ATA ss. 41-42  whether hearing is public
Facts: Khan failed evidence in the second year of law school at the University of Ottawa.
When she failed the exam she saw that there were only 3 booklets but should have been a
fourth (three booklets with a fourth of “inserts.” Faculty administration looks for fourth
booklet but it’s not found. Accordingly, left mark as a fail. Khan appeals. Appeal
committee agreed that if there had been 4 booklets and only 3 were graded, that would be
the kind of injustice that would allow for a rewrite of the exam. However, appeal denied.
Chair of the Exams Committee explained that he didn’t believe that the fourth booklet
existed.
Issue: whether Khan was entitled to an oral hearing before the exams committee since they
didn’t believe her evidence
Decision: Khan was entitled to an oral hearing
 high standard of procedures when credibility at stake
(1) issue of credibility

The reasoning for the Committee was that they didn’t believe her, so it’s based on
the evidence and her representations with respect to the evidence
(2) serious issue: failure of a course


Justice Laskin felt it was serious enough – it meant a failure of the entire term and
would require loss of an academic term, delaying or ending a person’s career
Justice Finlayson felt it was fairly seriously but that the student is “the author of

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 29
her own fate”
 it’s a grade appeal (the Committee was not accusing her of academic
dishonesty or any misconduct that would make it more serious)
 Kahn raised the issue of credibility by asserting the existence of the third
booklet
 contextual consideration: more of the same shouldn’t have changed the grade
Specific Content Issues: Right to Counsel
Topic
Right to
Counsel
Notes
In most cases, it is difficult (and controversial) for a tribunal to decline counsel or non-legal
representation in an oral hearing or even a paper inquiry.
 likely irrelevant or non-determinable in a paper inquiry
Key Concepts

Positive aspects of counsel in administrative processes
 translating legal or legislative language for the client (accessibility)
 present the client’s case in a persuasive manner
 advocate the client’s position (particularly in an oral hearing)
 delineate, clarify and present the issues in an organized fashion
 identify and present relevant facts (particularly obtaining relevant information from
the client and eliminating extraneous details)
 get evidence before the courts
Concerns with counsel in administrative processes:
 more adversarial
 slow down process (Blencoe)
 formalize proceedings
New
Brunswick
(Minister of
Health and
Community
Services) v.
J.G.
SCC 1999
Cross-reference to the Administrative Tribunals Act (applicable if the enabling statute
brings in the ATA):
ATA s. 32  rights to counsel
Although a Charter case, the criteria are applied in non-Charter cases  see details in
Charter analysis

Three considerations to determine the right to counsel:
(1) seriousness of impact (what’s at stake)
(2) complexity
(3) capacity of the person affected by the decision
In reality, most situations will not limit access to counsel.
However, possible off-setting factors are need for speedy decisions, informality and
economy.
Specific Content Issues: Disclosure to the “Case Against”
Topic
Disclosure
Notes
To facilitate natural justice processes (to know the case before you, to be able to respond
to the case before you and to be able to offer positive information to , there must be
disclosure of all information that the administrative decision maker
 highest level of disclosure on the quasi-judicial end of the spectrum
Re Abel: some limitations (possibility of redaction) for sensitive information, confidentiality
concerns
Kane: informal oral hearing (disciplinary process)
On the more general/legislative end of the specturm, there may be different models of
Key Concepts

Law 301: Administrative Law
Kane v. Board
of Governors of
UBC
SCC 1980
G. Morgan (Crane, Fall 2012) | Page 30
providing disclosure to large hearings (i.e. now mostly online but occasionally binders in
public offices, etc.)
Facts: Kane was disciplined (suspended) for improper use of computer facilities based on
the recommendation to the President from the Dean. Kane has a right of appeal to the
Board of Governors. The President sits on the Board. The Board holds a meeting to which
Kane was invited to attend with his counsel. The Board asks Kane and his counsel to
leave for the deliberations. While the President remains in attendance, he is asked to not
participate and not vote. However, the Board asked the President for clarification of some
facts prior to reaching a decision. The Board decided to uphold the suspension.

Two grounds for judicial review: (1) reasonable apprehension of bias (President as decision
maker and member of review body); and (2) improper disclosure of evidence provided by
President in the absence of Kane and his counsel
Decision: decision quashed due to lack of disclosure
 also known as the right to have a decision made “on the record” (based on the evidence
before
Re Abel
ON Div. Ct.
1979
n.b. Dickson J. made the following points:
 large measure of discretion granted to the university by the university act (i.e. the
informal nature of the oral hearing was appropriate); however, the process still must be fair
 when employment (or blemishes on employment) is at stake, there is an increased duty
of fairness
 no private interviews in the absence of the party whose content is under scrutiny (i.e. no
opportunity to respond)
Facts: Advisory Review Board (“ARB”) reviews NCRMD patients confined to psychiatric
institutions.
Stage
1st stage
Process
Decision Maker
Mental health institution sends a report to the ARB on
the patient
2nd stage ARB reviews and reports with recommendation to LG
3rd stage
LGiC makes decision on release.
LGiC
Procedural fairness question: does the ARB have to disclose the institution’s report?
(opportunity to make case is dependent on knowing fully knowing the case)
 problem: the ARB is not making a decision (and it’s already
Decision: Grange J.: ARB has an obligation to disclose b/c the patient is entitled to full
disclosure to know the full case against him/her and to have the opportunity to respond
 however, the law recognizes circumstances in which disclosure may not be appropriate
given the larger context of interests (i.e. national security, institutional function, witness
privacy, individual’s health/well-being), to prevent harm to the individual and in light of the
nature of the report (i.e. if it was not written with the intention of disclosure, it may be
prudent
Mental Health Act: discretionary power to grant oral hearing (which was granted) 
primary question was one of disclosure (access to a report from the institution to the ARB,
which would be relied upon to make recommendation to LG)
 how can the patient have an adequate opportunity to respond without the report?
 accordingly, the obligation was on the ARB to review the report and make a decision on
whether any of the content would be unsafe (but generally would expect report to be
excised as opposed to withholding)
n.b. pre-Charter and pre-FIPP decision

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 31
Specific Content Issues: Evidence and Cross-Examination
Topic
Evidence and
CrossExamination
Notes
Generally, administrative bodies are not bound by court rules of evidence unless explicitly
specified in the statute (but often statutes
Key Concepts

However, in practise (especially on the high end of quasi-judicial), the rules of evidence are
strongly influential.
 privileged information (esp. solicitor/client) will generally be inadmissible
Cross-examination
Irvine  minimal procedural fairness was required even though witnesses were testifying
under oath and there was a right to counsel (incl. right to ask questions of client) but no
right for counsel to cross-examine other witnesses; in this context, the SCC found that the
denied right to cross-examination was appropriate given the low impact of the private
hearing, the preliminary nature of the inquiry and the later processes involved full
procedural fairness
Typically, cross-examination rights arise in adversarial processes and when credibility is at
issue. However, more difficult to claim in other processes (i.e. policy assessment).
Generally,
Cross-references to the Administrative Tribunals Act (applicable if the enabling statute
brings in the ATA):
ATA s. 40  evidence
ATA s. 38  cross examination
Specific Content Issues: Delay in Proceedings
Topic
Delay
Notes
Different than the scope of participatory rights. Generally, the question is when will delay
been seen as so unfair that it results in a stay or an expedited hearing order?
Blencoe v.
British
Columbia
(Human Rights
Commission)
Facts:


SCC 2000





Human rights legislation that provide anti-discrimination provisions on enumerated
grounds (why? no cause of action in common law)
Older model in Blencoe: Human Rights Commission & Human Rights Tribunal 
complaint goes to HRC and is assigned to an investigator (notify the respondent,
collect information from complainant and respondent) who reports with
recommendation to the HRC, who determines whether to refer to Tribunal
 risk allocation: complaint may be dismissed without full hearing but a
respondent will never have a complaint upheld without a full hearing
March 1995: Blencoe (NDP government cabinet minister) dismissed from cabinet
following allegations of sexual harassment  media frenzy ensues
July, August 1995: two complaints filed at BCHRC
March 1997 (19 months): BCHRC investigator reports to BCHRC
July 1997 (24 months): BCHRC refers to Tribunal
March 1998 (32 months): hearing scheduled to start
The case at the SCC was argued in two ways: (1) Charter s. 7 (not considered in the
course); and (2) administrative law principles related to delay
 Majority: (1) Charter s. 7 did not apply but administrative law principles apply;
however, stay of proceedings not the remedy (therefore overturned BCCA
decision)
 Minority: stay of proceedings was not a remedy but recommended an order for an
expedited hearing
Key Concepts

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 32
Two circumstances in which a stay of proceedings may be granted = circumstances of
significance prejudice:
(1) actual prejudice to (i.e. lost opportunity to make case because the delay did not
allow evidence to be obtained or witnesses are no longer available)
(2) delay amounting to abuse of process = 3 factors:
 inordinate/unreasonable delay;
 delay causes serious stress (psychological harm) and/or stigma to reputation;
AND
 is such as to bring the human rights system into disrepute
To determine inordinate/unreasonable delay, the court must consider the overall context
including the following factors:
a) nature of the case and the various rights at stake
b) level of complexity of facts/issues
c) purpose and nature of the proceedings
d) whether the applicant contributed to the delay or waived it
Majority reasons:
 delay was not significant compared to other jurisdictions
 delay was not the entire time frame (i.e. not all delays were delays)
 delay was not the sole source of stress (i.e. initial media frenzy following dismissal
from Cabinet)
 delay would not offend the community’s sense of fairness
 the complainants were blameless in the process but they would lose their
rights/interests in having the complaint heard
Holding: the majority, while denying the stay of proceedings, granted costs to Blencoe
Specific Content Issues: Duty to Give Reasons
Topic
Reasons
Notes
Why do we require reasons? (Baker)
 fosters accountability
 reinforces public confidence
 reduces (appearance of) capricious decision making
 facilitates appeals
Indicators that there is a duty to give reasons (Baker):
 significant impact on the individual;
 statutory right to appeal; OR
 other circumstances
Concerns about the duty to give reasons broadly (i.e. “where judicial review is possible” =
all decisions):
 unduly burdening the process (esp. if requirement for judicial-type reasons)
 cost effectiveness
Baker  duty to give reasons (significant impact)
Mavi  no duty to give reasons because no appeal and no significant impact (“just debt”)
Two standards of substantive judicial reasons:
 correctness
 reasonableness (deference)
Key Concepts

Law 301: Administrative Law
Newfoundland
and Labrador
Nurses’ Union
v.
Newfoundland
and Labradour
(Treasury
Board)
SCC 2011
G. Morgan (Crane, Fall 2012) | Page 33
Problem: when there was a consideration of the adequacy/sufficiency of reasons, it was
considered on a standard of correctness; however, when completing a merits review, the
courts would often adopt the deferential posture of reasonable
Facts: complaints in a labor arbitration context where the arbiter was interpreting a
collective agreement to determine whether casual employees who became full-time
employees could get credit for time spent in casual context for vacation entitlement, etc.

Concern about adequacy of reasons:
 whether or not there is a duty of procedural fairness is a question of procedural
fairness
 provided that there are some reasons, that meets this requirement (no
consideration of adequacy or sufficiency under the consideration of procedural
fairness)
 adequacy of reasons is considered in substantive judicial review (i.e. merits
based)
Ethical Advocacy
Topic
Ethics
Notes
Represented vs. unrepresented parties
 how much can and should counsel assist the unrepresented party while maintaining the
interests of your client
 text: arguably minimal actions that can be taken but likely most significant role is using
plain language
Key Concepts

Requirements in administrative advocacy = same as court (officer in favour of good
administration of justice, which imposes duties of civility, etc.)
Constitutional and Quasi-Constitutional Procedural Protections
Theoretical Underpinnings
Topic
Charter
provisions
Canadian Bill of
Rights
provisions
Notes
s.7: “right to life, liberty and security and the right not to be deprived thereof except in
accordance with the principles of fundamental justice”
 “everyone” = everyone physically present in Canada (Singh)
 high threshold (life, liberty or security of the person must be at stake)
 once in threshold, high constitutional guarantee (although limited by Charter s. 1:
“subject only to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society”)
 difficult to make out a denial of PFJs as already varied by context
n.b. only applicable to federal legislation (no application to provincial statutes or decision
makers)
While not as comprehensive as the Charter, there may be times where there are rights
covered under the Canadian Bill of Rights but do not exist in the Charter  especially
where rights thresholds are
s. 1(a): “the right of the individual to life liberty, security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law”
s. 2(d): “authorize a court, tribunal, board or other authority to compel a person to give
evidence if he is denied counsel, protection against self crimination or other constitutional
safeguards”
s. 2(e): “deprive a person of the right to a fair hearing in accordance with the principles of
Key Concepts


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 34
fundamental justice for the determination of his rights and obligation
 broader threshold to fair hearing rights (Singh)
Other quasiconstitutional
provisions
Why turn to a
rights
document?
Framework for
Analysis
n.b. distinction between individual and person (likely inclusive of corporation)
Examples:
 Alberta human rights legislation (rare)
 Québec’s Charter of Human Rights and Freedoms (frequent)
 to override legislation that expressly or by necessary implication denies a procedural
hearing right (only route to override is through a constitutional document)
 to obtain better rights than available through common law or (problem: common law
procedural fairness is the foundation of most judicial review in this area)
Three-step process:
(1) threshold  does the administrative decision deprive (or threaten to deprive) an
individual of his/her interests in life, liberty and/or security of the person
(2) violation  is the decision in accordance with the principles of fundamental
justice?
(3) justification  is the decision justified under Charter s. 1?



Life = life or death; case law suggests capital punishment is likely unconstitutional
Liberty = freedom from physical restraint (imprisonment, incarceration, detention) but also
some case law around personal autonomy  freedom to make decisions that are of
fundamental importance to the individual (“essential life choices”) such as decisions about
medical treatment for children (Re B as cited in Blencoe) and decisions about where to
reside (Godbout as cited in Blencoe)
Security of the person = typically bodily integrity
Psychological integrity  see New Brunswick (Minister of Health and Community Services)
and Blencoe
Sufficient causal connection  Khadr: “sufficient causal connection between [the
Canadian] government’s participation and the deprivation [of liberty and security of the
person] ultimately effected”
Principles of fundamental justice  SEE NOTES
Authorson v.
Canada (SCC
2003)
Justification under s. 1  SEE NOTES
Facts: Authorson was a disabled war veteran who represented a class of war veterans who
were deemed not competent to handle their affairs. Their pensions were administered by
the Department of Veteran Affairs as part of a fiduciary duty. Prior to 1990, the department
did not invest pension funds or pay interest on the funds to the veterans. After 1990, the
department began paying interest. Parliament imposed a statutory bar for lost interest prior
to 1990.
Arguments:
(1) Canadian Bill of Rights due process rights required hearing rights prior to the
creation of the legislation (unlikely)
(2) Canadian Bill of Rights due process rights attached when the statute was applied
to Authorson’s specific case
(3) Canadian Bill of Rights due process rights can be applied substantively and
protects Authorson from legislation that expropriates his property without fair
compensation
(4) Termination of the rights and obligations owed to a person (in this case,

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 35
Authorson), which meant that PFJ attached before legislation
Reasons:
 no requirement for consultation during legislation creation (constitutional
guarantees with respect to legislation are parliamentary sovereignty not due
process rights)
 nature of Canadian Bill of Rights s. 1 limits rights (“have existed and shall
continue” = protects rights of a kind recognized in law in 1960, when the Bill was
passed)
 problem: common law had always granted the right to expropriate without
compensation when clearly stated)
 reluctance to use s. 1(a) substantively with respect to property rights
 due process rights, however, do apply when there is an individual decision about
an individual property right (e.g. veteran who received a disability pension based
on 50% disability and the DVA decided to change the entitlement for this particular
veteran)
Singh v.
Canada
(Minister of
Employment
and
Immigration)
(SCC 1985)
Lochner era  US decision
Facts: aliens (non-Canadian citizens or residents) do not have a right to enter Canada but
Canada is a signatory to international conventions that permit refugee claims where there
is a well-founded fear of persecution in the country from which they are fleeing. Refugee
status entitles the alien to the following rights: (1) right to have further determination made
about whether permit should be issue to allow claimant to remain (granted unless person is
criminal/subversive); (2) right not to be returned to country where persecution is feared; (3)
right to appeal any deportation order
Three-stage process to determine refugee status
(1) Immigration Officer: claim made on entry; examination of claimant under oath;
counsel rights and a reasonable opportunity to engage counsel; transcript of
examination goes to claimant and RSAC
(2) Refugee Status Advisory Committee (RSAC): reviews claim and transcript (rely on
general policies/knowledge of world events w/o advising claimant about these
matters and w/o hearing claimant’s perspective; RSAC decides whether to grant
refugee status)
(3) Immigration Appeal Board (IAB): receives application for redetermination hearing
with transcript and declaration on oath setting out the basis of the application and
additional facts/evidence/information/submissions; however, no right to
redetermination hearing therefore determining whether a full oral hearing will be
held or whether application will be determined outright)
Issues:
(1) the refugee claim can be fully denied without an oral hearing
(2) sufficient opportunity to find out the case against the claimant?
Decision: split decision (application of Charter or Canadian Bill of Rights) but both
decisions found that hearing rights
Wilson J (Charter decision):
 statute can be interrupted as an exhaustive scheme of procedural fairness rights
(as it was in this case) therefore Singh had to be decided under a constitutional or
quasi-constitutional document to override the statute
 principle of judicial economy: don’t use the Charter unless you have to
 why Charter instead of common law principles of procedural fairness? common
law cannot give procedural protections beyond the statutory conferred rights

Law 301: Administrative Law



New Brunswick
(Minister of
Health and
Community
Services) v.
J.G. (SCC
1999)
G. Morgan (Crane, Fall 2012) | Page 36
(statute as exhaustive of procedural rights therefore no space for common law)
threshold: is the threshold for s. 7 met?
- everyone = every individual who is in Canada (including aliens / non-citizens);
later jurisprudence does not include corporations
- is the determination of refugee status about life, liberty and security of the
person? enough that Canada as a state would not penalize directly but
threatened it  psychological integrity when threat of persecution if returned
to community in which persecution was feared
if the threshold is met, was the deprivation in accordance with the PFJ?
- no: (1) inability to know the case against the claimant (no knowledge of the
views of the RSAC and/or opportunity to refute); (2) credibility necessarily at
stake therefore need for oral hearing (i.e. whether the individual has a wellfounded fear of persecution)
- IO oral interview insufficient as not a final decision maker
if s. 7 was violated, is the government action saved by s. 1?
- pre-Oakes: AG argued that other free and democratic societies use similar
systems; problem with administrative burden (IAB already overloaded);
system approved by United Nations
- Wilson J found the argument under presented and rejected utilitarian
considerations about administrative convenience and cost when s. 7 rights
are at stake
Beetz J (Canadian Bill of Rights decision):
 AG conceded that s. 2(e) rights were engaged but in accordance with PFJs per
Charter argument
Facts: NB was granted custody order for J.G.’s three children. NB was applying for an
extension of this order. J.G. is a social assistance recipient who is denied legal aid
because custody applications are not covered by legal aid guidelines. J.G. sought an order
requiring legal aid be afforded her. She claimed that denial of legal aid was a violation of
Charter s. 7. She was granted duty counsel pro bono to advance the custody application
(in the best interests of the children to have prompt custody hearing as opposed to waiting
for the constitutional challenge). Custody order was extended. The motion to obtain state
funded counsel was heard a year later  no obligation to provide state funded council.
NBCA affirmed trial decision.
Issue: is there a s. 7 right to state funded counsel and how does it arise?
Decision: yes
Reasons (Lamer J.):
 constitutional obligation to provide state funded counsel in the circumstances of
this case
 mootness issue (J.G. had regained custody of her children by the time of the SCC
decision)  still should be heard as important issue but often would be moot by
the time it made it to the SCC; frequent and widespread issue; appropriate
adversarial context (facts on which to base the answer)
 in judicial review, mootness is a reason to deny a remedy
 Charter right engaged = security of person
- security of the person includes psychological integrity  state action must
have a serious and profound impact on the psychological integrity of a person
of ordinary sensibilities; considering really important interferences
- more than anxious; less than crazy (Aislinn)
- need causal connection between decision and the interference with
psychological integrity (Blencoe)

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 37
-
Suresh v
Canada
(Minister of
Citizenship and
Immigration)
(SCC 2002)
fundamental considerations: need to be sure that the state is making good
decisions with respect to the parent and children’s best interests
- three factors to consider : (1) issue at stake/impact of decision; (2) complexity
of the proceedings (length of proceedings = 3 days + 15 witnesses including
expert testimony); (3) capacities of the parent
 mootness ok b/c
a) nature that will often be moot
b) significant issue that applies broadly
c) sufficient factual context and adversarial context despite mootness
Facts: Suresh was subject to a removal order on the grounds that he was danger to the
security of Canada under the Immigration Act. See fact summary in Crane’s handout.

The Court equivocates, but seems to say that it is a s. 7 violation in a substantive sense if a
person were deported to a place where there is a substantial risk of torture. (However, the
Court suggests that there may be circumstances that would not violate s. 7).
What level of procedural protections are required?
 Based on an application of the Baker 5 factors  ¶121: procedural protections
are not to the extent of an oral hearing but they were more than what was granted
(no quantification of where the weighing out ended on the scale but likely around
75%)
 content of procedural protections:
 disclosure (subject to limitations for national security considerations)
 reasons that speak to a) the finding that the individual is a danger to the
security of Canada, and b) the finding that there are no substantial grounds to
believe that he will be subject to torture, execution or other cruel and unusual
treatment if returned to Sri Lanka
Charkaoui v.
Canada
(Minister of
Citizenship and
Immigration)
(SCC 2007)
Decision: redetermination in a proper hearing process
Facts: Charkaoui (and others) were issued certificates at an early stage. Issue  what is
the scope of the federal court’s actions in reviewing these certificates? See fact summary
in Crane’s handout.
Balancing state interests with an individual’s
 what does it mean to read the s. 7 rights in context?
 Court: true balancing of interests is at s. 1 but context is considered at the rights
violation stage
Because of the serious deprivation of liberty at issue (zero in at impact: loss of liberty = due
process of law), the process called for is a fair “judicial” process
 n.b. not just a judicial process because it is in front of a Federal Court judge but
because of the nature of rights and the impact of the decision
(1) right to a hearing
(2) right to be heard by a fair and impartial decision maker
(3) decision based on facts and law
(4) right to know case against one and right to answer that case (“informed
participation”)
c.f. ¶29  (1) – (4) are core ideas that can vary with context
Disclosure  instrumental process of “disclosure”
¶53: disclosure permits the person affected by the decision to
a) contradict any errors
b) identify omissions / fill in any gaps

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 38
c) challenge the credibility of informants
d) refute false allegations
Application of (1) – (4) to the facts in this case:
 there was a hearing and there was a fair and impartial decision maker
 problem with (3) and (4)
- judges were not permitted to be inquisitorial judges (limited by what
evidence was put before it)
- the alternative to the inquisitorial process is an adversarial process,
which ensures that all essential information gets placed before the
decision maker
The process was not saved by s. 1.
 breaches of s. 7 are hard to justify  need special circumstances
 justification fails because there are less intrusive mechanisms that would provide
sufficient procedural protections (i.e. special advisor/special counsel mechanism
under the former regime)
New process (Bill C-3):
 special advocate = lawyer who has security vetting done in advance
 special advocate appointed when the decision will take place in camera (i.e. when
neither the accused or the accused’s named counsel are permitted to participate)
 special advocate challenges evidence, cross-examines, etc. on the part of the
accused
Remedial Topics in Administrative Law
Introduction
Topic
When can a
remedy be
applied to a
breach in
procedural
fairness?
Notes
During the administrative process:
 typically a body can pause the process
After the decision:
 unless statutorily provided, a reconsideration is not provided
Appealing the decision (to an appeal body or judicial review):
 is there an adequate alternate remedy? if yes, judicial review may be refused (or
at least the adequate alternate remedy must be exhausted before judicial review)
Judicial remedies:
 discretionary: mandamus, certiorari, injunctions, etc.
 reasons to deny a remedy: mootness (see New Brunswick (Minister of Health and
Community Services); delay in request for judicial review (FCA time limit in s.
18.1(2) = 30 days; ATA, if applicable, s.57 = 60 days; no time limit in JRPA s. 11);
absence of clean hands (Homex Realty); waived by party (a denial to object in
proceedings may be construed as a waiver but rare to read an implicit waiver 
typically most applicable with allegations of bias); prematurity (i.e. a final decision
has not been made or an adequate alternate remedy has not been exhausted)
 waiver of bias: knowledge of bias, knowledge of right and non-action
see also Taiga Works Wilderness Equipment v. British Columbia (BCCA 2010)  extent to
which an appellate body can “cure” breaches in procedural fairness/natural justice
Key Concepts

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 39
Common Law Remedies
Prerogative
certiorari  quashes or sets aside a decision
writs
prohibition  prohibits d/maker from proceeding
mandamus  requires performance of a public mandatory duty (i.e. Insite)
habeus corpus  determines the lawfulness of detentions (e.g. relevant in immigration,
prison, extradition, mental health)

Prerogative writs were (1) discretionary, (2) issued only by superior courts, and (3) based
on jurisdiction.
Ex: certiorari was to ensure that “inferior” bodies did not exceed or abuse statutory powers
Generally equitable remedies (private law context) that could be invoked in administrative
law were:
declarations  to declare rights
injunctions  to restrain conduct
Problems with
 obtaining remedies (particular prerogative writs) became laden with technicalities
Common Law
and restrictions
Remedies
 applications for judicial review had to carefully “fit” their applications within the
strict confines of the situations in which the writ being sought could be granted
(i.e. tailor case to the remedy sought)
 risk of loss existed if the application could not fit his/her application within the
grounds on which the specific remedy sought could be granted
Remedies under “Modern” Judicial Review Procedure Statutes
Which statute
Federal decision making = almost always FCA
applies?
Judicial Review  emerged out of provincial procedural reform in most provinces in the 1970s/1980s
Procedure Act
 JRPA governs procedures for making JR applications
(RSBC 1996)
What changed? applicants no longer applied for the remedy (i.e. prerogative writ) and
instead make an “application for judicial review” to the BCSC [simplified process]
Other remedies




* On a judicial review application, the court may “grant any relief that the applicant would be
entitled to” in proceedings for relief in the nature of certiorari, prohibition or mandamus or
for a declaration or injunction (i.e. fewer technicalities in seeking relief)
JRPA s. 2 provides:
2(1) An application for judicial review must be brought by way of a petition proceeding
2(2) On an application for judicial review …
Federal Court
Act (1970)
 now Federal
Courts Act
(“FCA”)
JRPA s. 13 provides that “no writ of mandamus, prohibition, or certiorari may be issued”
JRPA does not attempt to codify or displace the common law principles and rules on which
relief may be grounded or denied
JRPA simplifies procedures and removes the risk that formerly attached to “seeking the
wrong writ”
* n.b. relief remains discretionary
Under s. 101 of the Constitution Act, 1867, the Act created the Federal Court Trial Division
and Federal Court of Appeal
 constitutionality of creation upheld in CLRB v. Paul L’Anglais (SCC 1983)
 statutory courts (i.e. declared as superior courts but do not have inherent jurisdiction)
Current iterations = Federal Court of Canada (FCC) and Federal Court of Appeal (FCA) +
Tax Court and Court Martial Court
FCA applies to JR applications in relation to all federally established boards, commissions

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 40
or tribunals
 federal decision makers runs the gamut from the PM to major boards and agencies to
the local border guard (and everyone in between) (Telezone SCC 2010)
* all JR applications for federal admin d/makers are exclusively heard in the federal courts
(except for certain habeus corpus applications, see Power Point note)
Process of judicial review
 applications for judicial review in administrative review are made initially to either
the Federal Court or the Federal Court of Appeal (based on a division of
jurisdiction between the courts as provide for in ss. 18 and 28 of the FCA
 the grounds on which an application for judicial review can be made in the Federal
Courts is codified in the FCA – the statutory grounds for judicial review remedies
at common law
Grounds for relief = FCA s. 18.1(4)
 but always considered in light of the common law remedies
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal
board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its
jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on
the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Adequate Alternate Remedy
Topic
Adequate
Alternate
Remedy
Policy
Considerations
Notes
Typically, an appeal to a court would be seen as an adequate alternate remedy (as long
as the scope of the appeal is sufficient to cover the affected breach of PF)
 further, provided the court is able to hear an appeal of an error of law, this would cover
breaches of procedural fairness (i.e. errors of law)
 FCA s. 18(5): appeal from federal decision makers to federal court, tax court, etc.
requires that this appeal must occur before judicial review
An appeal to an administrative decision maker requires a consideration of a number of
factors
 appeal body’s procedures
 jurisdiction
 appeal de novo?
 sufficiently impartial (i.e. will it operate without bias and independent of the initial
decision maker)
Why preference to exhaust all AARs?
 avoid prematurity by not bifurcating the decision (i.e. judicial review at the end of
all decision making processes)
 conserve judicial resources (i.e. one judicial review for one judicial decision; avoid
judicial review if the individual obtains the substantive outcome sought despite the
denial of procedural fairness
 cost and efficiency compared to judicial review
 the issue might resolve in the AAR because the substantive outcome is achieved
Key Concepts


Law 301: Administrative Law
Harlekin v.
University of
Regina
SCC 1979
G. Morgan (Crane, Fall 2012) | Page 41
despite the breach in PF
Facts: University of Regina student was unable to proceed as a student in the Faculty of
Social Work (unclear whether wholly due to grades or whether there were other
considerations with respect to interactions in academic community)
Process: faculty decision  Committee of University Council appeal (breach of PF: only
heard from university [not student])  Senate Committee appeal (not pursued)
Issue: was the Senate Committee appeal an AAR?
Three challenges from the student:
 Failure to respect procedural fairness
 the remedies are DISCRETIONARY
 Student argues that because of the breach of PF at the University Council, there
was no decision and therefore nothing to appeal to the senate committee
 void vs. voidable decisions
 void = no jurisdiction (i.e. not a student at the university) and voidable = starting
out with jurisdiction but making an error in the exercise of the jurisdiction
 as the decision was voidable, there was something to be appealed
 Even if there was an appealable decision, the Senate Committee was not an AAR
 see also Taiga Works
 must consider factors
Considered Factors (Beetz J. on CLDB Harlekin 4) in Determining Whether AAR:
1. procedure on appeal
2. composition of the senate committee: sufficiently independent?
3. powers: does the appeal body have the jurisdiction to provide the remedy?
4. manner of exercise: appeal on the record or appeal de novo; procedural fairness
5. burden of the previous finding: will the appeal provide procedural fairness; will the
appeal be unduly burdened by the previous decision?
6. expeditiousness and costs  will it be quicker and cheaper?
minimal cost (volunteer body)
Application:
 can hear the appeal de novo (silent but based on a presumption that nonacademics would want to re-hear)
 academics in CUC better qualified than the non-academics on the Senate
Committee  doesn’t matter because not an academic judgement
Dissent:
 dynamic of ascending rigidity
 not clear that its de novo
 lack of expertise
n.b. context important  university matters should be handled within the university unless
the issues must be resolved in court
Limitation: Poor Conduct by Appellant
Topic
Homex Realty
and
Development
Co. v. Wyoming
(Village)
Notes
Remedy: a remedy is always discretionary in judicial review, and a primary disqualification
has been poor conduct on the part of the appellant (i.e. the “clean hands” argument from
equitable remedies)
 Homex was a “bad apple”: inconsistent and contradictory; lack of frankness;
attempt to shirk responsibility; checkerboarded the land to avoid repercussions of
Key Concepts

Law 301: Administrative Law
SCC 1980

G. Morgan (Crane, Fall 2012) | Page 42
the municipality’s bylaw
Problem: counsel was not asked to make submissions on remedies  potential
PF problem?! (c.f. Dickson J.’s dissenting judgement)
Limitation: Mootness
Topic
New Brunswick
(Minister of
Health and
Community
Services) v.
J.G. (SCC
1999)
Notes
Mootness issue: J.G. had regained custody of her children by the time of the SCC decision
 still should be heard as important issue but often would be moot by the time it made it to
the SCC; frequent and widespread issue; appropriate adversarial context (facts on which to
base the answer)
Topic
Inevitability /
Futility
Notes
Generally, courts will not consider the argument that the same outcome would result if
procedural fairness had been achieved
Key Concepts

While mootness is a reason to deny a remedy in judicial review, in this case mootness was
not a bar:
(1) nature that will often be moot
(2) significant issue that applies broadly
(3) sufficient factual context and adversarial context despite mootness
Limitation: Futility and Inevitability
Key Concepts

Cardinal  while courts do have discretion to deny relief, courts must not speculate about
the outcome
However, may be considered if, as a matter of law, there was only one legal outcome (i.e.
legal futility) (Mobile Oil)
The Rule Against Bias
General Principles and the Basic Test for the Rule Against Bias
Topic
Introduction
Context
Specificity
Imperial Oil v
Quebec
(Minister of the
Environment)
(SCC 2003)
Notes
Natural justice has two limbs:
(1) audi alteram partem (hear the other side)  procedural requirements
(2) nemo judex in causa propria sua debet esse (no one ought to be a judge in his or
her own cause)  rule against bias
Historically, the rule against bias was a part of natural justice and applied to judicial and
quasi-judicial decision making. Now it applies generally to administrative decisions (i.e.
Energy Probe, Baker, Imperial Oil)
 duty of impartiality = component of procedural fairness (two limits to procedural fairness
includes both procedural requirements and rule against bias)
As with other PF obligations, the rule against bias varies in its application, depending on
the context of the decision making at issue in any given case (the nature and impact of the
decision, the nature of the decision maker, the statutory context, etc.)
 i.e. the contextual approach is always required and what constitutes a disqualifying bias
will differ from one context to another
Facts: Polluter pay act enables the Minister to make an order that the party whom the
Minister believes to have caused the pollution make a site characterisation order: 1)
conduct study that identifies the contamination problem; 2) report to the Minister with
recommendations for further action to de-contaminate; 3) carry out recommendations at
own expense
Process in making order: 1) notice of intent to serve with reasons why; 2) opportunity to
Key Concepts



Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 43
respond to notice; 3) Minister must consider the reasons submitted before deciding to
serve the order
In this case, Imperial Oil had a fuel processing facility on land. Imperial Oil sold the land
“as is.” After intervening purchases, developers approached the Ministry with concerns
about present hydrocarbons. The Ministry recommended and approved the
decontamination work. Several years later, the property owners noticed further
hydrocarbons. Action filed against the Ministry (negligent in supervision and approval of
decontamination). The Ministry subsequently issued a characterization order against
Imperial Oil.
Imperial Oil’s arguments:
(1) Ministry failed to undertake the site rehabilitation properly
(2) conflict of interest in a material, pecuniary sense (always tainted by the suggestion
that the Minister wants to insulate the government against claims that the
Trial history:
 Trial  found bias
 QCCA  found bias but defence (necessity and possibly statutory authorization)
 SCC  contextual approach to bias found no bias
Contextual approach:
 Minister is not adjudicating a judicial or quasi-judicial decision  discretionary
decision; managing a system of environmental protection; protecting public
interest in the environment; giving effect to legislation
 Responsibility to adjudicate was to listen carefully
 In this case, not a personal interest of the Minister (Minister obliged to act in the
public interest for the common good)
Purposes of the
Rule against
Bias
Standard Test:
Reasonable
Apprehension
of Bias
R. v. S. (R.D.)
(SCC 1997)
 close to suggesting that bias does not apply at this end of the spectrum
(1) foster public confidence in the process and the substance of administrative justice
 foster legitimacy and acceptability of decisions
(2) promote substantive fairness through better decisions
(3) support participatory procedural rights
(4) links to the rule of law and the pursuit of equality
De Grandpre (dissenting) in Committee for Justice and Liberty v. National Energy Board
(cited in Baker):
“… the apprehension of bias must be a reasonable one held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the required
information. … [the] test is “what would an informed person, viewing the matter realistically
and practically – and having though the matter through – conclude. Would he think that it
more likely that not that [the d/maker] whether consciously or unconsciously, would not
decide fairly”
 do not show that the bias actually affected the decision but rather whether it might
reasonably be perceived to have done so
Facts: acquittal of a young person of colour; trial judge (also person of colour) made
comments about a tendency of police officers to treat young persons of colour without
generosity
Cory J. identified two objectives to RAOB test:
(1) person considering the allege bias must be reasons
(2) the apprehension of bias must also be reasonable in the circumstance of the case



Law 301: Administrative Law
Legal Effect of
Bias
Process for
Dealing with
Bias Issue
G. Morgan (Crane, Fall 2012) | Page 44
Further, the grounds for a RAOB must be substantial and allegations should not be made
lightly.
If bias is found, it disqualifies the decision maker from making a valid decision "
accordingly, the decision maker does not have jurisdiction
" remedy: decision quashed and send for re-hearing by non-biased decision maker
If a complaint arises before the decision is made, there can sometimes be an order of
prohibition (although a court may decline on the grounds that the application is premature.)
When a bias issue arises before or during a hearing process, the party should raise the
matter with the decision maker and ask the decision maker to disqualify himself or herself.


After the decision maker hears the parties on the matter and makes a ruling, he or she
either “recuses” or “refuses to recuse.”
If the decision maker does not disqualify him or herself, the party alleging bias:
Defences
Statutory
authority
(a) might try to seek judicial review immediately (although may be met with the
problem of prematurity)
OR
(b) might decide to continue in the proceeding, while maintaining the bias objection,
and seek judicial review after the final decision if grounds to complain remain
(1) statutory authority
(2) necessity
(3) waiver
Where a status expressly or by necessary implication authorizes a d/maker to decide a
matter, despite what might otherwise be seen as a disqualifying bias, the statute governs
and statutory authorization is a complete defence


Examples: Brosseau; CUPE v Ontario (Minister of Labour)
to try to overcome a statutory authorization defence, one must resort (if possible) to a
“rights document” such as Charter s. 7 or, if the d/maker is a federal one, the Bill of Rights
to attempt to strike down the provision that authorizes the allegedly biased d/maker to
decide
Necessity
Waiver
Identify Bias
Issues
Examples: Quebec Inc.; McBain
if a d/maker who labours under disqualifying bias would be the ONLY POSSIBLE d/maker
who is or who could be authorized to make the decision in question, this will be accepted,
and the decision-maker can decide, despite the RAOB; otherwise there would be a failure
of justice
parties who know about bias can waive it expressly or impliedly - implied waiver can occur
only if the person alleged to have waived knew about the bias and knew also that they
could object to it, but nevertheless elected to proceed without making an objection and
thereby lose their right to complain about the bias
Four categories (L Jacobs CB 258):
1) pecuniary (material) interest " “conflict of interest”
2) personal relationship with parties or counsel, or personal animosity arising at or
evidence at the hearing
3) prior knowledge of information about the matter in dispute
4) attitudinal bias " attitudinal predisposition toward a particular outcome
Bias can also be divided general between the personal (i.e. related to a particular decision
maker in an individual case) and the institutional or structural (i.e. arising from the way that
the decision making process



Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 45
Examples of institutional bias: Brosseau, Quebec Inc.
Individual Bias Issues: Pecuniary or Other Material Interest in the Outcome
Topic
Alternate Tests
for Bias
Imperial Oil v
Quebec
(Minister of the
Environment)
(SCC 2003)
Notes
(1) direct pecuniary interest
 stricter test: any direct personal pecuniary interest is enough to disqualify
(Energy Probe)  bias is presumed and disqualification is automatic
 threshold: the pecuniary interest must be adjudged to be sufficiently certain
(not too remote and not contingent)
(2) indirect pecuniary interest
 if financial interest indirect, RAOB test applies (Pearlman)
Facts: Polluter pay act enables the Minister to make an order that the party whom the
Minister believes to have caused the pollution make a site characterisation order: 1)
conduct study that identifies the contamination problem; 2) report to the Minister with
recommendations for further action to de-contaminate; 3) carry out recommendations at
own expense
Key Concepts


Process in making order: 1) notice of intent to serve with reasons why; 2) opportunity to
respond to notice; 3) Minister must consider the reasons submitted before deciding to
serve the order
In this case, Imperial Oil had a fuel processing facility on land. Imperial Oil sold the land
“as is.” After intervening purchases, developers approached the Ministry with concerns
about present hydrocarbons. The Ministry recommended and approved the
decontamination work. Several years later, the property owners noticed further
hydrocarbons. Action filed against the Ministry (negligent in supervision and approval of
decontamination). The Ministry subsequently issued a characterization order against
Imperial Oil.
Imperial Oil’s arguments:
(3) Ministry failed to undertake the site rehabilitation properly
(4) conflict of interest in a material, pecuniary sense (always tainted by the suggestion
that the Minister wants to insulate the government against claims that the
Trial history:
 Trial  found bias
 QCCA  found bias but defence (necessity and possibly statutory authorization)
 SCC  contextual approach to bias found no bias
Contextual approach:
 Minister is not adjudicating a judicial or quasi-judicial decision  discretionary
decision; managing a system of environmental protection; protecting public
interest in the environment; giving effect to legislation
 Responsibility to adjudicate was to listen carefully
 In this case, not a personal interest of the Minister (Minister obliged to act in the
public interest for the common good)
Pearlman v.
Manitoba Law
Society
 close to suggesting that bias does not apply at this end of the spectrum
Facts: lawyer charged with conduct unbecoming; judged by peers
Arguments from Pearlman on bias:
 member could be awarded costs; accordingly, committee had an interest in finding
him guilty as Law Society fees will increase if not awarded costs (cost savings)

Law 301: Administrative Law

G. Morgan (Crane, Fall 2012) | Page 46
vested interest in turfing from Law Society as reduces competition for clients
rejected on three points:
(1) Law Society does not make money (cost recovery)
(2) interest of individual members of disciplinary committee are too remote and too
communal (shared by all members of the Law Society)  inherent to peer
discipline and society values peers judging professionals
(3) benefit for individual members would be miniscule
However, there are limits to peer discipline (Moskalyk-Walters): pharmacist from small town
was on a discipline committee for another pharmacist from the same small town  in this
case, the peer argument did not win the day (another person could have, and should have,
been appointed)
Individual Bias Issues: Personal Relationships with Parties in the Dispute
Topic
Personal
Relationships
Notes
where the decision-maker has a past or present relationship either with those who are
either directly involved in the decision as parties or counsel, or with those who have an
interest in the outcome in the sense that they may either gain a benefit or suffer a detriment
as a result of the decision may give rise to a RAOB
Key Concepts

Types of personal relationships: family, business, professional, associational or friendship
relationships (or a history of animosity)
Bennett and
Doman v.
British
Columbia
(Superintendent
of Brokers)
(BCCA 1993)
Marques v
Dylex
(ON Div Ct
1977)
(CB 263)
Personal relationships all provide grounds for disqualification if it can reasonably be
perceived that, because of the relationship, the decision-maker may be (consciously or
unconsciously) inclined to favour or disfavour a particular outcome
Facts: Doman = major forest products company; hearing before British Columbia Securities
Commission; one of the panellists was Devine, the CEO of a rival forest products company;
Doman alleges bias; other two members of the panel considered the evidence but did not
find RAOB based on the weak evidence that Devine would benefit from a particular finding

Decision: BCCA disqualified Devine but acknowledge that it was a close case
Reasons:
(1) less an assessment of factual probability of negative outcome but rather
perception of bias (although facts always underpin the perception of bias)
(2) “The reasonable person is, of course, a mythical creature of the law. In a matter
as close to the line as this, some reasonable persons might say "What's the
problem?" and others might well say "It does not seem quite right for him to sit".
Those who gave the first answer might well say that those who gave the second
were suffering from needless scrupulosity” (¶38)
Facts: employer challenged a decision to certify a union under the ON Labour Relation
Board because one of the panellists was a member of the law firm that was representing
the union
* Common problem when lawyers are appointed to adjudicative panels in labour relations
as firms typically orient along employer/union lines
Decision: no RAOB
Reasons:
(1) panellist had nothing to do with the application while at the law firm, nor was the
law firm involved when the panellist worked at the firm (worked with previous
iteration of the union)
(2) one year had passed since the panellist had contact with the union in the law firm

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 47
context
(3) nearly one year had passed since the panellist worked at the law firm
(4) labour relations context: small-ish community of lawyers divided by employer or
union representations; tripartite boards (neutral chair + one rep for employer bar +
one rep for union bar)
Individual Bias Issues: Prior Knowledge or Involvement of Decision-Makers at Earlier Stages
Topic
Prior
Involvement
Notes
covers various situations in which there is a some kind of pre-existing relationship between
the decision-maker and the specific subject-matter at issue in the decision
Key Concepts

i.e. situations in which decision maker has had some kind of prior involvement with the
specific case or issue now before him/her for decision
situations of prior involvement include:
(a) re-hearings: d/maker has already heard the matter and now has to rehear it after a
successful application for JR
 generally acceptable
Example: BCNU
(b) prior involvement of the d/maker with the specific subject matter now before the tribunal,
where the prior involvement occurred before the d/maker was a member of the tribunal –
i.e. when he/she was in “private life”, he/she “worked on the file”
 easy to have the problem
 primary touchstones: (1) extent of involvement; and (2) recent nature of involvement?
Examples: Ctee for Justice and Liberty; Wewaykim Indian Band
(c) overlapping functions: prior involvement of the d/maker with the specific subject matter
within the tribunal, before the matter gets to the an adjudicative hearing stage [e.g. the
same person participates in the investigation and perhaps also in making the decision to
proceed to a hearing and then also sits on the hearing itself or appoints the person who will
sit on the hearing]
 perceived problem: prejudgement
 problem: many judicial models use an inquisitive model and do not contend with the
issue of pre-judgement
British
Columbia
Nurses’ Union
v. British
Columbia’s
Women’s
Hospital (BCCA
1997)
Example: Brosseau
Facts: nurse accused of shaken a baby and being disciplined by the employer; grievance;
in the first proceeding, the arbiter made a clear finding that the nurse’s evidence was not
credible and not to be preferred; LRB heard appeal and it found that a denial of PF had
inadvertently occurred (evidence was not disclosed); LRB referred back to the same
arbiter; BCNU sought finding of reasonable apprehension of bias
Decision: LRB erred in remitting to the same arbiter (“patently unreasonable”) because the
arbiter had made a clear finding of credibility (BCSC and BCCA)
Reasons:
(1) rare case in which remission to the same tribunal is not permissible
(2) specific finding on the basis of credibility made it unrealistic for the arbiter to start

Law 301: Administrative Law
Committee for
Justice and
Liberty v.
Canada
(National
Energy Board)
(SCC 1978)
G. Morgan (Crane, Fall 2012) | Page 48
afresh without this conclusion
Chronology:

Late 1971: Crowe becomes President of Canada Development Corporation (Crown corp)
July 1972: study group formed re feasibility of “pipeline prospects”
November 30, 1972: Crowe becomes associated with study group as representation of
CDC [Canada Arctic Gas Pipeline (CAGP) created]
December 7, 1972: Crowe a member of Management Committee of study group
December – October 15, 1973: Crowe participates in meetings of study group and is part of
decision re: ownership and routing of the proposed McKenzie Valley Pipeline
October 15, 1973: Crowe becomes Chair and CEO of National Energy Board (NEB)
March 21, 1974: CAGP applies to NEB for approval to build pipeline
April 1975: NEB assigns Crowe to chair panel to hear application
October 1975: NEB hearings open
Decision: SCC disqualified Crowe
Reasons:
(1) fairly high and strict standard  minimal concession to administrative nature of
body/decision in majority decision
(2) articulation of RAOB test in dissenting reasons
(3) RAOB = public confidence  given Crowe’s involvement with the study group, is
there not a possibility that Crowe has prejudged
Dissenting reasons:
(1) NEB should be staffed by persons with expertise
(2) lesser standard should apply given that the NEB makes policy decisions
(accordingly not as high as adjudicative decisions)
Wewaykum
Indian Band v.
Canada
(SCC 2003)
n.b. the fundamental problem with expertise, and the shift from the regulated to the
regulator (or vice versa)
Facts: Binnie wrote the unanimous decision in 2002 dismissing the Wewaykum Indian
Band claim, which was initiated in 1985 and 1989. In 2003, the Band requested
information from the Department of Justice involving Binnie J.’s involvement with the claim
during his tenure as Associate Deputy Minister of Justice in 1982-86. The request turns up
information that Binnie had some information concerning the Band’s claim and attended a
meeting where the claim was discussed.

Decision: no RAOB
Brosseau v.
Alberta
Securities
Commission
Reasons:
(1) strong presumption of judicial impartiality (probably stronger for judges than other
administrative decision makers)
(2) involvement = limited, advisory and supervisory (contrast with Crowe); role was
more than pro forma management but never counsel of record, no role after the
original claim was initiated, and no involvement in the specific facts but rather only
in general strategy
(3) recent = 15 years between last contact with the matter and the judicial
involvement
(4) even if RAOB, there were 8 other judges on the appeal who were not tainted
Facts: Chair of the Alberta Securities Commission received information from the Minister of
Consumer Affairs and instructs the investigative arm of the agency to investigate.
(Brosseau is the solicitor for the company and it is alleged that he is involved). Staff
prepares the investigative report and provides it to the Chair. Chair reviews and decides to

Law 301: Administrative Law
(SCC 1989)
G. Morgan (Crane, Fall 2012) | Page 49
hold a hearing. Chair also places himself on the hearing panel.
 statutory authorization defence often plays a role in overlapping functions
 in this case, the statute contemplated that the Chair would fulfill multiple roles
 however, normally there would be an issue with the investigation and the adjudication
being mixed up (especially in this context with a high comparison to a judicial role therefore
likely high expectation of PF  but also not a judicial function)
 highly contextual approach
 economic crime: courts tend to help people track down those nasty white collar criminals
Individual Bias Issues: Attitudinal Predisposition
Topic
Attitudinal Bias
Notes
personal animosities that arise at or are clearly evidenced at the hearing itself, though the
decision-maker's conduct or comments during the proceedings (eg. hostile questioning of
witnesses, rude behaviour, disparaging remarks, condescending treatment), may give rise
to an allegation that the d/maker holds, or has developed, a particular animosity or a
discriminatory attitude towards a party or a counsel; this kind of attitudinal bias is
sometimes referred to as “actual bias” (presumably because it is evidenced by the actual
words or conduct of the d/maker); consider whether the IO in Baker could be said to fall
within this category
Key Concepts

on the other hand, it may be difficult to establish bias based on a decision-maker’s
previously expressed opinions or public advocacy about the general subject area in which
the d/maker is now adjudicating:
Examples: Gale v Miracle Foods (aka Great Atlantic and Pacific v. OHRC); Baker
(language suggests discriminatory opinions and unnecessary opinions on public policy)
a “relaxed standard” re attitudinal bias (the “closed mind” test) has been adopted by the
SCC in the case of municipal councilors:
Examples: OSBRA, Save Richmond Farmland
the “relaxed standard” re attitudinal bias has been cautiously extended to members of
“policy boards” in certain (limited) circumstances
Gale v. Miracle
Foods (Great
Atlantic and
Pacific v.
OHRC)
(ON Div Ct
1993)
Newfoundland
Examples: Newfoundland Telephone
Facts: Backhouse was a feminist academic who was an advocate for liberal interpretations
of human rights legislation (especially with respect to systemic sex discrimination);
appointed to hear a case under the Ontario human rights system with respect to systematic
sex discrimination

 alleged disqualification on two grounds: (1) advocate for liberal interpretations of human
rights legislation; (2) complainant in a systemic sex discrimination case (cause celebre at
the time and although in the past it was still a live complaint and did not remove herself
from the complaint until after the proceedings started)
Reasons:
(1) did not decide on (1) but found that there was a sufficient RAOB on (2)
(2) shore up problem with (2) that since both cases address systemic discrimination,
she can effectively set the precedent for her case, which is dormant but not
resolved
(3) problem: balance need to have individuals with experience in the adjudicative
model
Facts: Newfoundland Telephone Company (NTC) has monopoly on provision of telephone

Law 301: Administrative Law
Telephone
Company v.
Newfoundland
(Board of
Commissioners
of Public
Utilities) (SCC
1992)
G. Morgan (Crane, Fall 2012) | Page 50
services. Board of Commissioners of Public Utilities (BCPU) controls rates. Only
requirement that not an employee of NTC or financial interest. Wells previously a
consumer advocate and municipal councillor who was appointed to the BCPU. He
announced that he was going to play an adversarial role as a champion of consumer rights.
Evaluation of NTC expenses that are allowed in consideration of rate setting, specially
whether these expenses include executive pay and benefits package (i.e. can these costs
be passed on to the ratepayers). Before the hearing, Wells describes the pay as ludicrous
and unconscionable. NTC objects to Wells’ participation based on a RAOB. BCPU did not
believe that it had jurisdiction to consider this question and therefore continued with the
hearing. During the hearing and after (prior to the decision), Wells makes further
statements to the media. Decision  disallow enhanced costs of the pension plan
(included a rebate based on the disallowance) but no order on executive salaries.
Decision: Wells’ statements during and after the hearing demonstrated a RAOB
Reasons (Cory J):
(1) excellent discussion on the types of administrative bodies
(2) bifurcated approach to bias: in the pre-hearing process, the standard of behaviour
on a policy board = closed mind test (i.e. nothing that indicates that the decision is
already decided); however, once the hearing begins, there is a higher standard
(RAOB) applies
Individual Bias Issues: Pre-Judgement & Municipal Officers
Topic
Relaxed
Standard for
Bias &
Municipal
Councillors
Notes
 reminder: flexible bent (be prepared to make appropriate allowances for the kind of
schemes at issue)
Key Concepts

Municipal councillors = elected (presumption that they are elected based on the positions
that they adopt, and that they will uphold those positions after election)
Standard (Old St Boniface Residents Association) = as long as the decision maker retains
an open mind, open to persuasion and representations are not futile  not a final opinion
that is incapable of change
Old St Boniface
Residents
Association v.
Winnipeg (City)
(SCC 1990)
Save Richmond
Farmland
Society v.
Richmond
Limited context: does not apply to all decision making by municipal councillors  only
applies to bias allegations of attitudinal bias / prejudgement / etc. (excluded
personal/financial/business bias allegation)
Facts: councillor (Savoie) took early pro-development position (but no financial interest)

Bias issue: prior involvement in subject matter; prejudgement; attitudinal bias
Decision: not a disqualification on the basis of bias  relaxed test for bias in this context
(municipal councillor)
Reasons (Sopinka J. for the majority):
(1) test = as long as the decision maker retains an open mind, open to persuasion
and representations are not futile  not a final opinion that is incapable of change
(2) policy consideration: legislative decision (nowhere close to quasi-judicial)
(3) statute does not require disqualification on the basis of holding an opinion on the
issue (which wouldn’t make sense in the context of municipal councillors / elected
officials)
Facts: councillor took early position that farmland should be re-zoned as residential
(similarly no financial interest)
Bias issue: prior involvement in subject matter; prejudgement; attitudinal bias

Law 301: Administrative Law
(Township)
(SCC 1990)
G. Morgan (Crane, Fall 2012) | Page 51
Decision: not a disqualification on the basis of bias  relaxed test for bias in this context
(municipal councillor)
Reasons (concurring) of La Forest J.:
(1) open minded standard = difficult (i.e. the councillor had said “I’ll listen carefully but
I’m not going to change my mind”; advised the media that he was in favour and he
would need a lot persuasion to change mind)
(2) no standard could be applied in this case  bias allegations cannot be raised in
this context given the political / elected nature of municipal councillors
(3) preferable to have no room at all for bias allegations for frivolous matters b/c it
would v (would be frivolous if only for the significant
(4) how do we measure amenability? all about how the councillor postures (i.e. would
only capture the lip service)
Chrétien v.
Why maintain the standard?
(1) only way to give meaning to the hearing (as otherwise the hearing would be
meaningless), which is provided by statute (i.e. presumption that the hearing is
intended to have effect)
Facts: Sponsorship scandal. Judge leading investigation

Statutory Authorization Defence
Topic
Statutory
Authorization
Defences
CUPE v.
Ontario
(Minister of
Labour) (SCC
2003)
Notes
Complete defence to deficiencies in statutory regimes with respect to participatory rights to
bias rights (Brosseau)
 however, must be express or clearly implicit to override the strong presumption for
procedural fairness, natural justice, etc. (limit: rights document that trumps statutory
provision)
Facts: Minister of Labour appoints Chairs of HAD Board; HAD Board arbitrates interest
disputes in the public sector health industry (i.e. what should wage settlement be); public
sector health costs = significant part of provincial government spending; Minister is a
member of a cost-cutting government committed to pay restraint; historically, neutral chairs
would be appointed (i.e. union and employers would buy in to appointment); concern that
Minister will appoint Chairs who will enact government policy (lower wage settlements);
fiscal incentive (although not direct employer, provincial government is the funder)
Key Concepts


Decision: statutory authorization is a complete defence
MacBain v.
Canada
(Human Rights
Commission)
(FCA 1985)
Reasons:
(1) Ocean Port Hotel: absent a constitutional challenge, the statute prevails over the
common law
Example of rights document trumping statutory authorization
Facts: Canadian Human Rights Commission (quasi-judicial)
Process:
CHRC  receives complaint
 staff investigates and reports with recommendation to either dismiss or refer to
hearing
 CHRC receives staff report and decides either to dismissal or refer to Tribunal
If CHRC refers to Tribunal
 CHRC Chief Commissioner selects Tribunal panel to hear case from the list of
possible Tribunal members
 CHRC lawyers prosecute the case before the tribunal

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 52
Problem: statute provides a mechanism by which the CHRC selects the Tribunal at which it
prosecutes  concern: either the Commissioner selects the panel that would be most
amenable to the case, or the panel will want to please the CHRC to ensure further
appointments
However, Canadian Bill of Rights s. 2(e) applies
 determination of rights (right not to discriminate)
 fundamental justice does not permit this type of bias (despite statutory
authorization)
Remedy: holds the section of the Canadian Human Rights Act that allows appointment of
Tribunal inoperative in this case (but clearly applicable to others , which prompts quick
amendments from the legislature  maintain CHRC up to Tribunal and then create a
separate body to operate the Tribunal / appoint panel)
n.b. that in BC, there is no comparable document to the Canadian Bill of Rights; not likely
covered under Charter
Procedural Fairness and Tribunal Independence
???
Topic
Introduction
Notes
 still a current debate
Institutional
Independence
 typically independence from the executive branch or other appointing agency
 independence of the institution (decision making agency) as a whole from the executive
branch of government = freedom from political control or influence of government
 linked with judicial independence concepts and tests
 concern is with the status of the tribunal as a whole and the existence of certain
conditions or guarantees of independent status
 reference to the “independence of mind” of each of the individual decision makers who
are assigned to hear a matter and make a particular decision
 decisions free from the interference or influence of others, including by other members
of the agency who have not been assigned to hear that particular case and from the staff of
the agency including the Chair or legal advisors
 problem: agencies attempting to achieve consistency in decision making;
“institutionalized” or “collegial” decision making (c.f. IWA v. Consolidates-Bathurst, SCC
1990; Tremblay v. Quebec, SCC 1992)
Why independence?
 necessary to ensure impartiality and the appearance of impartiality in decision
making (Qubec Inc., Bell Canada)
 ensure decision maker is free to exercise independence judgement in decision
making without being, or appearing to be, beholden or in the thrall of “the
government” and that it is seen by the public to be free in this sense
 promotes public confidence in the justice system
 promotes perceived legitimacy of decision making
 especially importance if the decision maker routinely decides cases involving
the Crown
Individual
Independence
(Adjudicative
Independence)
Purpose of
Institutional
Independence
n.b. impartiality can be assessed on an institutional or structural basis  the way in which
a decision making system is structured and how it routinely operates can give rise to a
disqualifying RAOB at an institutional level (e.g. overlapping functions in Quebec Inc.,
Brosseau); the test for bias in such cases is whether a well-informed persona, viewing the
matter realistically and practically and having thought the matter through, would have a
Key Concepts




Law 301: Administrative Law
Test for
Institutional
Independence
G. Morgan (Crane, Fall 2012) | Page 53
RAOB in a substantial number of cases because of the way in which che decision making
process has been structured (Quebec Inc. ¶44)
 tied to bias but based on a

Fundamental question: whether there is a RAOB [reasonable apprehension of an
insufficient level of impartiality] because of a lack of sufficient independence?
Assessment of judicial independence of provincial courts in Valente v. The Queen (SCC
1985):
(1) security of tenure
(2) financial security
(3) institutional independence regarding administrative arrangement that are closely
related to judicial functions (i.e. the assignment of cases, management of court
listings, scheduling of cases, etc.)
Test: is there a reasonable apprehension of lack of sufficient independence in light of
these factors? (modulate three criteria in context of the administrative tribunal)
Conceptual problems with applying Valente (Lamer J. in Matsqui):
(1) only applies to administrative decision makers that are court-like and have
adjudicative functions
(2) flexibility to take account of the administrative context
(3) principle of independence is at its strongest where a constitutional or quasiconstitutional guarantee of an independent tribunal is applicable
(4) where arrangements for tenure, remuneration and administrative independence
are expressly dealt with in a statute, the defence of “statutory authorization” will
provide a complete defence to any purported “lack of independence” based on the
common law of procedural fairness, unless a constitutional or quasi-constitutional
guarantee that can override the statute is applicable (Ocean Port Hotel)
Sources of
Guarantees of
Independence
Judicial
Independence:
Valente (SCC
1985)
BUT ongoing debate: notwithstanding Ocean Port Hotel, does the “unwritten constitutional
guarantee” of judicial independence (flowing from the Preamble to the Constitution Act,
1867 as found in the Reference re Provincial Court Judges, SCC 1997) apply to some
administrative tribunals?  attempt to restrict/distinguish Ocean Port, however, has
largely been unsuccessful
 Charter s. 7  where it applies to the decision-making of administrative tribunal
(also Charter s. 11(d) in certain rare cases)
 Canadian Bill of Rights s. 1(a) and s. 2€ where it applies to federal decision
making
 Quebec Charter of Rights and Freedoms s. 23 where it applies
 Alberta Bill of Rights s. 1(a) where it applies
 Legislation (statutes and regulations)  e.g. Administration Tribunals Act ss. 2-10
 Common law of procedural fairness (will include inepdnence requirements for
some administirative makers per Matsqui and will apply if not overridden by
express statutory provisions that displace the common law
Source: Charter s. 11(d)
criteria to measure judicial independence required under s.11(d) of Charter in relation to
the criminal law jurisdiction of Provincial Court Judges was determined and the rationale for
judicial institutional independence was described as follows
15. ... Although there is obviously a close relationship between independence and impartiality,
they are nevertheless separate and distinct values or requirements. Impartiality refers to a state
of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The


Law 301: Administrative Law
Reference re
Provincial Court
Judges (SCC
1997)
[R. v. Campbell]
G. Morgan (Crane, Fall 2012) | Page 54
word "impartial" ... connotes absence of bias, actual or perceived. The word "independent" in s.
11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it
connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a
status or relationship to others, particularly to the executive branch of government, that
rests on objective conditions or guarantees.[emphasis added]
Source: Preamble to the Constitution Act, 1867

SCC held that there is an unwritten constitutional principle of judicial independence rooted in
the preamble to the CA 1867 that(constitution similar in principle to the UK) that protects the
judicial independence of provincial courts in civil matters
per Philip Bryden: the Campbell case prompts the question of what constitutionally relevant
distinction can be drawn between a provincial court exercising a limited civil jurisdiction and a
provincial administrative tribunal established to adjudicate disputes under a particular statute?
Canadian Pacific Facts: nascent system of tax assessment set up by Bands (part of a self-government
Ltd. v. Matsqui
initiative in BC)  CP bypasses the assessment appeal/review processes within the Band
Indian Band
system to seek judicial review of an assessment decision
(SCC 1995)
Issue: were the band review/appeal processes adequate alternative remedies that should
have been exhausted first (before JR was sought)?
 independence issue: were the band appeal/review bodies not adequate alternate
remedies because they lacked sufficient independence from the bands who appointed
them

SCC decision: 3 judges decided on grounds unrelated to independence; 6 judges dealt with
the independence issue (split 4:2 on how / when to assess the independence criteria)
Lamer J.  worst possible scenario (no objective guarantees of independence = no
independence =
Sopinka J.  can only assess independence based on operation on the ground and it is
therefore too early to determine whether there is sufficient independence (i.e. operational
reality); accordingly, send back to exhaust the remedies
What tribunals? When is independence required by the common law?
"... where the tribunal is functioning as an adjudicative body settling disputes and
determining the rights of parties” [per Lamer CJC in Matsqui]
Flexibility is required:
Canadian
Pacific Ltd. v.
Matsqui Indian
Band (SCC
1995)
"... the test for institutional independence must be applied in light of the functions
being performed by the particular tribunal at issue. The requisite level of
institutional independence (i.e. security of tenure, financial security, and
administrative control) will depend on the nature of the tribunal, the interests at
stake, and other indices of independence such as oaths of office." [per Lamer
CJC in Matsqui]
Facts: review/appeal bodies for band tax assessments  do these bodies constitute
adequate alternate remedies? (independence issues arises in the context of whether the
bodies are AAR)
(Flexible) application of Valenté criteria:
(1) security of tenure

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 55
(2) financial security
(3) independence regarding “administrative matters” related to adjudication (e.g.
assigning cases, scheduling, etc.)
Issue:

Katz v.
Vancouver
Stock Exchange
(SCC 1996)
Québec Inc. v.
Quebec (Régis
des permis
dàlcool) (SCC
1996)
“arm’s length” issue: band will appoint members of review/appeal bodies but the
band benefits from the tax assessment
 in municipalities (analogous but not comparable), the province appoints
members of review/appeal bodies
Reasons:
 Lamer J. does not believe that the review/appeal bodies are inadequate AAR
because
 difference between operational reality and objective guarantees
 Lamer J. considered the objective guarantees (which did not exist in many
areas) to conclude that there was no independence
 contrast with reasons of Sopinka J. who adopts a “wait and see” approach
 all parties agree that it is good to have band members on the review/appeal
bodies
Facts:
Reasons:
 the Court considered the operational reality of the scheme (look beyond the
bylaws to see the rules) to consider the Valenté criteria
Facts: Quebec Charter s. 23 guarantees a full hearing in front of an impartial decision
maker


Two arguments: (1) problem with undefined roles for legal counsel involved with the Régis,
which could include investigation, prosecution and advice on judgements; and (2)
overlapping functions with respect to the Director and the panels (similar to Brosseau)
Challenge with independence is the contact between the Minister and the Régis:
 annual report obligation

 policy considerations: how do we make administrative tribunals independent without
losing accountability (to ensure that the tribunals are functioning as designed and as
efficiently as possible)
Decision:
Ocean Port
Hotel Ltd. v.
British
Columbia
(General
Manager,
Liquor Control
Reasons:
 no RA of lack of institutional independence when it is the supervision that you
would expect a Minister to have over an administrative agency
 alternate solution: an arm’s length body that provides supervision
responsibilities to a number
Facts: suspension of the liquor license for two days but the two days were the weekend
(hence greater impact). Appeal to Liquor Appeal Board (LAB) upheld suspension. Direct
appeal to BCCA
Process:
 an investigator investigates alleged infractions of the Liquor Control and Licensing
Act

Law 301: Administrative Law
and Licensing
Branch) (SCC
2001)


G. Morgan (Crane, Fall 2012) | Page 56
a senior investigator holds a hearing and imposes a penalty
 penalty = up to 14 days license suspension
appeal to LAB  full trial de novo
Issue: legislation that created the LAB said that the members were appointed at pleasure
therefore Ocean Port Hotel argued that there was no indepndence
Decision: authorized by statute (but somehow this was ignored at trial and the BCCA …)
Reasons:
 ¶19-22
 if silent statute, court will infer that the common law principles (including
independence) will apply
 however, cannot read in the common law when the statute is express that the
common law is ousted (unless overridden by a constitutional or quasiconstitutional document)
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 57
Part III: Substantive Review
Introduction to Substantive Judicial Review
Framework: Historical and Theoretical Context
Topic
Theoretical
Perspectives
Key question
Standards of
Review
Notes
Justice Scalia (US Supreme Court): “Administrative law is not for sissies”
Audrey Macklin, “Standard of Review” (CB 198): “The longer answer to these questions
[about substantive judicial review] requires embarking on a tortuous route through the
history of judicial review, the rise of the administrative state, critical approaches to textual
interpretation, and an evolving conception of the rule of law. As Bette Davis famously
warned in All About Eve, “Fasten your seatbelts. It’s going to be a bumpy night”
By what standard will a court review a decision of an administrative tribunal and grant a
remedy on the ground that there has been an error on a question of law, a question of
jurisdiction, a question of mixed fact and law, a question of fact or an abuse of
discretionary power?
Historically, courts applied one of three standards of review to both judicial reviews and
appeals (when statutorily provided) from the administrative body.
Key Concepts



Standards of Review pre-Dunsmuir:
(1) correctness
(2) deferential standard of review
 patent unreasonableness (Canadian Union of Public Employees, Local
963 v. New Brunswick Liquor Corp. [SCC 1979])
 reasonableness simpliciter
Post-Dunsmuir, there are two standards of review in the common law: correctness and
reasonableness
Primary Area of
Focus: Statutory
Interpretation
Rule of Law
Context
However, in British Columbia, the standard of review is established in the Administrative
Tribunals Act (if the ATA applies). This means that “patent unreasonableness”
 errors made by the tribunal in interpreting its statutory mandate (i.e. interpretation of the
enabling legislation)
 types of errors:
 errors of law
 errors of jurisdiction  sub-set of errors of law but an uber-law (will return to later)
 errors of mixed fact and law
Example:
CUPE v. New Brunswick Liquor Corp. (SCC 1989)
 Issue: the meaning of the statutory language used in s.102(3)(b) of the Public Service
Labour Relations Act  how to interpret “with any other employee”)
Classic conception (A.V. Dicey):
 courts as champions/guardians/bulwarks against the exercise of arbitrary state
power
 consequently courts are the best decision makers to determine the “correct”
meaning of statutory grants of power, and to act vigilantly to ensure that tribunals
do not exceed this authority
Functionalist critique:
 administrative systems should be both effective and efficient to achieve their


Law 301: Administrative Law

G. Morgan (Crane, Fall 2012) | Page 58
remedial and regulatory purposes
administrative bodies are selected instead of courts to achieve goals such as
quicker processes, cheaper processes, different methodologies, specialized
expertise, and different ideologies
Justice Learned Hand (US): “However, there cannot be any doubt that acquaintance with
the field does make one’s judgment better than that of the ordinary boob judge”
Harry Arthurs (Canadian legal scholar): “There is no reason to believe that a judge who
reads a particular regulatory statute once in his life, perhaps in worst case circumstances,
can read it with greater fidelity to legislative purposes than an administrator who is sworn
to uphold that purpose, who strives to do so daily and is well aware of the effect of his
decision”
Wilson J. in National Corn Growers (SCC 1990):
“Courts have also come to accept that they may not be as well qualified as a given agency
to provide interpretations of that agency's constitutive statute that make sense given the
broad policy context within which that agency must work.”
Legal Sources
of the Court’s
Power to
Conduct
Substantive
Review
Appellate
Review
Common law
But still an ongoing debate
Bastarache and LeBel JJ. in Dunsmuir (SCC 2008):
As a matter of constitutional law, judicial review is intimately connected with the
preservation of the rule of law. It is essentially that constitutional foundation which explains
the purpose of judicial review and guides its function and operation. Judicial review
seeks to address an underlying tension between the rule of law and the foundational
democratic principle, which finds an expression in the initiatives of Parliament and
legislatures to create various administrative bodies and endow them with broad
powers. Courts, while exercising their constitutional functions of judicial review, must be
sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding
undue interference with the discharge of administrative functions in respect of the matters
delegated to administrative bodies by Parliament and legislatures” (¶27, emphasis added)
Two basic sources of judicial jurisdiction to conduct substantive review:
(1) appellate review: ONLY if the statute grants a right to appeal to a court from a
decision of an administrative decision-maker (n.b. many statutes are silent)
(2) judicial review under either:
(i)
general supervisory jurisdiction of the superior courts in the provinces to
control inferior tribunals or other bodies
(ii)
Federal Court Act
The enabling statute must provide for such an appeal
 scope of grounds for an appeal depend on wording of the appeal provision
 remedies available on appeal may also be defined in the appeal provision
Where the appeal is on the basis of “error of law”, the traditional starting presumption was
the correctness standard
 however, an appeal court may decide that judicial deference should be accorded to the
administrative tribunal on certain questions of law
Judicial review is essentially a common law power (recognized in s. 96 of the Constitution
Act, 1867 per Crevie])
 based on the notion of “jurisdiction”: courts could quash decisions by administrative
tribunals that exceeded jurisdiction
 common law also provided a remedy for an “error of law on the face of the record”
(irrespective of whether there was a jurisdictional error)
n.b. courts quash/set-aside or confirm the decision; there is no substituted decision (i.e.



Law 301: Administrative Law
Federal Courts
Act
Privative
Clauses
G. Morgan (Crane, Fall 2012) | Page 59
goes back to the administrative tribunal for a new decision)
 federal boards, commissions or tribunals are defined broadly in FCA s. 2
 FCA s. 28 specifies tribunals to which judicial role goes directly to the FCA (as opposed
to FC, which is presumptive for all non-listed tribunals)
 FCA s. 18(1) specifies grounds for judicial review
Privative clauses “oust” court’s jurisdiction  but limited application (even before Crevier,
which specified the jurisdiction grounds, courts would read down privative clauses to “the
legislature only wants us to keep out if the tribunals are acting within their jurisdiction”)


Ex: CUPE v. New Brunswick Liquor at ¶14
Why does the legislature want to exclude the courts? (Dickson J. in CUPE)
(1) quick resolution to labour disputes (finality)
(2) cheaper process than courts because employers are typically better positioned to
bear the costs of litigation than employees/unions
 minimize the fiscal disparity between parties by excluding litigation
(3) wants labour relations expertise brought to bear in decision making
 courts historically did not have a “good track record” in labour matters
 different kind of expertise brought to bear on the decision making
 c.f. Southam
Problems with
Jurisdictional
Error
Determining the
Standard of
Review
(Chronology)
BC’s Legislated
Approach to
Standard of
Review
CUPE v. New
BUT per Crevier superior courts do have jurisdiction
How do courts identify a jurisdictional error? How is a jurisdictional error distinguished
from other kinds of errors?

Pre-CUPE: preliminary questions doctrine (discarded in CUPE and then Bibeault)
 core area protected by privative clauses
 questions that are preliminary or collateral to the “core” are questions that go to
jurisdiction  i.e. questions that establish the authority
 doctrine applied in CUPE by the trial and appellate courts  determination of the
statutory interpretation was a preliminary question to the main question
(accordingly, the standard of review was correctness)
 problem: almost any question could be interpreted to be a preliminary question
 Beetz J. in Bibeault: “in its decision, a tribunal may have to decide various
questions of law. Certain of these questions fall within the jurisdiction conferred
on the tribunal; other questions, however, may concern the limits of its jurisdiction.
… a tribunal cannot by a misinterpretation of an enactment assume a power not
given to it by the legislator”
Post-CUPE and Bibeault: what should the standard of review be in a given case?
(1) CUPE v. New Brunswick Liquor (SCC 1979)
(2) Bibeault (SCC 1988)  genesis of the “pragmatic and functional” approach to
determining when deference should apply
(3) Southam (SCC 1997)  expansion of the circumstances in which deference will
apply; recognition of third standard of review (“reasonableness simpliciter”)
(4) Pushpanathan (SCC 1998)  entrenchment of the pragmatic and function
approach; judicial focus on how to determine the standard of review
(5) Toronto v. CUPE Local 79 (SCC 2003)  LeBel J.’s cri de coeur over the
complexity of determining standard of review
Administrative Tribunals Act ss. 58-59
 establish the standard of review for a particular matter only if they have been
expressly made applicable to the particular tribunal at issue through provisions of
that tribunal’s enabling statute
Facts: strong privative clause; problem of statutory interpretation (act prohibits employers



Law 301: Administrative Law
Brunswick
Liquor Corp
(SCC 1979)
Union des
Employes de
Service, Local
298 v. Bibeault
(SCC 1988)
Canada
(Director of
Investigation
and Research)
v. Southam Inc.
(SCC 1997)
G. Morgan (Crane, Fall 2012) | Page 60
from replacing striking employments; definition of employee excludes managers; and
NBLC used managers to replace striking employees during a strike)
Decision: patent unreasonableness b/c home statute, expertise and strong privative
clause; interpretation was reasonable
Reasons:
(1) preliminary questions doctrine is “not helpful”
(2) defined “jurisdictional questions” in a very narrow way
(3) said the preclusive clause (privative clause) is a clear signal that the Legislature
wanted the PSLRB’s decisions that are made within its jurisdiction to be shielded
from JR on a “correctness” standard (PSLRB should have the right to be wrong
(i.e. incorrect in the eyes of the court) on matters that are within the scope of the
jurisdiction the legislature assigned to them)
(4) referred to the need for courts to respect the “specialized jurisdiction” of the
PSLRB
 deference as a form of respect for the specialized expertise of the labour
relations board
(5) finds that the interpretation question at issue lies within the heart of the
specialized jurisdiction of the PSLRB
(6) BUT held that matters that lie within core the jurisdiction of the PSLRB are not
entirely immune from all review – they are subject to review on a patent
unreasonableness standard
[i.e. if the PSLRB decision on a matter within its jurisdiction to decide is PU, that
will be a “jurisdictional error” and the court will quash the decision (a “rationality”
test applies)
(7) discussed what would constitute a PU decision
(8) applied the PU standard of review to the PSLRB decision at issue by asking (at
para 16):
was the Board's interpretation so patently unreasonable that its construction cannot
be rationally supported by the relevant legislation and demands intervention by the
court upon review ? Concludes that the answer is NO - the decision is therefore
not PU and the Board's decision should therefore be allowed to stand.
(9) emphasized that the ambiguity in the wording of s. 102(3)(a) was acknowledged
and undoubted -- no one interpretation could be said to be "right"
Facts: labour dispute occurred over whether the subcontractor had to keep the same
benefits as its predecessor; labour commissioner ; Labour Court upheld labour
commissioner’s decision (11 person panel with 8 separate reasons issued); SC granted
motion for evocation (calling out or removal of a caution or action from an inferior to a
superior court); QCCA confirmed SC decision; SCC dismissed appeal
Second issue: How much should courts interfere with the decision reached by the
administrative tribunals?
 always coloured by subjective perception of the tribunal’s decision and whether it was
right or wrong
Even when there is an appeal provision, deference may still apply  the legislatures
created the tribunals for a reason (especially with specialized bodies)
Decision:
Reasons:
(1) even though there is an appeal provision, a pragmatic and functional approach
should be used to decide in the court should exercise deference in reviewing the
decision of this expert Tribunal


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 61
(2) the question at issue is one of “mixed fact and law” (Iacoucci J. gives guidance
about how to distinguish questions of law and questions of mixed law and facts)
 the more unique the answer of the question of law is to the specific facts, the
more likely it is to be a question of mixed fact and law
 will the answer create a legal precedent? more likely to be a question of law
(3) standard of review = reasonableness simpliciter
 defined in Southam but previously used in ???
 n.b. does not exist at common law post-Dunsmuir
(4) applying the standard of review, the Court held that it could not say that the
Tribunal’s decision was unreasonable and therefore it should stand
Southam
(continued)
Pushpanathan
v. Canada
(Minister of
Citizenship and
Immigration)
(SCC 1998)
Key take-aways in light of Dunsmuir:
 extension of the possibility of judicial deference to appeals (as opposed to judicial
review)
Key take-away in light of Dunsmuir:
 extension of the possibility of judicial deference to appeals (as opposed to judicial
review)
 extend pragmatic and functional approach to appeals and determining the SoR
 reasonableness simpliciter standard of review
 unique features in the composition of the Competition Tribunal: four judicial
members (judges of the FC-TD) and up to eight other lay members (but experts in
the field of competition)
 q’s of law = judges; q’s of mixed law and fact and q’s of fact = all members
 n.b. considering expertise = evaluation of relative expertise compared to the
courts
Facts: Pushpanathan was convicted of conspiracy to traffic (found with a group and $10
million of heroin); Pushpanathan was denied refugee status because he was convicted of
narcotic trafficking prior to his IRB hearing (but after arrival in Canada), and the refugee
convention excluded based on “has been guilty of acts contrary to the purposes and
principles of the UN”
Decision:
Reasons:
(1) courts must always determine the appropriate standard of review that must be
applied (no short cut; must apply pragmatic and functional approach)
(2) courts must always use the pragmatic and functional approach to determine the
standard of review
 Bastarache J. clarifies the P&F approach: consider specific question before the
board (not just the board) [proceed on a question-by-question basis]
(3) proper standard of review in this case (issue = pure question of law) = correctness
(4) RDD decision was incorrect and therefore set aside and remitted to RDD for
further process in light of the SCC’s decision
Pragmatic and function approach: 4 factors that must be considered but none are
determinative
1) private clause or appeal provision?
2) expertise
 key rationale for deference
 post-Dunsmuir: likely still the operative underlying factor
3) purpose of the Act as a whole and of the specific provision at issue in particular
 especially major economic specialities like competition, labour relations, etc
4) nature of the problem: question of law? question of fact? question of mixed law
and fact?


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 62
 problem: tedious and non-predictive
 Macklin: 3 and 4 as an elaboration of expertise
Law Society of
New Brunswick
v. Ryan (SCC
2003)
Toronto (City) v.
CUPE Local 79
(SCC 2003)
Dissent: agreed that SoR = correctness
Facts: lawyer who lied to clients about the progress of case and eventually made up a
decision when he had not proceeded at all on the case


what’s the rationale for deference when there is a full appeal provision? Limited
 judges, after all, were lawyers and lawyers are the ones sitting on disciplinary
committees
 however, lawyers on the disciplinary committee have expertise from being closer
to the profession and the standards (as judges are no longer in that realm) + field
expertise (get expertise from sitting on the committee)
Facts: City employee found guilty of sexual assault. City fired him. He argued that the
termination was wrongful. Arbitrator considered the complainant’s testimony from the trial
but only heard from the employee. While the conviction was admissible, the presumption
of guilt was rebutted by the employee’s testimony. Trial, ONCA and SCC quashed
decision. Criminal conviction = BRD.

Justice LeBel’s cri de Coeur
Two issues:
(1) the interplay between correctness and patent unreasonableness both in the
instant case and, more broadly, in the context of judicial review of adjudicative
decision makers generally, with a view to elucidating the conflicted relationship
between these two standards; and,
(2) the distinction between patent unreasonableness and reasonableness simpliciter,
which, despite a number of attempts at clarification, remains a nebulous one.
“As the analysis that follows indicates, the patent unreasonableness standard does not
currently provide sufficiently clear parameters for reviewing courts to apply in assessing
the decisions of administrative adjudicators.
From the beginning, patent
unreasonableness at times shaded uncomfortably into what should presumably be its
antithesis, the correctness review. Moreover, it is increasingly difficult to distinguish from
what is ostensibly its less deferential counterpart, reasonableness simpliciter. It remains to
be seen how these difficulties can be addressed.”
New Era in Substantive Review: Dunsmuir
Topic
Dunsmuir v.
New Brunswick
(SCC 2008)
Notes
Questions (see handout):
(1) Dunsmuir as the opportunity to address the issues raised in the cri de coeur
 post-Dunsmuir: trace the minority opinion (especially the
Deschamps/Charron/Rothstein)
 likely not the last word from the Supreme Court of Canada on substantive
review
 problems: need a simpler test as the guidance is confusing for litigants
(clearest in Binnie J.’s opinion)
(2) what does the judgement do?
 two standards of review: correctness and reasonableness (redefined)
(3) redefines reasonableness
 focus on the quality of the reasons (do they do what they say that they do)
 fall within the range of reasonable outcomes? (i.e. some attention to outcome)
(4) deference  still exists but perhaps not as deferential with the elimination of
patent unreasonableness
Key Concepts

Law 301: Administrative Law
Two stepprocess
G. Morgan (Crane, Fall 2012) | Page 63
 why deference? range of possible reasonable (i.e. indeterminacy of
language); grant margin of appreciation if within the range of acceptable solutions
(5) correctness required for general issues and issues that go beyond the tribunal
(still need to know that the law
 correctness = own decision
(6) Jurisdiction essential: tension (never ending) between giving power to the
administrative tribunals to do what they are created to do, but also to ensure that
this authority is exercised within the limits proscribed by the legislature
 decisions must not be arbitrary, must be within the limits of law
Step 1: whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded with regard to a particular category of question
 if it has been determined, no need to “reinvent the wheel”
 categories:
 correctness = constitutional law (¶58); questions of general law of central
importance to the legal system and are outside the tribunal’s area of
expertise (¶60); jurisdiction between two tribunals; “true” jurisdictional
questions (¶59)
 reasonableness = q’s of fact, q’s of discretion, q’s of policy, q’s of mixed
law and fact (¶53)
Step 2: if it does not, apply the “standard of review analysis” to identify the proper SoR
 SoR analysis may not require extensive consideration of all four SoR factors as the
pragmatic and functional approach
Reasonableness The new SoR remains deferential (i.e. not intending to apply a higher threshold to
decisions by eliminating patent unreasonableness)
Rationale for deference (¶47):
 some questions have a number of possible reasonable outcomes
 tribunals should have a “margin of appreciation” within the range of acceptable
and rationale solutions
Reasonableness The court inquires into the following:
review
(1) the process of articulating the reasons (when there is a duty to give reasons: see
Baker)
 “in judicial review, a court is concerned mostly with the existence of
justification, transparency and intelligibility within the decision making
process” (¶47)
(2) outcomes
 “where the decision falls within a range of possible acceptable outcomes which
are defensible in respect of the facts and the law” (¶47)
 Khosa: not substituting own decision of what is “right” but rather whether the
reached decision was reasonable
How to
An exhaustive analysis is no longer required in every case to determine the SoR
Determine the
(contrary to the position in Pushpanathan, Ryan, Dr. Q) (¶57)
Standard of
Review
Two step process:
(1) ask whether the jurisprudence has already determined in a satisfactory manner
the degree of deference to be accorded with regard to a particular category of
question
 if yes, no requirement to “reinvent the wheel”
 problem: what does it mean to be determined by the prior jurisprudence?
unclear in Dunsmuir; see Khosa
(2) if it does not, apply the “standard of review analysis” to de
 slightly restated pragmatic and functional analysis but streamlined to be more
efficient




Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 64
“Short-cut” to SoR determination
SCC seems to have meant:
(1) consider if there is a specific precedent for the particular case that should be
applied
 problem: what if the precedent was established under the previous pragmatic
and functional approach? do reasonableness simpliciter and patent
unreasonableness translate directly to reasonableness?
(2) more generally, consider what the Court said about the “usual” or “likely” SoR of
various categories of questions
 i.e. apply the guidelines set out in Dunsmuir
 problem: what about questions of law in the home statute? majority
equivocates in Dunsmuir on this question
Categories for
Reasonableness likely to apply “automatically” to (¶53):
Reasonableness
 questions of fact
 questions of discretion
 questions of policy
 questions of mixed law and fact  whether the legal issues cannot be easily
separated from the factual issues; see Deschamps J. on this matter
Categories for
Correctness = no deference applies
Correctness
(1) constitutional questions (¶58)
(2) TRUE questions of jurisdiction or vires (¶59)
(3) questions of general law that are of “central importance to the legal system and
are outside the tribunal’s area of specialized expertise” (¶60)
 ex: CUPE v. Toronto, which addressed common law rules regarding res
judicata and abuse of process
 “Because of their impact on the administration of justice as a whole, such
questions require uniform and consistent answers” (¶60)
 BUT: criticism in Binnie J.’s reasons (essentially, what are these questions?)
(4) questions of jurisdictional lines between two specialized tribunals (¶61)
True Questions
of Jurisdiction
Why correctness in these situations?
 promote justice
 avoid inconsistency or authorized applications of law
Jurisdiction = narrow conception (not a return to the preliminary questions doctrine / preCUPE era with its expansive concept of jurisdiction)



’Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the
authority to make the inquiry. In other words, true jurisdiction questions arise where the
tribunal must explicitly determine whether its statutory grant of power gives it the authority
to decide a particular matter” (¶59)
 courts must be careful not to brand as jurisdictional questions that are only doubtfully so
(Dickson J. in CUPE)
But what about
questions of
law?
Example of a true question of jurisdiction (¶59):
United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (SCC 2004)
 true jurisdiction question = whether or not a municipality has the jurisdiction to enact a
particular bylaw
Can deference apply to questions of law? YES
“…many legal issues attract a standard of correctness. Some legal issues, however,

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 65
attracted the more deferential standard of reasonableness” (¶51)
Deference (reasonableness SoR) “usually results” when the tribunal is interpreting its own
statute or statutes closely connected to its functions with which it will have a
particular familiarity. Deference “may also 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 particular statutory context (e.g. adjudicators in labour law).
Factors that indicate a reasonableness SoR (¶55):
(1) privative clause
(2) discrete and special administrative regime in which the decision maker has
special expertise
(3) the nature of the question of law
Problem: replicate step 2 of the standard of review analysis  does this mean that
questions of law go through that process twice?
 remains unclear post-Dunsmuir
New Standard of When does this approach apply?
Review Analysis In Dunsmuir, it is unclear how often this step will be used.
(Pragmatic and
Post-Dunsmuir (i.e. Alberta Teachers’ Assn) suggest that it will be rarely used
Functional
Approach)
General application:
 do not need to consider
 overview/broad analysis as opposed to a painstaking factor-by-factor review postPushpanathan
Application to
the Case
(Majoirty)
Binnie J.’s
Reasons

SoR analysis is contextual and considers the following factors:
(1) the presence or absence of a privative clause
(2) the purpose of the tribunal as determine by interpretation of enabling legislation
 new: used to be the purpose of the statute and the purpose of the question at
issue within the statute
 Crane: probably doesn’t make any difference
(3) the nature of the question at issue

(4) the expertise of the tribunal
Considered factors in SoR analysis:
 full privative clause
 specialized regime/tribunal  labour relations tribunal (typically always deference
in these cases)
 legislative purpose  efficient (timely and cost-effective) dispute resolution
process in employment matters as alternative to courts
 question at issue was the interpretation of the home statute  was not of central
importance to the legal system and was within the tribunal’s area of specialized
expertise

Accordingly, the SoR was reasonableness. However, Mullan’s article critiquing Dunsmuir
points out that
Preference for a broader reappraisal with more simplicity and clearer rules
 warns that the “general question of law of central importance …” will lead to problems
as it is too complex

Binnie J.’s approach: accord more deference to decision makers. Except in cases with a
broad right of appeal, the starting presumption should be deference exception for errors of
law in three circumstances:
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 66
1) questions of jurisdiction
2) question of “general law” (Constitution, common law, civil law)
3) questions of procedural fairness
 warns that the majority’s reasons do not give sufficient weight to privative clauses,
which should be more than just a factor and rather significantly affect the degree of
deference accorded to the decision maker (legislative signal that higher deference should
apply)
Reasonableness as a single standard will need to be a “big tent” that covers varying levels
of deference accommodated within the reasonableness standard, depending on the nature
of the decision maker being reviewed, the breadth of the statutory mandate of te decision
maker, etc. (“who is deciding what”)
Deschamps J.’s
Reasons
¶139: “Contextualizing’ a single standard of review will shift the debate (slightly) from
choosing between two standards of reasonableness that each represented a different level
of deference to a debate within a single standard of reasonableness to determine the
appropriate level of deference. In practice, the result of today’s decision make be like the
bold innovations of a traffic engineer that in the end do no more than shift rush hour
congestion from one road intersection to another without any overall saving to motorists in
time or expense”
Current distinction between the two standards of reasonableness is untenable but instead
determine standard of review based on the nature of the question

Deference would always apply to:
 questions of fact (whether it’s an appeal or JR)
 questions of mixed fact and law where the question of law cannot be extricated
from fact (same deference as an appellate court would show a lower court on
such a question)
 exercises of discretion (unless the decision maker has exceeded its mandate)
 question of law when there is a) a privative clause, and b) the question is within
the tribunal’s expertise
Questions left
Correctness would apply to:
 questions of law where the administrative body has no expertise (i.e. questions
that are outside the home statute)
 questions of law of general application
 all questions of law where there in an appeal (thereby “undoing” the law
developed in Pezim, Southam, etc.)
(1) the role of “precedent” in determining the SoR
 must you find an specific existing precedent vis à vis this decision maker
exercising or interpreting the same statutory provision (i.e. “true” precedent)?
 or can you use the categories established by the court in Dunsmuir?
(2) what are “true” jurisdictional questions”?
(3) what are “questions of law that are of central importance to the legal system and
outside the tribunal’s area of specialized expertise”?
(4) how do we apply the “reasonableness” SoR?
 how can it be sufficiently flexible to accommodate the large variety of contexts
in which it will be applied (Binnie J.’s critique)?
 how do reasons factors into the reasonableness review?
 will the singular standard lead to more intrusive JR particularly when patent
unreasonableness apply?
 will courts conduct a “correctness” review under the guise of a
“reasonableness” review?

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 67
(5) does the Dunsmuir approach apply to JR under the Federal Court Act? statutory
appeals?
Post-Dunsmuir: Judicial Review in the Federal Court Act (Khosa)
Topic
Federal Court
Act
Canada
(Citizenship and
Immigration) v.
Khosa (SCC
2009)
Notes
 statute creates the federal courts (Federal Court of Canada and Federal Court of
Appeal)
 gives the courts authority to do judicial review (procedural and substantive review) in s.
18.1
In Khosa, Binnie J. (writing for the majority) identifies the terms of s. 18.1 as grounds for
review (not standards of review). Rothstein J. (writing in dissent) would find them as
standards of review.
Facts: Khosa was a citizen of India who immigrated at Canada in 1996 (age 14) and
became a permanent resident. In 2002 (age 20), he was found guilty of criminal
negligence causing death in a street racing incident. He received a conditional sentence of
two yeas less a day as the trial judge found his prospects for rehabilitation were good.)
Key Concepts


A removal order was issued based on the conviction. Khosa appealed on humanitarian
and compassionate grounds. The IAD had a discretionary power to grant special relief.
After considering the evidence (incl. Khosa’s testimony before the IAD) and the Ribic
factors (SCC sanctioned these factors to be considered in the exercise of this special
relief), the IAD held that there were insufficient h&c grounds.
Judicial history
 FC: applied patent unreasonableness
SCC reasons:
 Majority (Binnie J.): reasonableness and reasonable
 Concurring in Law; Dissenting in Result: (Fish J.): reasonableness but
unreasonable
 Dissenting in Law and Result (Rothstein J.): correctness based on “standard”
identified in FCA s. 18.1 and correct
Space for
Binnie J.:
Dunsmuir in light
 FCA s. 18.1(4) specify the grounds for review not the standards of review  “may
of the Federal
grant relief” makes it discretionary, which means that the Dunsmuir framework
Court Act?
applies to determine when the intervention is judicially appropriate
 Exception: FCA s.18.1(4)(d) does establish a standard of review “erroneous”,
“perverse or capricious”, “without regard”
 Legislature has the power to specify the standard of review but in this case there
is only an express indication of
Binnie J.’s
What is the
reasons
 existing jurisprudence (FC and FCA) indicates a deferential standard (“nobody said that
it should be correctness”)
 however, completes the second step of Dunsmuir quickly: while no strong privative
clause, there was an exclusive jurisdiction clause; purpose of the IAD was to hear
immigration appeals and accordingly has expertise on this type of question; nature of the
question discretionary decision (highly policy based, highly fact driven, exceptional
remedy)
Privative
clauses
Reasonableness means that the Court cannot intervene simply because the courts would
have reached a different conclusion on reweighing the evidence (i.e. substitute own
decision on what is reasonable in the circumstances)
Rothstein J.
Unless there is a privative clause, there is no reason to exercise deference



Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 68
 privative clause = legislative signal that a) the tribunal has expertise, and b) the
legislature prefers an administrative tribunal to assess these issues
Standard of
Review and the
Federal Court
Act
Range of
reasonable
outcomes
Two-Step
Analysis in
Substantive
Review
Binnie J.
 the mere absence of a privative clause is insufficient to trigger the correctness standard
of review
Rothstein J.
With respective to the Federal Court Act, the court specified the places that it wanted
deference (i.e. the threshold identified in s. 18.1(4)(f) for questions of fact).
 accordingly, the unspecified categories were correctness
Binnie J.
 FCA specifies grounds for judicial review (not standards for judicial review)
 FCA has to create grounds because the federal courts do not have inherent jurisdiction
 legislatures can specify the standard of review but silence is not a specified standard
(contrast with the ATA)
Context: deference owed to IAD given expertise and the breadth of discretion
Binnie J.
 non-interventionist compared to the FCA’s decision (which appears to focus on a
just outcome)
 reviewing court cannot substitute own view of preferable outcome (especially with
broad discretion)
 focus on IAD decision and whether it’s reasonable (as opposed to what is the
reasonable outcome in the case)
 cannot reweigh factors (accusation levelled at Fish J.’s outcome)
 “The decision was entrusted by Parliament to the IAD, not to the judges” (¶62)
Two-step analysis
(1) focus on the reasons (formal understanding)
 Binnie J.: reasons were intelligible
(2) focus on result (range of reasonable outcomes)
 not reweighing evidence/factors



Post-Dunsmuir: Application to Statutory Appeals and “True” Jurisdictional Questions
Topic
Nolan v. Kerry
(SCC 2009)
Smith v. Alliance
Pipeline Ltd.
(SCC 2011)
Notes
Facts: statutory appeal of a decision by the Ontario Financial Services Tribunal, which was
reviewing a decision under the Pension Benefits Act. Legal issue  can the tribunal’s
about ability to award costs.
Applied Dunsmuir without discussion of statutory appeal:
(1) no precedent (no discussion of Dunsmuir categories)
(2) Dunsmuir
 no privative clause (but no reference to appeal provision?!)
 no true jurisdictional question (narrow)
Facts: NEB approval to build pipeline across Smith’s land; pipeline built in 1999; after
Alliance failed to do the reclamation work, Smith completes work and sends them a bill;
Alliance disputes the amount of the bill; arbitration completed and decision reserved;
before judgement rendered, Alliance sought court order to do repair work on pipeline as
Smith was denying access; Alliance requests the initial decision to be held pending the
litigation; Alliance discontinued litigation and agrees to pay some legal costs (approx..
25%); first arbitration committee, however, cannot decide ; second arbitration commenced
and Smith asks for reclamation costs as well as the remaining costs from the litigation;
second arbitration committee grants all costs
National Energy Board Act permits the arbitration committee to grant costs  Alliance
Key Concepts


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 69
argued that costs did not extend to the litigation (accordingly, it was a jurisdictional
question)
Categorization
approach (¶26)
True
jurisdictional
questions
Decision: uphold second arbitration committee
The categorization approach allows the standard of review to frequently be determined at
step one of the analysis (as opposed to consideration of the factors under step two)
Scope of cost provisions are not considered jurisdictional in Smith as well as Nolan,
Northrup Gunman (SCC 2009) and Canada (CHRC) v. Canada (AG) (SCC 2011)
Why? scope of costs is clearly within the statute as the statute invites a consideration of
costs
Interpretations
Generally will be deferential (reasonableness) unless the question is one that invites the
of home statute correctness standard
Outstanding
Is it contrary to the rule of law to allow tribunals to make decisions on a reasonableness
Question Poststandard?
Dunsmuir
 the Court seems to suggest that reasonable decisions are not contrary to the rule of law
 recognition of the multiplicity of the law (according deference for the margin of
appreciation)
Application of
Two step approach:
Reasonableness
(1) quality of the reasons
(2) result within the range of reasonable outcomes
 fairly exhaustive analysis that appeared to encompass the factors considered
in a correctness analysis
 however, concluded that
Alberta
(Information and
Privacy
Commissioner)
v. Alberta
Teachers’ Assn
(SCC 2011)
What happened
to the privative
clause?
Categorization
and the “Home
Statute”
Presumption
Central
Importance to
Deschamps J. dissented in approach: no need to defer unless told to (i.e. privative clause)
Facts: decision of the IPC was made outside the 90 day statutory timeline but the IPC
granted an extension of time *after* the 90 days expired. Did the IPC lose jurisdiction
because the extension was granted after the 90 day timeline?






Decision: decision reasonable  returned to trial court to consider the remaining issues on
judicial review
Focal point for a number of issues on the SCC
 what are questions of central importance to the legal system?
 what are true questions of jurisdiction
 how to decrease arguments at the threshold question of categorization of
deference (i.e. reasonableness vs. correctness)
Assumption (Rothstein J.)  jurisdiction = expertise (¶1)
 contrast with position in Khosa: privative clause as a signal of expertise
Crane: what happened to the private clause? Apparently not significant in current
substantive review (for the moment  law is constantly changing)
Rothstein J. suggests that the way to streamline the process is to presume
reasonableness unless the applicant establishes correctness when the question at issue
involve the tribunal’s interpretation of “the home statute”
 suggested in Dunsmuir, firmed up in subsequent decisions with move away from
privative clauses, etc. (no reference to privative clauses in the majority reasons)
Problem (esp. for Cromwell J.)  how to rebut the presumption (really no different than not
having a presumption if there isn’t clarity on how to “prove” correctness)
 significance beyond the specific regime or issue
 beyond the expertise of the tribunal



Law 301: Administrative Law
the Legal
System
True Questions
of Jurisdiction
G. Morgan (Crane, Fall 2012) | Page 70
Rothstein J.: unable to define these questions; terms cause uncertainty, confusion, delay in
getting to the issue, time and expense “wasted” on SoR determination (¶34)
 eliminate category due to the unnecessary uncertainty that it creates (¶42)
 problem: any question of law can be characterization as jurisdictional (¶42)

Solution: onus on the party alleging true question of jurisdiction to establish that it is such
 problem: how to rebut the presumption of reasonableness with respect to the home
statute?
Cromwell J.’s
dissenting
reasons
Post-Alberta Teachers Assn, true questions of jurisdiction still exist but strong presumption
that
Concerns:
(1) jurisdictional review is what is constitutionalized in Crevier
 how does eliminating true questions of jurisdiction mesh with this authority?
 majority undermines this constitutional authority by giving up these
 threatens to make judicial review an empty shell
 judicial review = balance between legality and legislative supremacy

Rothstein J.’s response: not abandoning ship / packing up tents  lots of stuff will
still be reviewed under correctness (constitutional questions, jurisdictional lines
between admin bodies, questions of central importance to the legal system); even
with true jurisdictional questions, will still review but under the reasonableness
standard; implying that the issue is not abandoning the field but shifting the
standard of review (reasonableness not correctness sufficient in this case)
Cromwell J.: constitutional guarantee is not for reasonableness but for
correctness
(2) presumption for home statute deference is problematic because it undermines the
above constitutional authority
 propose solution: do away with the terminology a bit; court’s should use step 2
of the Dunsmuir approach to determine legislative intent (reasonableness or
correctness)
Post-Dunsmuir: Reasons in Substantive Judicial Review
Topic
Reasons in
Baker
Notes
Recognized for the first time that there was a common law duty to give reasons as matter
of procedural fairness in certain circumstances
 duty is intended to be flexible to accommodate administrative diversity
Key Concepts

Three circumstances that trigger the duty to give reasons for procedural fairness
obligations:
(1) decision has important impact on individual,
(2) where there is a statutory appeal, or
(3) “in other circumstances”
Reasons postBaker
Newfoundland
But (3) was not intended to encompass all administrative decisions  Mavi: reasons not
always required
Some lower courts began as a matter of procedural fairness to consider the adequacy of
the reasons provide – their fullness or comprehensiveness – and there was a divergence
of opinion at the provincial appeal courts whether this “substantive” review was appropriate
in the procedural fairness review
Facts: complaints in a labor arbitration context where the arbiter was interpreting a


Law 301: Administrative Law
and Labrador
Nurses’ Union v.
Newfoundland
and Labradour
(Treasury
Board) (SCC
2011)
Evaluating
reasons at PF
and substantive
JR stages
G. Morgan (Crane, Fall 2012) | Page 71
collective agreement to determine whether casual employees who became full-time
employees could get credit for time spent in casual context for vacation entitlement, etc.
Concern about adequacy of reasons:
 not considered at PF (see below)
 at substantive review, there was still a problem: not all steps were explains
therefore difficult to determine whether the decision reached was a reasonable
outcome
Irony  resolution of the above debate comes in a very concise decision from Abella J.
How to assess reasons:
(1) duty to give reasons as a matter of procedural fairness is a “bare” duty  are
there any reasons? If yes, the PF duty has been met
(2) all questions related to the adequacy or completeness or quality of the reasons
becomes part of the substantive judicial review of the decision
Process of
Two part process in Dunsmuir:
Evaluating
(1) reasons provide sufficient intelligibility, transparency and justification
Reasonableness
(2) decision within range of reasonable outcomes


Accordingly, courts would “bifurcate” the two steps  formal adequacy of reasons +
evaluation of the outcome
(Un)written
Reasons
Abella J.: “a more organic exercise”  court reasons the reasons with the outcome to see
if the reasoned result falls without a range of possible outcomes
If necessary, the court can look beyond the reasons themselves to the wider record of the
evidence and the argument to determine if the decision is reasonsable

Source:
David Dyzenhaus (qtd. at ¶48 in Dunsmuir): deference = “respectful attention to the
reasons offered or which could be offered in support of a decision”
 problem: concern that courts could “re-write” reasons to make them reasonable
Clarification in NLNU:
 “courts should not substitute …” (¶15)
 perfection is not required (¶16)  “A decision-maker is not required to make an
explicit finding on each constitution element, however subordinate”
Alberta
Teachers’ Assn.
on reasons and
reasonableness
Other postDunsmuir case
Application in NLNU: consider collective agreement to interpret reasons
(1) reasonableness = no “spectrum”  there are not variable degrees of deference
(rejecting Binnie J.’s arguments in Dunsmuir and Alberta Teachers’ Assn)
 Rothstein J.: “Each will be governed by the context. But there is no
determination of the intensity of the review with some reviews closer to a
correctness review and others not” (¶47)
(2) where no reasons have been given because there is no duty to give reasons or
because the issue now raised in judicial review was not initially raised before the
administrative decision maker, the court may:
a) consider whether there is a reasonable basis upon which the d/maker could
have decided the issue (¶53)
b) if there is not a reasonable basis, may remit to the adjudicator to provide
reasons (¶55)
c) however, caution to not give parties an opportunity for a second hearing by
their failure to raise an issue at the first hearing (¶55)
Canada (CHRCH) v. Canada [Mowat]  reasonableness standard of review but standard
Driedger approach (bordering on correctness)


Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 72
Post-Dunsmuir: Questions of Central Importance to the Legal System
Topic
Alberta
Teachers’ Assn
Nor-Man
Regional Health
Authority Inc. v.
Manitoba
Association of
Healthcare
Professionals
(SCC 2011)
Canada
(Canadian
Human Rights
Commission) v.
Canada
(Attorney
General) (SCC
2012?) [Mowat]
So, are there
any questions of
central
significance to
the legal
system?
Shaw
Cablesystem
G.P. v. Society
of Composers,
Authors & Music
Publishers of
Canada (SCC
2012)
Notes
Timeline issue was relevant to PIPPA  not relevant to other contexts
 specific and important effect regime  regime best suited to analyze this impact
and to determine the appropriate response within the regime
 within expertise (related to process, impact of duration on parties, impact of
communication with parties)
Facts: arbitration decision in which the arbiter relied on the common law doctrine of
promissory estoppel and whether it prevented the union from complaining in the case (also
an issue of casual employee holiday benefits). Conclusion: promissory estoppel applied
and therefore prevented.
Key Concepts


Decision: trial court found it acceptable; appeal court quashed on grounds of expertise on
promissory estoppel (correctness standard)
SCC  expertise in labour relations context was appropriate and therefore not a question
of central importance
 broad authority granted
 expertise to interpret common law and equitable doctrines
i.e. not enough to be from common law to become a question of central importance to the
legal system
Facts: question about whether the ability to grant compensation for expenses incurred
allowed the tribunal to award costs

Decision: SCC found that the decision was unreasonable (unable to award costs 
legislature’s specify costs if they want tribunals to grant them)
 likely going to be with human rights statutes (reading between
 i.e. the content of anti-discrimination (questions like what does it meant to discriminate,
what does the type of discrimination look like)
Consistently cited decision: City of Toronto v. CUPE (SCC 2003)
Facts: employee was charged with sexual assault of a youth under the employee’s
supervision; court found employee guilty of sexual assault; city terminated employee’s
employment; went to arbitration and arbiter is alleged to “re-litigate” whether the sexual
assault occurred
 issues of res judicata, issue estoppel and
 court found to be a question of central importance to the legal system (i.e. integrity of
the judicial system, respect for the judicial system)
Facts: interpretation of Copyright Board of the Copyright Act was held to be subject to
correctness standard of review because of the unusual statutory scheme under which the
Board and the court may have concurrent first instance jurisdiction on the same legal
questions re: interpretation of the Copyright Act


Why? weird to apply correctness if appeal from a lower court but reasonableness if
decision from Copyright Board; similar to correctness when questions of jurisdiction
between two administrative bodies
Post-Dunsmuir: Standard of Review under the Administrative Tribunal Act (BC)
Topic
ATA s. 58 and
59
Notes
Key Concepts
First question: does s. 58 or s. 59 of the ATA apply?  must be express that s. 58 or s. 59

apply
 SCC got it “wrong” in the Rio Tinto (SCC 2010)
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 73


ATA s. 58 and
59
Shaw Cablesystems (BCCA 2010)  same error at BCCA
clarified in Lavender Co-operative Housing Association  “the ATA only applies
to the extent an enabling act provides” (¶40)
First question: does s. 58 or s. 59 of the ATA apply?  must be express that s. 58 or s. 59
apply
 SCC got it “wrong” in the Rio Tinto (SCC 2010)
 Shaw Cablesystems (BCCA 2010)  same error at BCCA
 clarified in Lavender Co-operative Housing Association  “the ATA only applies
to the extent an enabling act provides” (¶40)
Second question: which standard applies?
 complete code with no gaps  s. 58 or s. 59 provides a complete standard (i.e.
not gaps for the common law)
 patent unreasonably is defined in s. 59(4) and s. 58(3) for discretionary
decisions
 Interpretation of s. 59 is typically straightforward  applies when no privative
clause AND s. 59 is enabled by the home statute
(1) correctness for all questions exception discretion, fact and natural justice/PF
 mixed fact and law is here because the code is complete (Lavender)
(2) no evidence or in light of all evidence the finding is unreasonable to set aside
a finding of fact
(3) patent unreasonableness for discretionary decisions
(4) definition of patent unreasonableness
(5) questions of PF / natural justice = whether the tribunal, in all the
circumstances, acted fairly
 Interpretation of s. 58 has been more problematic  applies if there is a privative
clause AND s. 58 is enabled by the home statute
(1) expert tribunal if privative clause (relative to the courts) + issue over
 problem: raises question of matters which are within the tribunal’s
exclusive jurisdiction (i.e. back into the common law morass)
 definition of “privative clause” in s. 1 of ATA
(2) a) finding of fact or law or exercise of discretion in respect to a matter over
which it has exclusive jurisdiction = patent unreasonableness;
b) questions of PF and natural justice = whether, in all the circumstances,
the tribunal acted fairly;
c) all other matters = correctness
(3) definition of patent unreasonableness
Rio Tinto Alcan
Comments on the ATA were a side issue and
v. Carrier Sekani  however, an example of the confusion that results in respect to whether the ATA applies
Tribal Council
(SCC 2010)
United
Pragmatic and functional approach to determine exclusive jurisdiction
Brotherhood of
Carpenters and
Joiners of
America v.
Labour
Relations Board
(2006 BCCA
364)
Kerton v. WCAT Focus on the language of the privative clause and ask whether the privative clause
(2011 BCCA 7)
“covers” the matters in dispute




Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 74
Judicial Review of Discretionary Decision Making
Introduction
Topic
What is a
discretionary
decision?
Examples of
statutory
discretion
Discretion vs.
law dichotomy
Notes
Discretionary decision making = when legislation bestows a discretion to the decision
maker  providing a choice among various possible courses of action
 implies subjectivity and the exercise of judgement on the part of the decisionmaker
Baker: discretion refers to decisions where the law does not dictate a specific outcome
or where the decision-maker is given a choice of options within a statutorily imposed set of
boundaries
 generally, when the statute provided that the Minister may [take a certain kind of
action] if the Minister is of the opinion that [a certain set of circumstances
Discretion challenges basic principles of the legal and political system  the rule of law,
separation of powers and democratic theory
Key Concepts



Cartier (CB 382): QUOTE
Question: what is the “space in which discretion is exercised”?
(1) “a space controlled by law” [within the realm of law]
(2) “a law unto itself’ [within the realm of politics]  non-justiciable (not really a legal
void but in a sense a gap without law)
Problems in
Judicial Control
of Exercises of
Discretion
QUOTE
Legitimacy concerns
(1) how to supervise/control exercise of discretion to foster the rule of law iwhtout
usurping the decision making function of the statutory
(2) SOMETHING
Necessary but problematic
Discretion decision seens as both necessary and problematic
a) Necessary:
 cannot anticipate all future situations in which a statute is to operate
 cannot take the time needed to be “exhaustive” in settting all the “rules in
the statute
 does not have all the information or the expertise needed to frame all
“rules” at the time of legislating
 SOMETHING
b) Problematic:
 potentially (or even inherently) arbitrary and therefore a threat to the rule
of law
 difficult to control judicial
 challenge the the traditional separation of powers because it seems to
involve “legislative “ SOMETHING
Contextual diversity
Statutory discretion varies vis-à-vis factors such as
 the nature of the decision maker
 scope/breadth of the discretion conferred
 kind of discretionary power conferred

Law 301: Administrative Law
Academic
Criticism
Historical Basis
for Judicial
Review of
Discretion
Traditional
Approach:
Judicial Review
for “Abuse of
Discretion” from
Roncarelli to
Baker
G. Morgan (Crane, Fall 2012) | Page 75
a) discretion in individual cases
b) power to make subordinate legislation (regulations, bylaws, tariffs, orders)
c) power to make general policies to guide governmental decision making (nonbinding)
Cartier pp. 385-88
(1) discretion as arbitrary and contrary to rule of law; realm of lawlessness; use
should be avoided
vs.
(2) discretion as necessary and legitimate instrumentation of modern government
Jurisdiction theory
 discretion must be expercised within the paramaters of legislation intent (i.e. only
as authorized by the enabling statute)
 courts police exercises of discretion to ensure that the discretion is exercised
within the jurisdictional parameters (scope)
 various kinds of “mistakes” in the exercise of a discretionary power (categorized
as “abuses of discretion”) enable the courts to quash a discretionary decision as
outside the decision making authority accorded by the statute
Prior to Baker, judicial review of discretionary decision-making was conducted differently
from judicial review of administrative interpretations of the law (i.e. all cases within the
substantive review sections except Khosa  interpretations of statutory provisions)
 substantive JR of interpretation of law = centered on determination and
application of the appropriate SoR and the problem of when to exercise deference
 JR of discretion = SOMETHING



Traditional grounds for JR of discretion:
(1) “genuine exercise” grounds: courts must ensure that the discretion has been
exercised by those on whom the legislature bestowed the discretion, and not by
others
 relatively infrequent and face-based issues regarding the exercise of discretion
a) rule against sub-delegation (rule at common law is that sub-delegation
must be approved expressly or by necessary implication)
b) rule against “dictation” or “abdication”
c) rule against fettering  decision maker must exercise the discretion in
each individual cases and must not “fetter” discretion by blindly following a
policy
(2) “legality” grounds: courts must ensure that the exercise of discretion (the actual
decision reached) was authorized by the statute that created the discretion
 “proper authorization” concerns
a) the discretionary power was exercised for proper purposes and no for
improper (extraneous) purposes
b) the decision was not based on irrelevant factors or extraneous considerations
c) all relevant considerations were taken into account
d) the discretion was not exercised in bad faith or in an arbitrary or capricious
manner
e) the decision was not so unreasonable that no reasonable decision maker
could possibly have reached it (aka “Wednesbury unreasonableness)
Roncarelli v.
Duplessis (SCC
1959)
SOME STUFF FROM THE POWERPOINT
Facts: Quebec's Liquor Act s.35 provided that the Liquor Commission “may cancel any
permit at its discretion.” Duplessis orders Commission to cancel Roncarelli’s liquor
license and bar him from holding one (motivation was to punish R for activities in
supporting Jehovah’s Witnesses which were seen as seditious); Commission follows

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 76
orders and cancels license; Roncarelli sued Duplessis for abuse of office; Duplessis’
defence was “lawful authority”
Decision: SCC finds for Duplessis and awards significant damages
SCC majority found a clear, gross, intentional abuse of power and an actionable
wrong: exercise of the statutory discretion to cancel a licence could only be used
for the purposes and objectives of the Liquor Act and not for other reasons
[vindication of ROL]
“…there is no such thing as absolute or untrammeled discretion” where an action can be
taken on any ground or for any reason … “Fraud and corruption … may not be mentioned
… but they are always implied as exceptions. "Discretion" necessarily implies good faith in
discharging public duty; there is always a perspective within which a statute is
intended to operate and any clear departure from its lines or objects is just as
objectionable as fraud or corruption”… [emphasis added] per Rand J.
Pre-Baker
Judicial Review
for Legality
SCC majority judgment fits within the traditional conceptions of JR of administrative
discretion for “legality”:
improper purposes
irrelevant considerations
bad faith
d-maker improperly acting under the
dictation of another
determination of proper/improper purposes and relevant/irrelevant considerations
turns on statutory interpretation conducted by the courts
 What are the purposes of the statute, express or implied?
 What are irrelevant considerations, express or implied?
 What factors (relevant considerations) are required to be taken into
account, expressly or impliedly?
Courts would interpret the statute to determine what, in their view, were
proper/improper purposes or relevant/irrelevant considerations. Thus, traditional
approach could potentially allow for relatively intrusive review in some cases
but if d/maker acted for proper purposes, had not considered irrelevant factors, and
had taken into account all the factors that the statute required be taken into
account, courts would not review or interfere with the merits of the decision
(would not “re-weigh” the relevant factors and substitute its own decision on the
ground that it would have weighed the factors differently and reached a different
outcome)
in practice, extent to which courts would intervene varied depending on the nature
and scope of the discretionary power and the nature of the d-maker
e.g. courts exercised great restraint in reviewing broadly worded discretionary
powers vested in ministers or Cabinet that required the d/maker to act “in the public
interest”
some kinds of ministerial or Cabinet decisions would be virtually unreviewable or
non-justiciable because of their highly political and policy-based nature, especially
if the power was not adjudicative
See, e.g. Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106
Maple Lodge Farms, SCC 1982 often cited (referred to in both Baker and Suresh)
as expressing key ideas about JR of discretion pre-Baker

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 77
"It is … a clearly-established rule that the courts should not interfere with the
exercise of a discretion by a statutory authority merely because the court might
have exercised the discretion in a different manner had it been charged with that
responsibility. Where the statutory discretion has been exercised in good faith and,
where required, in accordance with the principles of natural justice, and where
reliance has not been placed upon considerations irrelevant or extraneous to the
statutory purpose, the courts should not interfere.”
New Approach to Discretion: Baker
Topic
Notes
Baker v. Canada Facts: s. 2.1 of the Immigration Regulations provides: “The Minister is hereby authorized to
exempt any person from any regulation made under subsection 114(1) of the Act or
otherwise facilitate the admission of any person where the Minister is satisfied that the
person should be exempted from that regulation or that the person’s admission should be
facilitated, owing to the existence of compassionate or humanitarian considerations.”
Issue: how to apply this provision to Baker (“overstayer” who had four children born in
Canada and was in poor health) Did the IO properly exercise the discretion?)
Key Concepts

Approach to judicial review of discretionary decision making:
 create a more unified system (rejected a rigid dichotomy between JR of
discretionary and non-discretionary decision making)
 adopted the pragmatic and function al approach to the determine the SoR for a
ministerial discretion
 determined appropriate SoR was reasonableness simpliciter because of the
seriousness of what was at stake for Ms Baker
L’Heureux-Dube J. stated this new approach to JR of discretionary decisions would not
reduce the level of deference accorded to highly discretionary decisions, noting in
particular that “deferential standards of review might give substantial leeway to the
discretionary decision-maker in determining the “proper purposes” or “relevant
considerations” involved in making a given determination”
" however, the court then appeared to engage in a re-weighing of the relevant factors in
reaching its conclusion that the discretion had been improperly exercise
Justice L’Heureux-Dube states: “discretion must be exercised in accordance with
the boundaries imposed in the statute, the principles of the rule of law, the
principles of administrative law, the fundamental values of Canadian society, and
the principles of the Charter”
concludes the discretion was not properly exercised in this case because:
“the failure to give serious weight and consideration to the interests of the children
constitutes an unreasonable exercise of the discretion conferred by the section,
notwithstanding the important deference that should be given to the decision of the
immigration officer”
Post-Baker
Questions
(1) How will the Court apply the SOR (once determined) to a discretionary
decision? Three possibilities here:
(i) court applies the SOR to one of the traditional grounds of review i.e. to
assess what is a “proper purpose”; what are “relevant considerations”
(would result in greater leeway for d/maker to decide these questions
than in the traditional approach) OR
(ii) court applies SOR directly to “the merits” of the decision i.e. court would
ask itself whether the decision (per se) was “reasonable” OR

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 78
(iii) both (i) and (ii)
(2) Does the application of the SOR allow the court to re-weigh relevant factors
and substitute its own weighing of the factors for that of the discretionary
decision-maker?
(3) What becomes of the “genuine exercise” aspects of review of discretionary
decision-making? (Are these now merely ways in which a particular
discretionary decision would be found to contravene the SOR that has been
adopted for review of the discretionary decisions?)
Baker and the
Modern
Approach to
Discretion
Two key departures from the traditional approach to discretion:
(1) rejected a rigid dichotomy between JR of discretionary and non-discretionary
decision making
" however, unclear how distinct the two types of decision making area in a postBaker context
(2) adopted the pragmatic and function approach to determining the standard of
review for a ministerial discretion

Application: appropriate SoR in Baker was reasonableness simpliciter because of the
seriousness of what was at stake for Ms. Baker
Post-Baker
Jurisprudence:
Suresh
L’Heureux-Dube J. states: “discretion must be exercised in accordance with the
boundaries imposed in the statute, the principles of the rule of law, the principles of
administrative law, the fundamental values of Canadian society, and the principles of the
Charter”
" concludes that “the discretion was not properly exercised in this case because:
“the failure to give serious weight and consideration to the interests of the children
constitutes an unreasonable exercise of the discretion conferred by the section,
notwithstanding the important deference that should be given to the decision of the
immigration officer”
Suresh (SCC 2002) appears to be a step-back from Baker
(1) using the P&F approach from Pushpanathan to determine the SoR, the SCC
found the appropriate SoR was patent unreasonableness
(2) stressed that a court should not re-weigh the relevant factors or interfere with a
decision on the basis that the court would have reached a different decision
" Baker = a “special situation”
" the Court in Baker had not re-weighed the factors

Facts: removal order based on whether Minister is “of the opinion that the person
constitutes a danger to the security of Canada”
Post-Baker
Jurisprudence:
CUPE v. Ontario
(Minister of
Labour) (SCC
2003)
Application:
 “If the Minister has considered the appropriate factors in conformity with [the
statute’s and the Constitution’s] constraints, the court must uphold [the] decision.
It cannot set aside [the decision] even if it would have weighed the factors
differently and arrived at a different conclusion.”
 “The court may not reweigh the factors considered by the Minister, but may
intervene if the decision is not supported by the evidence or fails to consider
appropriate factors”.
Facts: Minister had statutory authority to appoint arbitrators to chair interest arbitration
panels re: health care disputes. Statute provided that “the Minister shall appoint … a
person who is, in the opinion of the Minister, qualified to act.” Minister appointed four
retired judges to chair arbitration boards. Unions argued that the judges had no
qualifications or expertise in relation to labour relations. The evidence showed that the
minister had not inquired into the experience or expertise of the judges in labour relations
matters but had taken the view that the judges were qualified by virtue of their experience

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 79
as judges.
 n.b. originally discussed in bias as the Minister came from an austerity government and
the government indirectly had a vested interest in the cost of the contracts (as the
government ultimately foots the bill for health care coverage even though the contracts
were between health care workers and institutions)
Decision: (1) unanimous decision that SoR was patent unreasonableness; (2) 6:3 split with
the majority finding that the decision was patently unreasonable
Reasons (Majority):
 case harkens back to R. v. D.  consistent with a traditional approach to review
of discretion
 by failing to consider the labour relations expertise of the retired judges and
their acceptability to the parties (i.e. the labour relations community in which
they would act), the Minister had failed to account for important relevant factors
that the statute implicitly required to be taken into account
 the appointments, in effect, frustrated the objects and purposes of the statute in
which the discretionary power was found
Post-Baker
Jurisprudence:
Dunsmuir
v SOR for discretionary decision-making post-Dunsmuir will be the new
“reasonableness” SOR
§
“reasonableness” SOR is contextual and the fact that a decision is
discretionary is likely to broaden the scope of the range of reasonable outcomes
• the breadth of the discretion and the nature of the d/maker may also be
relevant

Post-Baker
Jurisprudence:
Khosa
The Khosa case suggests the SCC is serious about judicial restraint using the
reasonableness SoR in the context of highly discretionary decision
 case involved a removal order against a permanent resident found guilty of a criminal
offence committed in Canada per IA s. 67(1)(c)

Decision: IAD decision was fine as it considered all of the Ribic factors (i.e. got the law
right)
Binnie J. for the majority found the SOR was “reasonableness” and in applying that
SoR noted:
(1) importance of context of the d/making at issue in assessing the
“reasonableness” of the decision - reasonableness takes its colour from the context
 suggestion here that the breadth and wording of the discretionary power
plays a role in determining whether the decision is “reasonable”
(2) in applying the reasonableness SOR to a discretionary decision the court
cannot substitute its own view of the preferable outcome nor reweigh the evidence
but must ask if the outcome falls within a range of possible acceptable outcomes
that are defensible on the faces and the law
 “Whether we agree with a particular IAD decision or not is beside the point.
The decision was entrusted by Parliament to the IAD, not to the judges”
(3) the reasons given are important in assessing the reasonableness of the
decision
 here the reasons show that the IAB considered all the relevant factors they
were required to consider
(i.e. the Rebic factors that SCC had determined in an earlier case to be the
relevant factors to consider in exercising this discretion)
 weight to be given to these factors is for the IAB to determine and depends
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 80
on the IAD’s assessment of the evidence
Lake v. Canada
(Minister of
Justice) (SCC
2008)
Facts: extradition of a dual (Canadian/American) citizen to face drug charges in US for
cross-border drug trafficking. Lake was tried and convicted in Canada in relation to the
“overlapping” cross-border drug offences.” However, the sentence in Canada was
“reduced” in the expectation that Lake would eventually be extradited to the US to face
charged. After Lake served his Canadian sentence, US sought extradition. L was
committed for extradition by a judge. Minister (with discretion on whether to surrender for
the extradition if there ) decided to surrender him to the US. Lake sought JR of the
ministerial decision.
Extradition Act s. 44(1) criteria provides that the Minister should refuse surrender if he is
satisfied
a. the surrender would be unjust or oppressive having regard to all the relevant
circumstances;
b. the request for extradition is made for the purpose of prosecuting or punishing the
person by reason of their race, religion, nationality, ethnic origin, language, colour,
political opinion, sex, sexual orientation, age, mental or physical disability or
status or that the person’s position may be prejudiced for any of those reasons
Lake’s challenge:
 violated Charter s. 6 rights
" extradition always involves a breach of the Charter (s. 6) with citizens
 error in assessment of the relevant factors (i.e. the pre-determined Controni
factors)
 error in deciding extradition was preferable to prosecuting in Canada
 failure to provide adequate reasons
Minister’s reasons for surrender (factors mostly identified in Cotroni):
 prosecutorial authority considered the American evidence and the Controni
factors and decided prosecution in Canada was not warranted
 surrender would not unjustifiably infringe s. 6 rights
 no jurisdiction to prosecute in Canada
 even if there was jurisdiction in Canada, Canada should yield in this case to the
superior interest of the USA to prosecute there
 lake was not previously prosecuted and sentenced in Canada for the same
offence for which extradition is sought
 no prejudice to fair trial due to delay
 mandatory USA sentence would not “shock the conscience” (Charter s. 7
consideration)
 no overriding personal circumstances justify a refusal to surrender
Issue: what SOR to apply to the Minister’s decision and whether or not it should stand
Held: RSOR applies; Minister’s decision is reasonable – decision stands
minister’s decision falls “at the extreme legislative end of the continuum of administrative
decision-making” and is “largely political in nature”
although the Minister’s discretion is not absolute and “must be exercised in accordance
with the restrictions set out in the Extradition Act, as well as with the Charter” deference is
nevertheless called for in this context
SCC’s general approach in Lake:
1) appears to require that the Minster’s determination of the “relevant factors” be
correct
 i.e. got the law right (see Baker and the Ribic factors)

Law 301: Administrative Law
Montreal v.
Montreal Port
Authority (SCC
2010)
G. Morgan (Crane, Fall 2012) | Page 81
 “…the Minister must, in reaching his decision, apply the correct legal test. The
Minister’s conclusion will not be rational or defensible if he has failed to carry out
the proper analysis” (Lake)
2) affirms that it is for the Minister to determine what weight should be given to the
relevant factors and to balance them (after they have been correctly determined)
 no re-weighing factors in JR (only consider whether the relevant factors were
considered and if the resulting decision was within the range of reasonable
outcomes)
 “The reviewing court’s role is not to re-assess the relevant factors-assess the
relevant factors and substitute its own view. Rather, the court must determine
whether the Minister’s decision falls within a range of reasonable outcomes. To
apply this standard in the extradition context, a court must ask whether the
Minister considered the relevant facts and reached a defensible conclusion based
on those facts” (¶41)
3) emphasizes that the Minister is “more expert than the court” in taking into account
the relevant factors (particularly those related to relationships with foreign states
and treaty fulfillment in that context)
 expertise
4) stresses the breadth of the discretion being exercised in this context as well as its
highly “fact-driven” components
 fact-based decision making
Facts: JR of discretionary decisions made by federal Crown corporations regarding the
appropriate calculation of payments made in lieu of real property taxes. PILTs =
payments in lieu of taxes under the PILT Act. Montreal implemented a new municipal tax
system and asked the Montreal Port Authority (MPA) and CBC to pay PILT at the rate
applicable to non-residential real estate. MPA and CBC refused because the new system
meant significantly higher taxes than before. MPA and CBC asserted that they had
discretion to determine what tax rate they should pay. PILT Act refers to “the opinion of
the Corporation” in relation ot the definitions of “property value” and “effective rate” vis-àvis determing PILTs
Decision: (1) SoR = reasonableness; (2) MPA and CBC decisions were unreasonable
Issue (according to the SCC): whether the rules re: PILTs have been interpreted and
applied properly by the Crown Corporations
Reasons:
 Corporations had not properly understood the scope of their discretionary power
and had exercised their discretion in a way that was contrary to the objects and
purpose of the statute
 i.e. the CCs got the law “wrong” in the eyes of the Court
 the Court appears to have essential applied a correctness SoR vis-à-vis the
proper interpretation of the purpose/objects of the Act and hence the scope of the
statutory discretion
Principles underpinning JR of Discretionary Decisions:
“… in a country founded on the rule of law and in a society governed by principles of
legality, discretion cannot be equated with arbitrariness. While this discretion does of
course exist, it must be exercised within a specific legal framework. Discretionary acts fall
within a normative hierarchy. In the instant cases, an administrative authority applies
regulations that have been made under an enabling statute. The statute and regulations
define the scope of the discretion and the principles governing the exercise of the
discretion, and they make it possible to determine whether it has in fact been exercised
reasonably" (LeBel J. in Montreal)

Law 301: Administrative Law
Summary
G. Morgan (Crane, Fall 2012) | Page 82
(1) JR framework for discretion is the same as for non-discretionary decision making
 trend toward universalism
(2) post-Dunsmuir, the SoR will be reasonableness
(3) the older law re: discretion seems to be incorporated into the current approach to
a significant degree but there is still some uncertainty about whether the
reasonableness SoR applies to the decision maker’s determinations regarding
what are proper/improve purposes and what are relevant/irrelevant factors in the
exercise of discretion
a) leaves significant room for courts to determine the scope of the
discretionary power (proper purposes, relevant/irrelevant considerations
etc.) on what appears to be a correctness SOR and if d/maker « gets the
law wrong » on such issues, the courts can intervene
b) does not allow reviewing courts to « re-weigh » the relevant factors once
those have been properly determined (although presumably could do so
in an egregious case under RSOR)
(4) It is not clear what has become of the highly fact-based grounds for JR based on
« genuine exercise » concerns (subdelegation, dictation, fettering, bad faith) but
they will likely be incorporated more or less intact within the rubric of the RSOR
(5) serious concerns exist re how court should approach administrative discretion that
infringes Charter rights – an example of where the intersection of admin law and
Charter law is of growing importance
 most recent case (not assigned): Doré v. Barreau du Québec (2012 SCC 12)

Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 83
Appendix A: Procedural Fairness Review
General Framework of Procedural Fairness Analysis
Overview
5-step framework to analyse whether procedural fairness obligations were met in
Knight
an administrative decision
Spectrum
Key Concepts
Higher procedural fairness
Lower procedural fairness  contextual analysis
 oral hearing
 written hearing
 limited cross-examination rights
 judicial or quasi-judicial decision
 policy-based decision
 human rights decision
 discretionary decision
 decision affecting personal liberty (Charter)
 early in decision-making process
 decisions about credibility
Step
Details
(1) threshold
Does a duty of fairness at common law apply in the circumstances?
 apply threshold test
(2) defence of
If a duty of fairness applies, is there anything in the statute that modifies or
“statutory
abrogates this duty?
authorization”
n.b. “to abrogate the rules of natural justice, express language or necessary
implication must be found in the statutory instrument” (Kane)
(3) content
If there is a duty and it has not been modified or abrogated, what is the content of
the duty of fairness in the circumstances in the case
 apply Baker 5 factors
(4) factual
Has the duty of fairness been met in the case?
determination
 was the process in this case sufficient to meet of duty of fairness that applies in
all the circumstances?
(5) remedy
If the duty of fairness has not been met, is there any reason that the court would
not provide a remedy?
 judicial review remedies as discretionary
Notes
Details
Contextual analysis Each case will be different and therefore the threshold, content and remedy will be
calibrated to the contextual considerations.
Ex: not every breach of prison rules of procedure will constitute a breach of PF as
the nature of the institution requires emergency disciplinary decision
 “Interference will not be justified in the case of trivial or merely technical
incidents” (Cardinal)
Key Question
 was PF owed?
 is there a statutory
defence?
 what is the content
of PF?
 was the content of
PF satisfied in this
case?
 should a
discretionary
remedy be issued?
Key Concepts
 individualized
assessment based
on context
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G. Morgan (Crane, Fall 2012) | Page 84
Threshold
Overview
Modern articulation of the threshold for procedural fairness:
Baker, Cardinal, Knight,
“This Court has affirmed that there is, as a general common law principle, a duty of Martineau, Nicholson
procedural fairness lying in every public authority making an administrative
decision which is not of a legislative nature and which affects the rights,
privileges and interests of an individual” (Cardinal ¶14)
“The fact that a decision is administrative and affects ‘the rights, privileges or
interests of an individual’ is sufficient to trigger the application of the duty of
fairness” (Baker ¶20)
Historical Context
Key Concepts
Restrictive Approach
 final decisions
“whenever any body of persons, having legal authority to determine questions affecting the rights of
 rights only
subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to
 required duty to act
the controlling jurisdiction of the King’s Bench division…” [the “control” being exercised through the writs of
judicially within
certiorari and prohibition] (Electricity Commissions UKCA 1924)
statute
 if the decision was not a final decision (i.e. not determinative), natural justice did not apply
 if the decision involved only privileges (as opposed to rights), natural justice did not apply
 if no “superadded duty” to act judicially could be found within the
words of the statute, natural justice did not apply
Step
Details
(1) nature of the
a) Types of decision
decision to be made
 acts of a legislative and general nature do not trigger procedural fairness
(Knight)
obligations (Inuit Tapirisat)
 administrative and specific decision making will trigger procedural fairness
b) Timing of decision
 decisions of a preliminary nature will generally not trigger procedural
fairness obligations
 not a determinative issue: typically the question of finally is addressed
at all stages with the different stages suggesting different levels of
procedural fairness (Re Abel, Irvine)
(2) relationship
existing between
the body and the
individual (Knight)
(3) effect of the
decision on the
individual’s rights
(Knight)
Application:
 Knight: decision was “of a final and specific nature”  could raise PF
This factor seems to relate to the context and to the grounds on which the decisionmaker can act and may include any policy reasons why PF should or should not
apply.
 n.b. not significantly discussed element of threshold decisions
Application:
 Knight: office held at pleasure did not preclude PF from attaching to Board
Scope = “rights, privileges or interests”
Spectrum of interests:
 loss of employment or profession militates in favour of higher PF
(Nicholson, Kane, Knight)
 loss of refugee or residency status militates in favour of higher PF (Baker
and Suresh in content analysis)
Application:
 Knight: effect of the decision could raise PF given significance of loss of
employment
Key Concepts
 legislative and
general nature ≠
PF
 administrative and
specific = PF
 preliminary nature
≠ PF
 context and
grounds of
d/maker’s actions
 rights, privileges or
interests
 spectrum of
interests will raise
different PF
obligations
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G. Morgan (Crane, Fall 2012) | Page 85
Content of Procedural Fairness: Baker Factors
Overview




concept of procedural fairness is eminently variable
content must be decided in the context of each case
fairness is entrenched in principles governing the legal system
closeness of the administrative process to the judicial process should
indicate how much of these governing principles should be imported into
the administrative decision making
Policy: Balancing Competing Interests
 rule of law and natural justice
 legislative supremacy and the choice to create
administrative bodies to make decisions
 cost and efficiency
 informal/more accessible procedures that invite
participation
Factor
(1) nature of
decision and the
process followed
(Baker ¶23)
(2) statutory
scheme in which
the decision is
made (Baker ¶24)
(3) importance of
the interest at stake
in the decision
(Baker ¶25)
Details
“The more the process provided for, the function of the tribunal, the nature of the
decision-making body, and the determinations that must be made to reach a
decision”
Considerations:
 discretionary/policy decision
 lower PF: “considerable discretion” and “consideration of multiple factors”
(Baker )
 mixed quasi-judicial and discretionary decision
 neutral PF: nature of decision (serious, evaluation of risk) resembles
judicial proceeding but discretionary (consider future behaviour) (Suresh
¶116)
 quasi-judicial decision
 higher PF
Considerations:
 final and conclusive or preliminary decision?
 final and conclusive decisions will attract greater PF (Baker)
 is there a right of appeal?
 no appeal rights will attract great PF (Baker)
 parity in protections between different provisions of statute (internal
coherence)?
 no procedures at all under s. 53(1)(b) but procedures that “allow for
meaningful participation by the person involved” for s. 40.1 (Suresh ¶117)
“The more important the decision is to the lives of those affected and the greater
its impact on that person or those persons, the more stringent the procedural
protections that will be mandated.” (Baker ¶25)
Lower PF
Less important impact on individual /
others affected by decision
Higher PF
More important impact on individual /
others affected by decision
Application:
 high standard for “the right to continue on one’s profession or
employment” (Kane qtd. in Baker ¶25)
 higher standard given the “exceptional importance to the lives of
Baker, Suresh*
* Charter decision
therefore PF obligation
was determined by
statute (not common law
threshold)
Key Concepts
 rule of law militates
in favour of
increased PF
 however, often
very good reasons
to defer to admin.
body and lower PF
Key Concepts
 spectrum:
discretionary
and/or policybased decisions 
quasi-judicial
decisions
 timing of decision
 appeal rights
 internal coherence
 impact on
individuals’
affected by the
decision
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 86
those with an interest in its result” (Baker ¶31)
 deportation (Suresh ¶118)
(4) legitimate
Legitimate expectations = when the individual has an expectation or interest in the
expectations (Baker decision making either following long-standing practice or upholding a previously
¶26)
made promise
Context: the “circumstances” considered by the courts include “the promises or
regular practices of administrative decision-makers” (Baker ¶26)
Limited: legitimate expectations are part of natural justice / procedural fairness 
do not create substantive rights (Old St. Boniface and Ref re CAP qtd. in Baker
¶26)
(5) procedural
choices available to
the decision maker
(Baker ¶27)
Notes
Non-exhaustive list
Weighing out the
factors
Application:
 Legitimate expectation in a procedure = PF requires that the procedure
will be followed (Qi cited in Baker ¶26)
 Legitimate expectation in an outcome = “may require more extensive
procedural rights than would otherwise be accorded” (Baker ¶26)
n.b. NOT that the outcome will result
The court will show deference to an administrative body’s practices and policies
adopted in light of institutional constraints and mandate
Application
 discretion in statutory provisions will weigh in favour of the decision
maker’s choice of procedures (Suresh ¶119)
 respect for legislative choice to leave the discretionary decision in the
hands of the decision maker
Details
“These principles all help a court determine whether the procedures that were
followed respected the duty of fairness. Other factors may also be important,
particularly when considering aspects of the duty of fairness unrelated to
participatory rights” (Baker ¶28)
High level of PF:
 Khan and Singh: credibility
Medium level of PF:
 Suresh (¶121): procedural protections were not to the extent of an oral
hearing but they were more than what was granted (no quantification of
where the weighing out ended on the spectrum of PF but likely around
75%)
 legitimate
expectation in
procedure =
procedure
 legitimate
expectation in
outcome ≠
outcome (but may
result in greater
PF)
 institutional
constraints
 purpose / mandate
of decision making
body
Key Concepts
 factors specific to
context and rights
engaged
 varying levels of
PF depending on
context
Low level of PF:
 Mavi: discretion with repayment terms (not whether repayment would
take place) meant that minimal procedures were required
Specific Procedural Entitlements
Procedure
Oral Hearing
Disclosure of the
Details
Generally, oral hearings are not required to satisfy procedural fairness (Baker, Re
Webb and Knight)

However, where credibility is at issue and the impact is serious, an oral hearing
is necessary (Khan, Singh)
 Khan (dissent): not a criminal trial; she introduced credibility
Generally, disclosure of all information that will be considered by the decision
Key Concepts
 not required for PF
 required when
credibility at stake
+ serious issue
 generally required
Law 301: Administrative Law
case against
Evidence
G. Morgan (Crane, Fall 2012) | Page 87
maker is necessary to facilitate natural justice processes
 highest level of disclosure on the quasi-judicial end of the spectrum
 some limitations (possibility of redaction) for sensitive information and
confidentiality concerns (Re Abel), and national security concerns (Suresh)
 subsequently obtained information (including clarification) needs to be disclosd
because parties have the right to hear and respond to all evidence against them
(Kane)
Generally, administrative bodies are not bound by court rules of evidence unless
explicitly specified in the statute (n.b. often statutes specify the opposite – i.e. no
rules of evidence)
However, in practise (especially on the high end of quasi-judicial), the rules of
evidence are strongly influential.
 ex: privileged information (esp. solicitor/client) will generally be inadmissible
Cross-examination
Typically, cross-examination rights arise in adversarial processes and when
credibility is at issue. However, more difficult to claim in other processes (i.e.
policy assessment). Generally, cross-examination rights attached in human rights,
credibility and quasi-judicial decision making (higher end processes).
for PF
 minimized by
 statute specifies
whether rules of
evidence are (or
are not) applicable
 higher end decision
making processes
 adversarial
processes
 credibility
Irvine: minimal procedural fairness was required even though witnesses were
testifying under oath and there was a right to counsel (incl. right to ask questions
of client) but no right for counsel to cross-examine other witnesses
 in this context, the SCC found that the denied right to cross-examination was
appropriate given the low impact of the private hearing, the preliminary nature of
the inquiry and the later processes involved full procedural fairness
Cross-references to the Administrative Tribunals Act (applicable if the enabling
statute brings in the ATA):
 ATA s. 40  evidence (relevant, necessary and appropriate to the
administrative tribunal)
 ATA s. 38  cross examination
Specific Procedural Entitlement: Reasons
Overview



General
Framework
Purpose of
Reasons
Concerns about
Reasons
Congregation : duty to give reasons by a municipality (individual impact)
Baker: duty to give reasons (significant impact)
Mavi: no duty to give reasons because no appeal and no significant
impact (“just debt”)
Details
Why do we require reasons? (Baker)
 fosters accountability
 reinforces public confidence
 reduces (the appearance of) capricious decision making
 facilitates appeals [and judicial review] (Suresh: PF could be violated if
the reasons were insufficient for appellate review)
 promotes better decision making
Concerns about the duty to give reasons broadly (i.e. “where judicial review is
possible” = all decisions):
 unduly burdening the process (esp. if requirement for judicial-type
reasons)
 cost effectiveness
Newfoundland and
Labrador Nurses’ Union,
Congregation, Baker,
Mavi
Key Concepts




accountability
legitimacy
better d/making
role in appeal
 costs (time and
financial)
Law 301: Administrative Law
Step
Factors considered
in determining duty
Adequacy of
reasons
Notes
Remedies
G. Morgan (Crane, Fall 2012) | Page 88
Details
Indicators that there is a duty to give reasons (Baker):
 significant impact on the individual;
 statutory right to appeal; OR
 other circumstances
Procedural Fairness:
 whether or not there is a duty to provide reasons is a question of procedural
fairness
 provided that there are some reasons, the reasons will meet the obligation (no
consideration of adequacy or sufficiency under the consideration of procedural
fairness) (Newfoundland and Labrador Nurses’ Union)
Substantive Review:
 adequacy of reasons is considered in substantive judicial review (i.e. merits
based under correctness or reasonableness) (Newfoundland and Labrador
Nurses’ Union)
Details
 insufficient reasons: decision quashed and returned to administrative
body
 however, administrative body may simply issue reasons or a new
hearing may result
Key Concepts
 impact on
individual
 right to appeal
 “other”
 presence at PF
 adequacy at SR
Key Concepts
 discretionary
Delay in Proceedings
Overview
General
Framework
Circumstances
Different than the scope of participatory rights. Generally, the question is when
will delay been seen as so unfair that it results in a stay or an expedited hearing
order?
Details
Blencoe
Key Concepts
Generally, courts recognize two circumstances in which a stay of proceedings may
 significant
be granted: (1) actual prejudice; and (2) delay amounting to abuse of process
prejudice
 both circumstances of significant prejudice
Step
Details
Key Concepts
(1) actual prejudice lost opportunity to make case because the delay did not allow evidence to be
 factual
obtained or witnesses are no longer available
 lost opportunity
 factual
(2) delay amounting Three factors:
 inordinate /
to abuse of process  inordinate/unreasonable delay;
unreasonable
 delay causes serious stress (psychological harm) and/or stigma to reputation;
delay
AND
 delay cause
 is such as to bring the administrative process into disrepute
serious stress
and/or stigma
To determine inordinate/unreasonable delay, the court must consider the overall
 bring administrative
context including the following factors:
process into
e) nature of the case and the various rights at stake
disrepute
f) level of complexity of facts/issues
g) purpose and nature of the proceedings
h) whether the applicant contributed to the delay or waived it
Measurement of the delay excludes
 time that could not change (i.e. the time between the event and the
complaint submitted)
 delays caused by the applicant (including legitimate reasons to extend
the process)
Law 301: Administrative Law
Notes
Remedies
G. Morgan (Crane, Fall 2012) | Page 89
Courts will generally compare to other jurisdictions (Crane: but is it fair if all
jurisdictions are delayed?)
Details
Three discretionary remedies:
 stay of proceedings
 expedited hearing
 costs (Blencoe)
Key Concepts
 discretionary
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 90
Appendix B: Charter Procedural Fairness Obligations
Charter s.7
Right to life, liberty and security of the person
Overview
Two stage analysis (functionally three stages):
(1) is the claimant deprived of a right under s. 7?
(2) is the deprivation inconsistent with a PFJ?
(3) is the decision justified under Charter s. 1?
New Brunswick (Minister
of Health and
Community Services),
Charkaouri, Singh,
Suresh
s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
Overarching
Details
Key Concepts
Considerations
Qualified Right
“The term ‘principles of fundamental justice’ is not a right, but a qualifier of the
 intrinsically
right not to be deprived of life, liberty and security of the person; its function is to
qualified right
set the parameters of that right” (Motor Vehicles ¶62)
“Everyone”
 “everyone” = everyone physically present in Canada (Singh)
 extends to foreign
nationals
Step
Details
Key Concepts
(1) deprivation?
Does the administrative decision deprive (or threaten to deprive) an
 three values: life,
individual of his/her interests in life, liberty and/or security of the person?
liberty and security
of the person
Three Values:
 sufficient causal
(1) Life: life or death; case law suggests capital punishment is likely
connection
unconstitutional
(2) Liberty: freedom from physical restraint (imprisonment, incarceration,
detention) (Charkaouri)
 also some case law around personal autonomy: freedom to make
decisions that are of fundamental importance to the individual (“essential life
choices”) such as decisions about medical treatment for children (Re B as
cited in Blencoe) and decisions about where to reside (Godbout as cited in
Blencoe)
(3) Security of the person: mental, physical and psychological security
(Morgentaler and Rodriguez)
a) psychological integrity: freedom from state action that objectively has a
serious and profound negative impact on psychological integrity (New
Brunswick (Minister of Health and Community Services) and Blencoe)
 objective test: would that state action at issue have a serious and
profound effect on a person of reasonable sensibility? (New Brunswick
(Minister of Health and Community Services))
 stress or anxiety must be greater than ordinary stress or anxiety but
need not reach the level of nervous shock (New Brunswick (Minister of
Health and Community Services))
 level of stress and anxiety typically found where the state action
causes serious distress, stigma and represents a gross intrusion on a
private and intimate sphere (i.e. child protection hearings in New
Brunswick (Minister of Health and Community Services))
 psychological harm must be caused by state action (Blencoe)
b) physical integrity: freedom from state-imposed physical punishment or
suffering, and/or threats of the same (Singh, Suresh)
c) access to health care (Insite, Chaoulli)
Deprivation:
a) deprivation = government action
Law 301: Administrative Law
(2) inconsistent w/
PFJ?
G. Morgan (Crane, Fall 2012) | Page 91
b) sufficient causal connection = : “sufficient causal connection between
[the Canadian] government’s participation and the deprivation [of liberty
and security of the person] ultimately effected” (Khadr)
Is the deprivation inconsistent w/ a PFJ?
Principle of fundamental justice:
 “the principles of fundamental justice are to be found in the basic tenets and
principles, not only of our judicial process, but also of the other components of our
legal system” (Motor Vehicles ¶64) incl. legal principles articulated in Charter ss. 8
– 14
 not necessarily identical to common law PF but the same principles underlie
both (Charkaoui)
 the Baker factors can be employed to calibrate the general level of PF required
for purposes of PFJ (Suresh)
 contextual analysis: the procedures required to meet the demands of PFJ
depend on the context  the question is whether the process is fundamentally
unfair or flawed (Charkaoui)
 a national security context can be taken into account in deciding whether
a process is fundamentally unfair or flawed [for example, a national
security context could mean that the “usual” form of procedures may
have to be modified somewhat or replaced by adequate substitutes but,
ultimately, the process must meet the requirements of the PFJ; if the PFJ
are not respected, any state justification of using procedures that do not
meet the requirements of PFJ must be dealt with under the s.1
“reasonable limits” analysis, and not under s.7; that is, security concerns
cannot be used to excuse procedures that do not conform to PFJ at the
s.7 stage of analysis; such procedures fall to be justified (if they can be)
under s 1 of the Charter]
 not same as
common law but
similar
Application:
Singh: PFJ includes common law PF  person must have an opportunity to (a)
adequately state their case and (b) know the case they must meet; requirements
will vary with context and, for example, PFJ will not always require an oral hearing;
however, oral hearings will be required if credibility is at stake
Charter s.1
Overview
Limitation Analysis
3-part analysis (incl. 3 prong proportionality assessment) to determine whether the New Brunswick (Minister
infringement of the right is justified under Charter s. 1
of Health and
(1) prescribed by law
Community Services);
(2) objective and purpose
Charkaoui; Singh
(3) proportionality
i) rational connection
ii) minimal impairment
iii) balancing prong
s.1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society.
Overarching
Details
Key Concepts
Considerations
Difficult justification The state is faced with attempting to justify procedures that have been found to be
 administrative
contrary to the principles of fundamental justice
inconvenience
 denials of procedural PFJ will be very difficult to justify (New Brunswick
insufficient
(Minister of Health and Community Services); Charkaoui)
 administrative inconvenience will not be enough to justify violation (Singh)
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 92
Appendix C: Substantive Review
Standard of Review Analysis
Overview
General
Framework
Policy
considerations
favouring
reasonableness
Policy
considerations
favouring
correctness
Step
Does a legislative
provision identify
the standard of
review?
Has the
jurisprudence
established the
standard of review
by precedent?
By what standard will a court review a decision of an administrative tribunal and
grant a remedy on the ground that there has been an error on a question of law, a
question of jurisdiction, a question of mixed fact and law, a question of fact or an
abuse of discretionary power?
Details





some questions have a number of possible reasonable outcomes
tribunals should have a “margin of appreciation” within the range of
acceptable and rationale solutions
expertise of tribunals
rule of law
supervisory jurisdiction of courts: ensure that authority is exercised within
the limits proscribed by the legislature (Crevier)
promote justice
avoid inconsistency or authorized applications of law


Details
Administrative Tribunals Act (if made applicable by the administrative body’s
enabling statute)
 s. 58: standards of review for acts without privative clauses
 s. 59: standards of review for acts without privative clauses
n.b. ATA s. 58 and s. 59, if applicable, are complete codes (Lavendar Co-Op)
Federal Courts Act
 s. 18.1(4)(d): question of fact = “made in a perverse or capricious manner
or without regard for the material before [the d/maker]” (Khosa)
Question: whether the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question

If yes, no requirement to “reinvent the wheel”
 problem: what does it mean to be determined by the prior jurisprudence?
unclear in Dunsmuir; see Khosa
Dunsmuir, Khosa, Smith,
Alberta Teachers’s Assn
Key Concepts
 multiple reasonable
outcomes
 expertise
 rule of law
 constitutional
obligation to
supervise
 consistency
Key Concepts
 ATA, if applicable =
complete code
 FCA = standard for
q of fact
 determined by
precedent?
If it does not, apply the “standard of review analysis” to de
 slightly restated pragmatic and functional analysis but streamlined to be more
efficient
Standard of review
analysis
Home statute presumption
presume reasonableness unless the applicant establishes correctness when the
question at issue involve the tribunal’s interpretation of “the home statute” (Alberta
Teachers’ Assn)
 problem: how to rebut presumption? (Cromwell J.)
The new standard of review analysis is contextual and considers the following
factors:
(5) the presence or absence of a privative clause
(6) the purpose of the tribunal as determine by interpretation of enabling
legislation
 factors favouring deference: efficient (timely and cost-effective)
dispute resolution process (Dunsmuir)
(7) the nature of the question at issue
 contextual
 streamlined
pragmatic and
functional
approach
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 93
 factor favouring deference: interpretation of home statute or closely
related laws (Dunsmuir); discretionary and policy-based decisions
(Khosa)
(8) the expertise of the tribunal
 field expertise (Ryan)
n.b. overview/broad analysis as opposed to a painstaking factor-by-factor review
in pragmatic and functional approach post-Pushpanathan
Notes
Factors suggesting
reasonableness
(¶55)
Categories
suggesting
reasonableness
(¶53)
Categories
suggesting
correctness
Continuing issue: unclear how often it will be used post-Dunsmuir; Alberta
Teachers’ Assn. suggests that it will be used rarely
Details
(4) privative clause
(5) discrete and special administrative regime in which the decision maker
has special expertise
(6) the nature of the question of law
 questions of fact
 questions of discretion
 questions of policy
 questions of mixed law and fact  whether the legal issues cannot be
easily separated from the factual issues; see Deschamps J. on this
matter
(5) constitutional questions (¶58)
(6) TRUE questions of jurisdiction or vires (¶59)
(7) questions of general law that are of “central importance to the legal
system and are outside the tribunal’s area of specialized expertise” (¶60)
 ex: CUPE v. Toronto, which addressed common law rules regarding
res judicata and abuse of process
 “Because of their impact on the administration of justice as a whole,
such questions require uniform and consistent answers” (¶60)
 BUT: criticism in Binnie J.’s reasons (essentially, what are these
questions?)
(8) questions of jurisdictional lines between two specialized tribunals (¶61)
Key Concepts
 privative clause
 expertise
 nature of the q
 questions of law
 discretionary and
policy based
questions
 questions of mixed
fact and law
 constitutional q’s
 true q’s of
jurisdiction
 q’s of central
importance to the
legal system and
outside the
tribunal’s area of
expertise
 q’s of jurisdiction
btw tribunals
Reasonableness Analysis
Overview
Deferential standard by which courts assess the substantive merits of an
administrative decision
General
Framework
Policy
considerations
favouring
reasonableness
Bifurcation
Details
Contextual analysis


some questions have a number of possible reasonable outcomes
tribunals should have a “margin of appreciation” within the range of
acceptable and rationale solutions
 expertise of tribunals
Abella J.: “a more organic exercise” (Newfoundland and Labrador Nurses’ Union)
 court reasons the reasons with the outcome to see if the reasoned result falls
without a range of possible outcomes (Newfoundland and Labrador Nurses’
Union)
But no “spectrum”: there are not variable degrees of deference (rejecting Binnie
J.’s arguments in Dunsmuir and Alberta Teachers’ Assn)
 Rothstein J.: “Each will be governed by the context. But there is no
determination of the intensity of the review with some reviews closer to a
Dunsmuir, Khosa,
Newfoundland and
Labrador Nurses’ Union,
Alberta Teachers’ Assn
Key Concepts
 multiple reasonable
outcomes
 expertise
 organic exercise
 no spectrum
Law 301: Administrative Law
Step
(1) reasons
G. Morgan (Crane, Fall 2012) | Page 94
correctness review and others not” (Alberta Teacher’s Assn ¶47)
Details
“in judicial review, a court is concerned mostly with the existence of justification,
transparency and intelligibility within the decision making process” (¶47)
 where there is a duty to give reasons (Baker)
 adequacy of reasons considers completeness (Newfoundland and
Labrador Nurses’ Union)
 perfection is not required: “A decision-maker is not required to make an
explicit finding on each constitution element, however subordinate”
(Newfoundland and Labrador Nurses’ Union ¶16)
Key Concepts
 justification
 transparency
 intelligibility
Unwritten reasons (Dyzenhaus qtd. in Dunsmuir ¶48):
deference = “respectful attention to the reasons offered or which could be
offered in support of a decision”

BUT: “courts should not substitute their own reasons, but they may, if they find it
necessary, look to the record for the purpose of assessing the reasonableness of
the outcome” (Newfoundland and Labrador Nurses’ Union ¶15)
 read in context of material before adjudicator (i.e. collective agreement)
(Newfoundland and Labrador Nurses’ Union)
(2) outcomes
Where no reasons have been given because the issue now raised in judicial
review was not initially raised before the administrative decision maker, the court
considers whether there is a reasonable basis upon which the d/maker could have
decided the issue (Alberta Teachers’ Assn ¶53)
d) if there is a reasonable basis, the court should not interference (¶53)
e) if there is not a reasonable basis, may remit to the adjudicator to
provide reasons (¶55)
 however, caution to not give parties an opportunity for a second hearing by
their failure to raise an issue at the first hearing (Alberta Teachers’ Assn ¶55)
“where the decision falls within a range of possible acceptable outcomes
which are defensible in respect of the facts and the law” (¶47)
 Khosa: not substituting own decision of what is “right” but rather whether
the reached decision was reasonable
 Dunsmuir: esp. with expertise, grant a margin of appreciation
 defensible outcome
 range of possible
acceptable
outcomes
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 95
Index of Cases
I. Introduction to Administrative Law
Case
Ct./Yr.
Short Description
Crevier v. Quebec (AG)
Baker v. Canada (Immigration)
SCC 1981
SCC 1999
Pro. tribunals. Judicial review of jurisdiction (scope of statute) is constitutional protected.
H&C grounds under IA. No oral hearing. PF? Written hearing sufficient in light of Baker factors.
Source
CLDB
CLDB
II. Procedural Review
Common Law Procedural Fairness: When does it apply?
Case
Ct./Yr.
Short Description
Nicholson v. Haldimand-Norfolk
Police Commissioners
Cardinal v. Kent Institution
Knight v. Indian Head School
Division No. 19
SCC 1979
PO discharged after 15 months service w/ no reasons and no hearing. Regs. provided hearing if
PO for +18 months. Req’d duty of fairness in the circumstances  reasons + opp. to respond.
Prisoners. Kept in solitary against Rev. Bd. rec. PF owed  notice of decision + opp. to respond.
School Bd. employee. Constructive dismissal. Threshold = (1) nature of decision; (2) relationship
btwn body & individual; (3) effect on rights. Minimal PF  reasons + opp. to respond.
SCC 1985
SCC 1990
Source
CLDB
CLDB
Moodle
Common Law Procedural Fairness: Threshold, Limitations and Exceptions
Case
Ct./Yr.
Short Description
Threshold Test: “Rights, Privileges and Interests”
Re Webb
ONCA 1978 Eviction. No statutory right to subsidized housing but owed +PF b/c receiving benefit. Min. content.
Limitations and Exceptions: Non-Final Decision-Making
Re Abel
ON Div. Ct. NCRMD patient. (1) report sent to ARB. (2) ARB makes rec. to LG. (3) LG decides release. No
1979
disclosure of report. PF attaches to non-final decision: proximity to decision + exposure to harm.
Irvine v. Canada (Restrictive Trade SCC 1987
Combines IA. (1) HO holds hearing + info sent to RTPC for +investigation. (2) RTPC reviews w/
Practises Commission)
opt. for 2nd hearing. (3) Min. receives report. Min. PF at (1) b/c private hearing + no recs.
Limitations and Exceptions: “Legislative and General Decision-Making”
Canada v. Inuit Tapirisat
SCC 1980
Standing in CRTC application to increase tel. rates. No PF hearing oblig. to Cabinet petition.
Homex Realty v. Wyoming
SCC 1980
Dispute over services for sub-division. Municipality passes bylaw obliging co. to pay. Bylaw subject
(Village)
to PF hearing obligations b/c purely admin. decision (specific) despite leg. form (bylaw).
Congrégation des témoins de
SCC 2004
Site for place of worship. Denied rezoning of residential property w/reasons. Denied rezoning of
Jéhovah v. Lafontaine Village
commercial property 2x w/o sig. reasons. PF attached b/c individual rights, privileges & interests.
Canadian Assoc. of Regulated
FCA 1993
Quota for importing hatching eggs imposed by Min. Previously no regulation. No PF b/c legislative
Importers v. Canada (AG)
and general decision based on broad policy considerations. No requirement for notice or hearing.
Extending Fairness Obligations Through the “Legitimate Expectations” Doctrine
Ref re Canada Assistance Plan
SCC 1991
Prov. had legitimate exp. of consultation on cost sharing CAP? No b/c cannot fetter Cab./leg.
Baker v Canada (Immigration)
SCC 1999
Leg. exp. from Convention? Leg. exp. in procedure = procedure. Leg. exp. in outcome = + PF.
Mt Sinai Hospital v. Quebec
SCC 2001
Long term care  both l/term + short term. Agree to move to Montreal but ask permit change to
reflect both services. No change. Maj. = discretionary decision. Binnie = leg. exp.
Canada (AG) v. Mavi
SCC 2011
Undertaking for immigration sponsor. Leg. exp. of PF b/c undertaking indicated discretion in
enforcement of undertaking.
Source
Moodle
Moodle
Moodle
CLDB
CLDB
CLDB
Moodle
CLDB
CLBD
Moodle
CLDB
Procedural Fairness: Content and Choice of Procedures
Case
Ct./Yr.
Baker Factors
Baker v. Canada (Immigration)
SCC 1999
Specific Content Issues: Oral or Written Hearings?
Khan v. University of Ottawa
ONCA 1997
Short Description
Source
H&C grounds under IA. Content of PF = 5 factors that are non-exhaustive. Sufficient PF (minimal).
CLDB
Student writes exam, fails, and alleges that there was a forth exam booklet that was not graded.
Potential employment is a significant interest and oral hearing requires when credibility is an issue
Specific Content Issues: Disclosure of “the Cast Against” (Right to a Decision “On the Record”)
Kane v. Board of Governors of
SCC 1980
Prof misuses resources, suspended for 3 months, appeals, board reviews case over dinner, Prof
UBC
leaves, Pres questioned, Breach of PF as no chance to hear full case against or respond
Re Abel
ON Div. Ct. Obligation to disclose the report to allow for meaningful participation. Circumstances in which no
1979
disclosure may be req’d: larger context of interests (national security, privacy, health/well-being)
Specific Content Issues: Delay in Proceedings
Blencoe v. BC (Human Rights
SCC 2000
NDP Cabinet Minister accused of sexual harassment amid intense media scrutiny. HRT
Commission)
investigation started; Blencoe alleges prejudicial delay (test) and s 7. Neither found
Specific Content Issues: Duty to Give Reasons
Baker v. Canada (Immigration)
SCC 1999
There was a duty to give reasons. The informal notes of the officer were sufficient to satisfy duty.
Newfoundland and Labrador
SCC 2011
Credit casual time when now f/t employee? No consideration of adequacy of reasons at PF stage
Nurses’ Union
(only content in substantive review.)
Canada (AG) v. Mavi
SCC 2011
Undertaking for immigration sponsor. No reasons b/c not judicial and no appeal.
Moodle
Moodle
Moodle
Moodle
CLDB
CLDB
CLDB
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 96
Constitutional and Quasi-Constitutional Procedural Protections
Case
Ct./Yr.
Short Description
Source
Authorson v. Canada (AG)
Singh v. Canada (Immigration)
N.B. (Minister of Health and
Community Services) v. J.G.
Suresh v. Canada (Immigration)
SCC 2003
SCC 1985
SCC 1999
Moodle
Moodle
Moodle
Charkaoui v. Canada (Immigration)
SCC 2007
Disabled war veteran. Const. guarantee for legislative supremacy not due process in this case.
Statutory PF exhaustive. Oral req’d due to credibility. Split  maj. = Charter s. 7; rest BoR s. 2(e)
Legal aid w/ custody. Entitled to funded counsel. Security of person incl. psychological integrity.
Causal connection between decision & interference.
Removal order under IA b/c security risk. Violates s. 7 b/c substantial risk of torture (but may be
circ. where risk not a violation). Content = application of Baker factors. Disclosure + reasons.
Certificates + detention reviewed by FC. Serious deprivation of liberty = fair “judicial” process.
Problems w/ disclosure and decision based on facts & law (no adversarial or inquisitorial process.)
Case
Ct./Yr.
Short Description
Harlekin v. University of Regina
Taiga Works v. British Columbia
Canadian Pacific v. Matsqui Indian
Band
N.B. (Minister of Health and
Community Services) v. J.G.
Homex Realty v. Wyoming
(Village)
SCC 1979
BCCA 2010
SCC 1995
Expulsion. No PF at 1st appeal. JR before 2nd appeal. 2nd appeal = AAR.
Appellate body can “cure” PF breaches.
Band internal appeal body for tax decisions on reserve. AAR was inadequate: 3 b/c it wasn’t an
AAR and 2 b/c the AAR was insufficiently independent (see below).
Legal aid w/ custody. Mootness b/c would often be moot by the time it reached SCC, significant
and broad issue (precedent applicable), and appropriate adversarial context.
Dispute over services for sub-division. No remedy b/c Homex was inconsistent, attempted to shirk
responsibility (checkerboarded the land to avoid repercussions of bylaw).
Case
Ct./Yr.
SCC 2002
CLDB
CLDB
Selected Remedial Issues
SCC 1999
SCC 1980
Source
CLDB
CLDB
CLDB
Moodle
CLDB
Procedural Fairness’ Second Limb: The Rule Against Bias
Short Description
General Principles and the Basic Test for the Rule Against Bias
Baker v. Canada (Immigration)
SCC 1999
Junior officer used caps lock and descriptions that certainly appeared biased
R. v. S. (R.D.)
SCC 1997
Judge criticized for noting her real-life experience of racist conduct on behalf of police
Imperial Oil v. Quebec
SCC 2003
Minister ordered polluters to pay for damages and has interest. NO RAB: context of public interest.
(Environment)
Prior to getting to SCC it is also indicated that even if RAB possible statutory defenses.
Individual Bias Issues: Pecuniary or Other Material Interest in the Outcome
Moskalyk-Walters v. Ontario
ON Div Ct
Pharmacist discipline. Committee involved only other pharmacist in small town. Indirect pecuniary
(College of Pharmacy)
1975
interest. Indirect (not direct) pecuniary interest therefore bias.
Pearlman v. Manitoba Law Society SCC 1991
Lawyer discipline. No indirect pecuniary interest: too remote and too miniscule. No bias.
Canadian Pacific v. Matsqui Indian
SCC 1995
Band internal appeal body for tax decisions on reserve. Band members Split 4:2 with majority not
Band
finding an indirect pecuniary interest. No bias as Matsqui people are the public.
Imperial Oil v. Quebec
SCC 2003
Minister ordered polluters to pay for damages and has interest. NO RAB: context of public interest
Energy Probe v. Atomic Energy
FCA 1985
Reg. d/maker owned shares in a co. that might benefit from the reg. decision. No pecuniary
Control Board
interest. Likely direct pecuniary interest if *would* benefit. No bias.
Individual Bias Issues: Personal or Business Relationships with Parties in the Dispute
Bennett and Doman v. British
BCCA 1993 Doman investigated for insider trading. Part of investigating board was competitor. YES RAB.
Columbia
Marques v. Dylex
ON Div. Ct. Lawyer who used to work for a firm that represented a union was now adjudicating a case where
1977
the union was present. NO RAB. Lawyer didn’t work on this case & not worked for firm for 1 year
Individual Bias Issues: Prior Knowledge or Involvement of Decision-Maker at Earlier Stages
Committee for Justice and Liberty
SCC 1978
Crow was part of study group pro-pipeline. Was later on committee to decide pipeline. YES RAB.
v. Canada (NEB)
Wewaykum Indian Band v. Canada SCC 2003
2 bands disputing over the same area of land. Binnie was Minister at time of original claim. 20
years l8r when at SCC, Binnie at SCC. Does Binnie RAB? NO. Judges independent, long ago, etc
Brosseau v. Alberta (Securities
SCC 1989
Brosseau directed investigation take place. Knew about investigation. Then decides to chair same
Commission)
meeting. There is a RAB ... but there is a statutory authorization.
British Columbia Nurses’ Union v.
BCCA 1997 Baby-shaking nurse. PF violated first time. Arbitrator heard case 1st & 2nd time. YES RAB.
British Columbia’s Women’s
Hospital
2747-3174 Quebec Inc. v. Quebec
SCC 1996
Same lawyer should not be advising on investigations, pre-hearing issues, issues at hearing +
(Regie des permis d’alcool)
policy writing
Individual Bias Issues: Attitudinal Predisposition (Pre-Judgement)
Baker v. Canada (Immigration)
SCC 1999
Jr. Officer had attitudinal bias against persons with many children, mental illness, etc
Gale v. Miracle Food Mart
ON Div. Ct. Adjudicator had an issue of the same nature that she was a complainant. Adjudicator was also
1993
expert in area (systemic discrimination.) YES RAB b/c complaint was still on books.
British Columbia Nurses’ Union v.
BCCA 1997 Baby-shaking nurse. PF violated first time. Arbitrator heard case again. YES RAB.
British Columbia’s Women’s
Hospital
Old St. Boniface Residents Assn.
SCC 1990
Big condo. Pro-development councillor announces support early on. Bias is permitted for a city
v. Winnipeg
councillor, but must not have a closed-mind. We value bias for government; not judicial decisions
Source
CLDB
Moodle
Moodle
Moodle
Moodle
CLDB
CB 259
Moodle
CB 263
Moodle
Moodle
Moodle
-----
CLDB
Moodle
--CLDB
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 97
Save Richmond Farmland Society
SCC 1990
Councillor runs on platform of re-zoning (no financial interest). Councillor was extremely and
v. Richmond
obviously biased. But NO RAB. No RAB so long as willing to listen/open to persuasion.
Newfoundland Telephone Co. v.
SCC 1992
Nutty councillor was baking biased comments both before the hearing an during the hearing. Less
Newfoundland
strict standard for pre-hearing bias but stricter standard once hearing starts. YES RAB.
Statutory Authorization Defence and the Use of Rights Documents to Override the Defence
Brosseau v. Alberta (Securities
SCC 1989
Brosseau directed investigation take place. Then decides to chair same meeting. There is a RAB
Commission)
but there is a statutory authorization.
CUPE v. Ontario (Labour)
SCC 2003
Ministerial appointment of arbitrator for wage settlement. Yes RAB ... BUT statutory authorization
MacBain v. Canada (Human Rights FCA 1985
Human rights complaint about the Naming Act. Human rights tribunal both prosecutes AND
Commission)
appoints adjudicator. This is permitted by statute BUT violates 2(e) of Bill-o-rights. YES RAB.
CLDB
CLDB
Moodle
Moodle
Moodle
Procedural Fairness & Tribunal Independence
Case
Ct./Yr.
Short Description
IWA v. Consolidates-Bathurst
Tremblay v. Quebec
Canadian Pacific v. Matsqui Indian
Band
Valente v. the Queen
2747-3174 Quebec Inc. v. Quebec
(Regie des permis d’alcool)
Katz v. Vancouver Stock Ex.
2747-3174 Quebec Inc. v. Quebec
(Regie des permis d’alcool)
Ocean Port Hotel v. BC
SCC 1990
SCC 1992
SCC 1995
The difficulties in the quest for consistency by the decision maker vs. demand for adjudicative
independence. SCC decisions on “institutionalized” d/making.
SCC 1985
SCC 1996
SCC 1996
SCC 1996
SCC 2001
Band internal appeal body for tax decisions on reserve. To determine if tribunal was independent,
must give a chance to show if they can. “wait and see approach”
Provincial Courts are to be Judicial Independent like their Superior Court Pals
Quebec Charter guarantees full hearing in front of an impartial decision maker. Legal counsel coult
investigate, prosecute and give advice on judgment. YES RAB.
Considered operational reality of the scheme (beyond bylaws) to consider Valente criteria.
Suspension of liquor license for selling to minors, liquor appeal board upheld. Appeal board
members appointed at pleasure. Here statutory authorization ... thus no problem.
Liquor license suspended wk/end. Absent a constitutional/Charter infringement, statute prevails !
Source
--CLDB
------CLDB
III. Substantive Review
Historical Development of the Standard of Review
Case
Ct./Yr.
Short Description
The CUPE Blockbuster and the Rationale for Judicial Deference
CUPE v. New Brunswick Liquor
SCC 1979
Employer replaces employees with manager. Labour relations interprets broadly. Court accepts.
National Corn Growers Assn. v.
SCC 1990
Moving from a Dicey-ROL to a functionalism: “[courts] may not be as well qualified as a given
Canada (Import Tribunal)
agency to provide interpretations of that agency's constitutive statute” (Wilson J)
Origins of the “Pragmatic and Functional” Approach
UES Local 298 v. Bibeault
SCC 1998
Should sub-contractor get benefits of predecessor? P&F approach is born. Decision quashed.
Beyond Privative Clauses: Extension of Judicial Deference to Statutory Appeals
Law Society of New Brunswick v.
2003 SCC
Lawyer was telling clients they had won a decision when they hadn’t. Disciplinary committee
Ryan
disbarred the lawyer. SOR was reasonableness simpliciter. SCC found decision = reasonable
Canada (Director of Competition)
SCC 1997
Guy acquires multiple newspapers. Charged with anti-competition. Deference applied, even to
v. Southam Inc.
pure questions of law. SCC is deferential. Created Reasonableness Simpliciter
Pragmatic and Functional Redux
Pushpanathan v. Canada
SCC 1998
Refugee claimant who deals heroin part time & got caught with $10 million in narcotics.4 factors
(Immigration)
provided for P&F approach
Law Society of New Brunswick v.
SCC 2003
Lawyer was telling clients they had won a decision when they hadn’t. Disciplinary committee
Ryan
disbarred the lawyer. SOR was reasonableness simpliciter. SCC found decision = reasonable
Critiques of Standard of Review Jurisprudence
Toronto (City) v. CUPE, Local 79
SCC 2011
Guy fired for sexual assault. Attempts, after crim conviction, to dispute whether he did it in an
employment inquiry. Court says no, BRD already a high standard. LeBel upset about many SOR
Source
CLDB
Moodle
Moodle
Class
notes
Moodle
CLDB
Class
notes
Moodle
Dunsmuir and Its Aftermath
Case
Ct./Yr.
Short Description
Dunsmuir v. New Brunswick
2008 SCC
Dunsmuir grieved his being terminated. P&F no longer a must, now there are 2 approaches.
Post-Dunsmuir Developments: Substantive Review under the Federal Courts Act
Canada (Immigration) v. Khosa
SCC 2009
Judicial Review under FCA. Dunsmuir used to “fill the gap” of what the SOR ought to be
Post-Dunsmuir Developments: Identifying True Jurisdiction Questions post-Dunsmuir
Smith v. Alliance Pipeline
SCC 2011
Arbitrator gave costs to farmer. SCC says reasonable. Home statute key in determining SOR.
Alberta v. Alberta Teachers’ Assn
SCC 2011
Privacy violated Was extension permitted Presumption seems evident for Home Statute =
reasonableness SOR.
Newfoundland and Labrador
SCC 2011
Credit casual time when now f/t employee? Less-than-stellar reasons but sufficient if read reasons
Nurses’ Union
in context (i.e. in light of collective agreement.)
Nor-Man Regional Health Authority 2011 SCC
Arbitrator deals with common-law estoppels in labour relations decision. SCC found this decision =
Inc. v. Manitoba Assoc.
reasonable as promissory estoppel was not an issue of central importance
Canada (CHRC) v. Canada (AG)
SCC 2011
Tribunal awarded costs (interpreted as an expense). Reasonableness standard applied, SCC
[Mowat]
found tribunal was unreasonable.
Source
Moodle
Moodle
CLDB
CLDB
CLDB
-----
Law 301: Administrative Law
G. Morgan (Crane, Fall 2012) | Page 98
Shaw Cablesystems GP v. Society 2011 SCC
Standard of review for Copyright Act was held to “correctness” standard as court’s jurisdiction on
of Composers ...
certain legal questions might overlap with tribunal
Post-Dunsmuir Developments: Using Precedent to Determine the Standard of Review post-Dunsmuir
Smith v. Alliance Pipeline
SCC 2011
Arbitrator gave costs to farmer. SCC says reasonable. Home statute key in determining SOR.
Legislated Standards of Review (BC’s Administrative Tribunals Act)
Lavender Cooperative Housing
BCCA 2011 ATA only applies if in enabling statute. ATA s. 58 and 59 are complete standards (no CL).
Assn. v. Ford
---
CLDB
Moodle
Discretionary Decision-making
Case
Ct./Yr.
Short Description
Roncarelli v. Duplessis
Baker v. Canada (Immigration)
Sureseh v. Canada (Immigration)
CUPE v. Ontario (Labour)
Canada (Immigration) v. Khosa
Lake v Canada (Minister of Justice)
SCC 1959
SCC 1999
SCC 2002
SCC 2003
SCC 2009
SCC 2008
Montreal (City) v. Montreal Port
Authority
SCC 2010
Duplessis cancelled Roncarelli’s liquor license – court found clear abuse of discretion.
H&C grounds under IA. P&F approach to determine SoR. SoR r. simpliciter. Not reasonable.
Reject refugee claim under IA b/c security risk. Consider but do not reweigh factors.
Min. appoints judges to labour boards. SoR PU. Decision PU (did not consider qualifications)
Removal under IA of street racer. SoR reasonableness. Decision = reasonable (margin of apprec.)
Extradition of dual citizen. Approach: (1) right process (“get the law right”); (2) no reweighing
factors; (3) consider d/maker’s expertise; (4) fact-based d/making.
Payments in lieu of taxes for federal Crown corporations. SoR = reasonableness. Decisions =
unreasonable b/c discretion exercised contrary to purpose of statute. Discretion ≠ arbitrariness.
Source
CLDB
CLDB
CLDB
--CLDB
--CLDB