Table of Contents
INTRODUCTION: THE ADMINISTRATIVE STATE
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INTRODUCTION: WHAT IS ADMINISTRATIVE LAW?
BAKER V. CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION [1999 SCC]
THE BAKER FRAMEWORK:
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PROCEDURAL FAIRNESS: THE COMMON LAW DOCTRINE (THRESHOLDS)
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APPROACH TO A PROCEDURAL FAIRNESS PROBLEM
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PROCEDURAL FAIRNESS: COMMON LAW DOCTRINE
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COOPER V BOARD OF WORKS FOR WANDSWORTH DISTRICT (ENG CP, 1863)
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NICHOLSON V. HALDIMAND-NORFOLK POLICE [1979 SCC]
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THE APPROPRIATE ANALYTICAL APPROACH
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PROCEDURAL FAIRNESS AND CONSTITUIONAL LAW: WHEN TO USE THE CHARTER OVER COMMON LAW
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PROCEDURAL FAIRNESS: CONTEXT & THRESHOLD QUESTIONS
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DISTINCTIONS & CLASSIFICATIONS OF THE NATURE OF THE DECISION: EVOLUTION
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MODERN THRESHOLD CONSIDERATIONS
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CANADA (AG) V. INUIT TAPIRISAT OF CANADA (1980 SCC)
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CABINET DECISIONS:
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HOMEX REALTY AND DEVELOPMENT V WYOMING (VILLAGE) (SCC, 1980)
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CANADIAN ASSOCIATION OF REGULATED IMPORTERS V CANADA (FCA, 1993)
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RE WEBB AND ONTARIO HOUSING CORPORATION (ONCA, 1978)
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RE ABEL AND ADVISORY REVIEW BOARD (ONCA, 1979)
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DAIRY PRODUCERS’ COOPERATIVE V SASKATCHEWAN (HUMAN RIGHTS COMMISSION) (SASK QB, 1994) – CONTRAST TO ABEL
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PROCEDURAL FAIRNESS: INTERACTION WITH CONSTITUTIONAL LAW
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CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PROCEDURE
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KEY DIFFERENCES BETWEEN THE BILL OF RIGHTS AND THE CHARTER:
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THE BILL OF RIGHTS
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THE CHARTER
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UNDER WHAT CIRCUMSTANCES WILL YOU RESORT TO A CONSTITUTIONAL ARGUMENT FOR PROCEDURAL FAIRNESS?
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SINGH V CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION) (SCC, 1985)
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BLENCOE V BRITISH COLUMBIA (HUMAN RIGHTS COMMISSION) (SCC, 2000) – S.7 ANALYSIS = GOOD STRUCTURE FOR EXAM, DELAY AND
THE CHARTER
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CHARKAOUI V CANADA (CITIZENSHIP AND IMMIGRATION) (SCC, 2007)
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HARKAT V. CANADA (FCA, 2012)
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PROCEDURAL FAIRNESS: LEGITIMATE EXPECTATIONS (LE)
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REFERENCE RE CANADA ASSISTANCE PLAN (SCC, 1991)
COUNCIL OF CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE (UK HL, 1985)
FUERY V ROMAN CATHOLIC SCHOOL BOARD BAY CENTRE (NFLD SCTD, 1991)
MOUNT SINAI HOSPITAL V QUEBEC (SCC, 2001)
LEGITIMATE EXPECTATIONS SUMMARY
IS FAULT REQUIRED ON THE PART OF THE DECISION MAKER?
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PROCEDURAL FAIRNESS: CONTENT
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BAKER FACTORS
GENERAL PROCEDURAL STATUTES
SPECIFIC CONTENT ISSUES
PRE-HEARING CONTENT ISSUES
(1) NOTICE
CANADA (AG) V CANADA (COMMISSION OF INQUIRY ON THE BLOOD SYSTEM – KREVER INQUIRY) (SCC, 1997)
(2) DISCOVERY AND DISCLOSURE
ONTARIO (HUMAN RIGHTS COMMISSION) V ONTARIO (BOARD OF INQUIRY INTO NORTHWESTERN GENERAL HOSPITAL) (ONT DIV CT,
1993)
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CIBA-GEIGY LTD V CANADA (PATENTED MEDICINE PRICES REVIEW BOARD) (FCA, 1994)
THE ACTUAL HEARING: PROCEDURAL FAIRNESS ISSUES
(A) ORAL VERSUS WRITTEN HEARINGS
KHAN V UNIVERSITY OF OTTAWA (ONCA, 1997)
(B) OPEN VERSUS CLOSED HEARINGS
(C) RIGHT TO COUNSEL AT THE HEARING
HOWARD V STONY MOUNTAIN INSTITUTION (FCA, 1985)
NEW BRUNSWICK (MINISTER OF HEALTH AND COMMUNITY SERVICES) V G(J) (SCC, 1999) – REFERENCED
(3) DISCLOSURE PROBLEMS (AT THE HEARING STAGE)
FOUR CATEGORIES OF DISCLOSURE PROBLEMS (ASSOCIATED WITH EXISTENCE AND EXTENT OF RIGHT TO DISCLOSURE):
RE NAPOLI AND WORKERS’ COMPENSATION BOARD (BCCA, 1981)
KANE V BOARD OF GOVERNORS OF UBC
CHARKAOUI V CANADA (CITIZENSHIP AND IMMIGRATION) (SCC, 2008)
GALLANT V CANADA (DEPUTY COMMISSIONER, CORRECTIONAL SERVICE CANADA) (FCA, 1989)
(5) RIGHT TO CROSS-EXAMINE
INNISFIL (TOWNSHIP) V. VESPRA (TOWNSHIP)(1981 SCC)
RE B AND CATHOLIC CHILDREN’S AID SOCIETY
POST-HEARING FAIRNESS: THE DUTY TO GIVE REASONS
WHEN WILL THERE BE A DUTY TO GIVE REASONS?
HOW DETAILED MUST THE REASONS BE TO SATISFY THE REQUIREMENTS OF PF
APPROACH:
VIA RAIL CANADA V NATIONAL TRANSPORTATION AGENCY (2001 FCA)
NEWFOUNDLAND AND LABRADOR NURSES’ UNION V NEWFOUNDLAND
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PROCEDURAL FAIRNESS: THE PRINCIPLE OF IMPARTIALITY
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REASONABLE APPREHENSION OF BIAS
PROCEDURAL FAIRNESS: THE PRINCIPLE OF IMPARTIALITY
TWO BASIC ELEMENTS TO THE COMMON LAW DOCTRINE OF NATURAL JUSTICE:
THE PRINCIPLE OF IMPARTIALITY IS OFFENDED WHEN:
REASONABLE APPREHENSION OF BIAS (RAB)
TEST FOR RAB:
WHAT IS THE CONSEQUENCE OF FINDING A REASONABLE APPREHENSION OF BIAS?
STATUTORY AUTHORITY
BROSSEAU V. ALBERTA (SECURITIES COMMISSION)
2747-3174 QUEBEC INC. V. QUEBEC
ATTITUDINAL BIAS: PREJUDGMENT OF A CASE
PAINE V UNIVERSITY OF TORONTO (ONCA, 1980)
DEFENSES TO REASONABLE APPREHENSION OF BIAS
CONTEXT AND THE RAB TEST:
OLD ST BONIFACE RESIDENTS ASSN INC V WINNIPEG (CITY) (SCC, 1990)
SAVE RICHMOND FARM SOCIETY V RICHMOND (TOWNSHIP) (SCC, 1990)-COMPANION CASE TO OLD ST. BONAFICE
NEWFOUNDLAND TELEPHONE CO V NEWFOUNDLAND (BOARD OF COMMISSIONERS OF PUBLIC UTILITIES) (SCC, 1992)
PELLETIER V CANADA (AG) (FC, 2008)
PROCEDURAL FAIRNESS: INSTITUTIONAL CONSULTATIONS
BENEFITS/CONCERNS WITH INSTITUTIONAL CONSULTATIONS:
INTERNATIONAL WOODWORKERS OF AMERICA V CONSOLIDATED-BATHURST PACKAGING LTD (SCC, 1983)
TREMBLAY V QUEBEC (SCC, 1992)
ELLIS DON LTD V ONTARIO (LABOUR RELATIONS BOARD) (SCC, 2001)
GENERAL PRINCIPLES:
LESSONS TO ADMINISTRATIVE AGENCIES ON ENSURING INSTITUTIONAL CONSULTATIONS ARE PROCEDURALLY FAIR:
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SUBSTANTIVE REVIEW
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HISTORICAL OVERVIEW OF SUBSTANTIVE REVIEW
1979: CUPE V NEW BRUNSWICK LIQUOR (SCC)
MODERN APPROACH = PRAGMATIC AND FUNCTIONAL
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STANDARD OF REVIEW ANALYSIS 1988: PUSHPANATHAN V CANADA (SCC)
DUNSMUIR V NEW BRUNSWICK
STANDARDS OF REVIEW (SOR)
THE CURRENT ANALYTICAL FRAMEWORK: DUNSMUIR V. NEW BRUNSWICK
DUNSMUIR V NEW BRUNSWICK (SCC, 2008)
REMAINING QUESTIONS POST-DUNSMUIR
WHAT ARE THE CATEGORIES OF ISSUES THAT WILL BE DETERMINED ACCORDING TO A STANDARD OF CORRECTNESS?
IN 2011-2012, THE SCC ISSUES A SERIES OF DECISIONS WHICH SUGGEST THAT CORRECTNESS REVIEW SHOULD BE REINED IN:
CONSIDERATIONS IN THE MODERN STANDARD OF REVIEW ANALYSIS
COMPONENTS IN THE STANDARD OF REVIEW ANALYSIS
(1A) PRIVATIVE CLAUSES AND STATUTORY RIGHTS OF APPEAL
(1B) STATUTORY RIGHTS OF APPEAL
(2) EXPERTISE OF THE DECISION MAKER
PEZIM V BRITISH COLUMBIA (SUPERINTENDENT OF BROKERS) (SCC, 1994)
CANADA (DIRECTOR OF INVESTIGATION AND RESEARCH) V SOUTHAM INC
(3) THE NATURE OF THE QUESTION
DR. Q V COLLEGE OF PHYSICIANS AND SURGEONS OF BRITISH COLUMBIA (SCC, 2003)
PUSHPANATHAN V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (SCC, 1998)
DISCRETIONARY AND POLICY QUESTIONS
CANADA (CITIZENSHIP AND IMMIGRATION) V KHOSA (SCC, 2009)
CORRECTNESS REVIEW
REASONABLENESS REVIEW
PRACTICALLY SPEAKING, HOW SHOULD JUDGES ASSESS WHETHER AN ADMINISTRATIVE DECISION IS “REASONABLE”?
(4) THE PURPOSE OF THE LEGISLATION, AND THE PROVISION IN PARTICULAR
PUSHPANATHAN V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (SCC, 1998)
CALGARY V ALBERTA (MUNICIPAL GOVERNMENT BOARD)
DORE V. BARREAU DU QUEBEC (SCC 2012)
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JURISDICTION AND THE CONSTITUTION
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COOPER V. CANADA (HUMAN RIGHTS COMMISSION)
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NOVA SCOTIA (WORKERS’ COMPENSATION BOARD) V. MARTIN & LASEUR
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JURISDICTION TO DETERMINE CONSTITUTIONALITY OF ENABLING LEGISLATION (FROM ABOVE CASE)
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EXAMPLE OF REBUTTAL:
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R V CONWAY
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DORÉ V BARREAU DU QUEBEC
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REASONABLENESS REVIEW AND THE CHARTER
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WHAT IS THE APPROPRIATE STANDARD OF REVIEW WHEN AN ADMINISTRATIVE DECISION INVOLVES AN ANALYSIS OF CHARTER VALUES?
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ADMINISTRATIVE LAW AND THE CHARTER
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REMEDIES
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PRACTICAL CONSIDERATIONS FOR CLIENTS IN SELECTING THE BEST METHOD:
HISTORICAL OVERVIEW OF ADMINISTRATIVE REMEDIES
ALBERTA RULES OF COURT – FOR DECISIONS MADE BY PROVINCIAL BODIES
VOLKER STEVIN NWT V NORTHWEST TERRITORIES (COMMISSIONER) (NWTCA, 1994)
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Introduction: The Administrative State
Introduction: What is Administrative Law?
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Concerns the legal regulation of public power, and public decision-making
Often associated with rule of law principles, which are meant to ensure that public decisions are justifiable in light of the relevant
law (statutory rules, common law principles, constitution)
Applies to:
o Decision makers exercising a public function
o Private organizations and individuals whose decisions affect the public interest
o Municipalities
o Public officials and institutions exercising statutorily delegated authority
 Cabinet ministers
 Regulatory boards
 Administrative tribunals
 Public institutions with statutory or licensing powers
 Crown Corporations
 Others (ex: Privacy Commissioner)
Controversial because judges, lawyers, citizens disagree about the legitimate role of the state, proper scope of individual freedom
in a liberal democracy and how law should regulate the relationship between citizens and the state
Facets of Administrative Law
 Procedural Fairness: (1) Is this type of decision subject to judicial review? (2) If so, did the decision-maker abide by the principles
of fair process?
o Concerns the process by which a decision is reached
o Did the person affected receive prior notice of the decision?
o Did the person affected receive adequate disclosure?
o Was the person given the opportunity to present evidence, cross-examine witnesses and provide submissions in advance
of the decision?
o Was the person allowed legal representation?
o Were reasons for the decision provided?
o Was the decision maker bias?
 Substantive Reasonableness: Does the decision contain a substantive error in judgment which warrants judicial intervention?
o Concerns the merits of a decision
o Reasonable in the sense that is was justifiable?
o Did the decision-maker act on proper legal reasons?
o Was the decision motivated by bias, arbitrariness or personal prejudice?
o Is the conclusion logically supported by the evidence?
 Remedies: if there are sufficient grounds for judicial intervention, what is the appropriate remedy under the circumstances?
o Can the court overturn the decision?
o Can the court grant a stay of proceedings while a party challenges an administrative decision?
o Can the court direct the decision-maker to reconsider the case?
o Can the court order a public official to take some action to resolve the matter?
o Can the court step into the shoes of the primary decision-maker?
Ways to Hold Administrative Officials Accountable
 Judicial intervention
o Statutory right of appeal
o Application for judicial review
 Courts have power by virtue of the “inherent common law jurisdiction”
 Superior courts have access to ancient common law remedies (the “prerogative writs”):
 Certiorari: to quash, nullify, or set aside an administrative decision
 Prohibition: to order a tribunal not to proceed with a matter
 Mandamus: directing an administrative official to perform a public duty
 Habeas corpus: to compel an administrative official to justify a person’s detention or imprisonment
(now generally overtaken by statutory remedies)
o Application for a Charter remedy under s. 24(1)
 Political oversight
 Ombudsman: a public independent official appointed by the government to deal with public complaints against officials
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Media pressure
Administrative appeals
The Rule of Law
 “Rule of law”: designed to ensure that public decision-makers reach their decisions in a manner that is justifiable as a matter of
law (as opposed to being based on whim or fancy)
o Assumption: decisions which are consistent with the rule of law create genuine legal obligations, while decisions which
offend the rule of law are fundamentally unjust
o Note: Similar arguments might be made with respect to emanations of private power as well.
 Public lawyers determining whether or not a private corporation (individual) is flouting the rule of law
 Main common virtues associated with the rule of law:
o Enables people subject to the law to plan their affairs in accordance with it (respects personal autonomy, freedom,
human dignity)
o Acts as a safeguard against arbitrary political power, ensures political accountability
o Includes independent judicial oversight
Different Philosophical Conceptions of the Rule of Law
1. A. Dicey: wrote the first commercial text on constitutional law in England.
a. Two fundamental principles of the English (unwritten) constitution:
i. Parliamentary Sovereignty: Parliament can make or unmake any law, no one can override. Based on an
argument of democratic legitimacy.
ii. Rule of Law:
1. No man is punishable except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land, based on a legal process supervised by the courts. (judiciary
decides whether state has satisfied the law)
2. No man is above the law…every man, whatever be his rank or condition, is subject to the ordinary law
of the realm and amendable to the jurisdiction of the ordinary tribunal
3. The general principle of the constitution…are the result of judicial decisions determining the rights of
private persons in particular cases brought before the courts (common law)
b. No administrative official can be given discretionary power
c. Argues that “administrative law” is inherently illegal – a government official cannot be empowered by statute to act –
judges should hold final decision-making power
i. But, in Dicey’s time, the administrative state in England was limited, so Dicey tended to overlook its role in
English society. He was politically opposed to the emerging welfare state
2. L Fuller: mid-20th century legal philosopher (The Morality of Law (1969)
a. Principles are based on The Morality of Law (fair play):
i. The law must be general in application
ii. The law must be publicized (publicly accessible)
iii. The law must be intelligible (cannot be over-broad, over-vague, contradictory)
iv. The law cannot have retroactive force (people must be given the chance to plan their affairs in accordance with
the law)
v. The law cannot be contradictory
vi. The law cannot impose obligations which are impossible to perform
vii. The law cannot be revised so frequently that no on can understand what his/her legal obligations are
viii. The law must be enforced consistently
3. Modern View: the welfare state has expanded significantly; society views the franchise as universal.
a. Key issue: a formulation of the rule of law that is respectful of popular democratic decisions and the modern
administrative state
b. The rule of law has to be applied with sensitivity to context
i. Judges will sometimes refrain from quashing decisions to show restraint, other times will be more willing to
take more extensive action
Important Administrative Law Decisions from Laskin Court (1973-1984):
1. Nicholson v Haldimand-Norfolk Board of Police Commissioners: A general duty of procedural fairness will be implied unless
expressly excluded by statute.
2. CUPE v New Brunswick Liquor Corp: Judges should defer to administrative decisions, so long as those decisions are rationally
defensible in light of relevant legal principles.
3. Crevier v AG (Quebec): citizens have a constitutional right to judicial review of administrative decisions.
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What is good about the rule of law?
Enables legal subjects to plan their lives in accordance with the law (personal autonomy)
Acts as a safeguard against arbitrary political power (political accountability)
Some degree of due process and independent assessment (judicial review) (judicial review)
Different Ways to Hold Administrative Official Accountable
Political oversight – ie. Contacting minister in charge of department
Ombudsman – public official appointed by government but independent of government, tasked with dealing with public
complaints against government officials
Media Pressure
Administrative appeals
Judicial review
Judicial Review and the Rule of Law
Parties with standing to challenge an administrative decision can seek judicial intervention in different ways
o Statutory Right of Appeal
 Take many different forms: could be as broad as allowing appeal for question of law, fact and discretion and
authorize appellate court to substitute its opinion for that of the agency or could limit to question of law and
jurisdiction
 Emerging pattern that in the absence of strong reason to the contrary the legislature will include a statutory
right of appeal to a court from an administrative agency where agency’s decision affects individual’s common
law rights
 Provincial superior courts (e.g. the Alberta Court of Queen’s Bench) have inherent supervisory jurisdiction over
administrative decisions at common law.
 The Federal courts have exclusive supervisory jurisdiction over federal administrative decisions by virtue of the
Federal Courts Act.
o Application for judicial review: courts’ have this power by virtue of their inherent common law jurisdiction
 Superior court judges have access to ancient common law remedies which used to be known as “prerogative
relief” or “prerogative writs”:
 (1) certiorari=remedy used to quash, nullify, or set aside an administrative decision;
 (2) prohibition=remedy used to order a tribunal not to proceed with a matter;
 (3) mandamus=remedy used to compel an administrative official to perform a public duty;
 (4) habeas corpus=a remedy used to compel an administrative official to justify a person’s detention or
imprisonment.
o Application for a Charter remedy under s.24(1)
Judicial Review and the Administrative State
Two general, very different approaches prevalent throughout 20 th century
1. Correctness review – judges entitled to substitute their own decisions whenever they disagree with an administrative
decision
 Often distinguish between Qs of fact (on which administrative officials are entitled to asses evidence and make
decisions) and Qs of law (which only courts are entitled to)
 Over 20th century many lawyers, judges and academics challenged this view as not an exercise of plenary
appellate review and as being overreaching: if, for example parliament gave issue of labour to workers comp
board, then this board is more qualified to decided issues of law in this area
 Judicial review too strong: when judges ignore the decision and use their own instead. But because an admin
decision maker has primary authority for a particular issue, it would be inappropriate for courts to assume they
had primary authority and step into shoes of primary decision maker as if initial decision never took place. Not
enough for courts to say they disagree with initial decision. Judges must respect those decisions and can only
intervene under certain circumstances when error is particularly egregious
2. Submissive deference – because the legislature has empowered an administrative official to decide the issue, judges
cannot second guess that decision
 Especially prevalent in dealing with detainment in war crimes, courts often say this is not our job to request
evidence from the minister on why such a person is a threat to national security
 Judicial review too weak: courts talk in opposite language: because authority was given to someone else and
involves political decisions, we aren’t going to second guess it or look at it, or only look at it in formal way.
Famous decisions regarding national security risks, both in WW2 and recent War on Terror where courts say:
national security risks is assessment for executive or department of national defense to make. Judges aren’t
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suited to make those assessments. So we’ll determine if admin body was given authority by parliament and
after that, we’re done. This is bad because you want judges to be more careful/more involved with government
action to ensure action abides by rule of law (like detaining people indefinitely without trial, that kind of
decision should have judicial review)
Big Question: How can judges uphold rule of law, while respecting legitimacy of administrative state?
o Van Harten, Heckman – we see no necessary inconsistency between, on the one hand, the core values of the rule of law
– government that is subject to law and respectful of the claims of individual dignity and basic liberties and on the other
hand, the public interest in an administration with the capacity to deliver programs effectively, efficiently and
responsively.
o The rule of law has to be applied with sensitivity to context: trend away from deeming decisions solely within the
purview of, ie. A minister – traditionally foreign affairs regarded as a prerogative power and courts had no business
subjecting such decisions to judicial review – beginning to change.
 So along with expansion of judicial review qualification is that judges are trying to adjust the rule of law to
account for context – ie. This type of decision is traditionally on of ministerial discretion (such that judges can’t
quash these decisions or issue orders to the minister) so judges soft pedal – i.e. minister has to explain why they
are not writing a letter to plead clemency but that is extent of judicial influence.
Sources of Administrative Law
 The Constitution
o The Constitution Act
o The Charter
o The “unwritten” constitution: per preamble (“similar in principle to that of the United Kingdom”). See Provincial Court
Judges Reference, Quebec Secession Reference)
 Statutes, Regulations: legislation enables the broad powers, and gives specific officials the ability to enact regulations to guide the
administrative practice
 Official Policy Statements
o Decision-making protocols, information booklets, etc
o As in Baker, can influence courts. Logic: if you say you will give people a certain opportunity, you must follow through
 Common Law Doctrine
 International Treaties
o Used in Baker (even though not ratified in Canada) to hold that the decision-maker had to consider the child’s interests
in a particular way
o Per Baker, the decision-maker must be “alert, alive, and sensitive” to different sources of law – the interpretation is up
to the administrative official, but it must be reasonable
Baker v. Canada (Minister of Citizenship and Immigration [1999 SCC]
Facts: Baker comes to Canada on a visitor’s permit and stays 11 years; during that time has 4 Canadian born children (therefore citizens of
Canada), all under the age of 10; after the birth of her last child she is hospitalized and applies for welfare; public officials learn she is not a
permanent resident and start deportation proceedings; Minister has power to allow someone to stay on humanitarian and compassionate
(H and C) grounds and she applied for an exemption based on this under s.114(2) of the Immigration Act, from the requirement that an
application for permanent residence be made outside of Canada. This application was supported by letters indicating concern about
availability of medical treatment in her country of origin and the effect of her possible departure on her Canadian-born children. A senior
immigration officer replied by letter stating that there were insufficient reasons to warrant processing the application in Canada. This
letter contained no reasons for the decision. Counsel for the appellant, however requested and was provided with the notes made by the
investigating immigration officer and used by the senior officer in making the decision. Counsel applies for judicial review at Federal Court
(as Immigration is a federal ministry). The FC dismissed an application for judicial review but certified the following question pursuant to
s.83(1) of the Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with
respect to the International Convention on Rights of the Child, must federal immigration authorities treat the best interests of the
Canadian Child as a primary consideration in assessing an applicant under s.114(2) of the Immigration Act?” The court of Appeal only
considered this question and found that the best interests of the children did not need to be given primacy.
Goes to SCC
International Convention on Rights of the Child: a signed treaty (signed by Executive branch) but not ratified, not a part of our domestic
law. Executive can’t just pass law, it must go through the legislative system
Issue: Were the principles of procedural fairness violated in this case? Was discretion improperly exercised because of the approach taken
towards the interests of Ms. Baker’s Children?
Were the participatory rights accorded consistent with the duty of procedural fairness?
Did the failure of the immigration officer to provide reasons violate duty of procedural fairness?
Was there a reasonable apprehension of bias in the making of this decision
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Decision: Yes – both because there was a violation of procedural fairness owing to a reasonable apprehension of bias and because
exercise of H and C discretion was unreasonable (appeal allowed – returned to minister for redetermination by different immigration
officer)
Remedy suggests she respects Minister’s authority because she sends case back, doesn’t decide it. Says what she would have decided, but
doesn’t make the decision
Reasoning: Sources of law considered – Case law (principles of administration law), ministerial guidelines, immigration act and the
regulations, International Treaty adopted by government of Canada but not ratified by Canada, Charter (SCC noted it was relevant but
didn’t need to resort to it)
Stated Question under 83(1) Immigration Act
o CA incorrectly held that the s.83(1) requirement that a serious Q of general importance be certified for an appeal to be
permitted restricts an appeal court to addressing the issue raised by that question
o Pushpanathan: certification of a Q of general importance is the trigger for which an appeal is justified but the object of
the appeal is still the appeal itself not merely the certified question
Procedural Fairness (PF)
o A contextual approach to judicial review:
 Court looks through details of case and the relevant laws, and decide on whether decision is fair or not, and
why it is fair or not
 Procedural fairness=Ms. Baker was entitled to fairness, but she wasn’t entitled to the full range of procedural
safeguards.
 Substantive reasonableness=the Court didn’t say that the immigration official was legally required to write a full
dissertation on the different sources of law, but nevertheless had to act “reasonably” in light of relevant law.
 Remedies=the matter was “returned to the Minister for a redetermination by a different immigration officer”.
o Baker suggests that PF requires an oral hearing, notice of that hearing and right to have counsel present
o Both parties agree that duty of PF applies to H&C decisions: The fact that a decision is administrative and effects the
rights, privileges or interests of an individual is sufficient to trigger the application of the duty of fairness – Cardinal v.
Kent
o But content will vary: the concept of PF is eminently variable and its content is to be decided in the specific context of
each case. All the circumstances must be considered in order to determine the content of the duty of PF – Knight
o Though duty of PF is flexible and variable: depends on context of particular statute and right affected, these 5 criteria
can help determine what procedural rights the duty of fairness requires in given circumstances
 Underlying the Baker factors is the notion that the purpose of the participatory rights contained within the duty
of PF is to ensure administrative decisions made using a fair and open procedure, appropriate to the decision
being made and its statutory, institutional and social context, with an opportunity for those affected to put
forward their views and evidence fully and have them considered by the decision-maker
Baker Factors: Factors relevant to determining content of duty of PF but list is not exhaustive
(1) nature of the decision being made and process followed making it
o Knight: closeness of the admin process to the judicial process should indicate how much of those governing principles
should be imported into the realm of admin decision-making
o The more the process provided for, function of tribunal, nature of the decision-making body, and the required
determination of decision resemble judicial decision making the more likely that procedural protection closer to the
trial model will be required
o Here: H&C very different than judicial decision because involves considerable discretion and requires consideration of
multiple factors – suggests more relaxed requirement
(2) nature of statutory scheme and the terms of the statute pursuant to which body operates
o Greater procedural protection when no appeal procedure provided or when decision is determinative of the issue and
further requests cannot be submitted
o Here: role of H&C decision within stat scheme is an exception to the general principles of Canadian immigration law –
suggests more relaxed requirements – but also no appeal procedure, though judicial review available with leave of Fed
Court
(3) the importance of the decision to the individual or individuals affected
o The more important the decision is to the lives of those affected and greater the impact, the more stringent the
procedural protections that will be mandated
o Significant factor affecting content of PF
o Here: decision has exceptional importance to B and her children – suggest more extensive duty
(4) the legitimate expectation (LE) of the person challenging the decision
o Does not create substantive rights (Old St. Boniface) but if claimant has legitimate expectation that a certain procedure
will be followed, the procedure will be required by duty of PF
o Similarly if claimant has LE that certain result will be reached in their case, PF may dictate more extensive procedural
rights than would otherwise be accorded
8
o
Based on principle that circumstances affecting PF take into account the promise or regular practice of admin decisionmakers and that it will generally be unfair for them to act in contravention of representations as to procedure or to
backtrack on substantive promises w/o according significant procedural right
o Here: B argued that convention and Canada’s ratification of it gave here LE that specific procedural rights above what
would normally be required would be accorded in the H&C decision – but convention not equivalent of government
representation about how decision will be made nor does it suggest any rights beyond participatory rights discussed –
so LE not a factor in the analysis
(5) the choices of procedure made by agency itself
o Take into account and respect agency choices especially where the statute leaves decision-maker the ability to choose its
own procedure or when agency expertise in determining appropriate procedures in circumstances
o Here statute accords considerable flexibility to Minister to decide proper procedure and immigration officers as a matter
of practice do not conduct interviews in all cases
Participatory Rights
Some of the other factors suggest stricter requirements under the duty of fairness and others more relaxed requirements further
from the judicial model
Duty of fairness owed in these circumstances is more than minimal: claimant and others whose important interests are
fundamentally affected by the decision must have a meaningful opportunity to present evidence and have it fully and fairly
considered
But cannot be said that oral hearings are always necessary to ensure fair hearing and consideration of the issues: the flexible
nature of duty of PF recognizes that meaningful participation can occur in different situations
o B’s opportunity to produce full and complete written documentation was sufficient
o Lack of an oral hearing or notice of a hearing did not constitute a violation of the requirement of PF
Provision of Reasons:
Trial judge held that since there were no reason for senior officer’s decision, no affidavit was provided and no reasons were
required, she would assume in the absence of evidence to the contrary that he acted in good faith and made decision based on
correct principles
Traditional CL position is that duty of PF does not require reasons to be given as a general rule
In certain circumstances, ie: when decisions have important significance for an individual or when there is a statutory right of
appeal, duty of PF will require written explanation for a decision
Many benefits to providing reasons: foster better decision making by ensuring that issues and reasoning are well articulated and
therefore more carefully thought out – process of writing reasons may guarantee a better decision – allows parties to see that
applicable issues have been carefully considered – invaluable if decision is to be appealed, questioned or considered on judicial
review
Disadvantages: may lead to inappropriate burden on admin agencies = increased time and delay – may induce lack of candour on
part of admin officials
o Concerns can be accommodated by ensuring that reasons requirement under duty of PF leaves sufficient flexibility to
decision makers by accepting different types of written explanations for the decision as sufficient
Here: importance/impact of decision means it would be unfair to a person like B to not be told why
o But requirement fulfilled by provision of the junior immigration officer notes – takes into account day-to-day realities
of admin agencies and recognizes transparency may take place in various ways
Reasonable Apprehension of Bias (RAP): PF requires that a decision be made free from RAB, by an impartial decision-maker
Duty applies to all immigration officers who play a role in the making of decisions – requires recognition of diversity,
understanding of others, and openness to differences
Doesn’t matter this was a junior officer because his bias may have influenced senior officer (ultimate decision)
Immigration officers notes suggest he may have based conclusion on fact that appellant was a single mother with several
children, with a psychiatric illness
A reasonable and well-informed member of the community would agree that the officer had not approached the case with the
impartiality expected of an immigration official – seemed that his frustration with the system interfered with his duty to act
impartially
Review of Exercise of Minister’s Decision
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
Though discretionary decisions will generally be given considerable respect, that 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
In determining standard of review, considerable deference should be accorded to immigration officers exercising powers
conferred by legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the
considerable discretion evidenced by the statutory language
9
But in the absence of privative clause, the explicit contemplation of judicial review by the Federal Court, and the individual nature
of the decision suggests that the standard should not be as deferential as patent unreasonableness but rather should be
reasonableness simpliciter
o Wording of the legislation shows Parliament’s intention that the decision be made in a humanitarian and compassionate
manner = requires close attention to interest and needs of children since these are central humanitarian and
compassionate values in Canadian Society
o Indication of these values are found in purposes of the Act, international instruments and Minister guidelines
o Reasons for this decision did not indicate attentiveness or sensitiveness to the interests of the appellant’s children as
an important factor, thus it was an unreasonable exercise of the power conferred by the legislation
o The reasons also failed to give sufficient weight or consideration to the hardship that a return to the appellant’s country
of origin may cause her
Summary:
Procedural fairness – Ms. Baker was entitled to fairness but she wasn’t entitled to the full range of procedural safeguards
o B argued for a right to an oral hearing but not granted
o The immigration board is the largest admin tribunal in country – to provide full procedural fairness would mean
administrative process would grind to a halt
Substantive reasonableness = the Court didn’t say that the immigration official was legally required to write a dissertation on the
different sources of law but to demonstrate reasonable regard for different sources of law
o Different standard than “correctness” not sufficient for judges to simply disagree with decision
o Decision had to be unreasonable: official must demonstrate they were “alert, alive, and sensitive to different sources =
latitude to exercise judgment
-
The Baker Framework:
(1)
(2)
(3)
(4)
(5)
The nature of the decision being made and the process followed in making it;
The nature of the statutory scheme and the terms of the enabling legislation;
The importance of the decision to the individuals affected by the decision;
The legitimate expectations of the person challenging the decision; and
Deference to the procedural choices made by the decision-maker.
Procedural Fairness: The Common Law Doctrine (Thresholds)
Introduction: What is Procedural Fairness?
 Concerned with whether the claimant’s procedural legal rights were honoured before the decision was announced
 Requires public officials to employ decision-making processes which are “fair” in the sense that:
o (1) People affected by an administrative decision are empowered to participate in the process (e.g. right to notice,
disclosure, argue, cross-examine, etc); and – but these are pointless unless:
o (2) The decision maker is fair and impartial (rules regarding adjudicative independence and guarding against bias)
 If not impartial, person has a complaint independent of the merit of the decision itself
 Descends from the rules of natural justice
o But, today applies to a much broader spectrum of decisions
 Procedural fairness has both instrumental and inherent value, see below
 The first of the seminal cases that marked the development of the modern doctrine of procedural fairness is Cooper v Board of
Works for Wandsworth District
o Initial common law case in which the courts railed against the failure of those in authority to provide a hearing before
making a decision affecting the rights of a specific citizen
o Relied on the 1923 Dr Bentley’s Case, where Dr Bentley, a notorious academic, challenged the removal of his degrees
and his status by Trinity College
o Emphasizes the nature of the interest at stake – a “property” right – and the fact that the decisions involved a
determination that a wrong had been committed by an individual leading to the imposition by a tribunal of a penalty
The Importance of Procedural Fairness – How is Procedural Fairness Related to the Rule of Law?
 Instrumental value: when public officials abide by the principles of procedural fairness, better conclusions are drawn (more
accurate, informed decisions)
o The rule of law is enhanced because the law is being applied correctly
 Inherent value: apart from enhancing public decision making, procedural fairness demonstrates respect for people who are
affected by an administrative decision
o Implies a value of dignity – the right to be treated properly and fairly
Historical/terminological evolution
10



Originally, the principles of “natural justice” applied only to the exercise of “judicial” or “quasi-judicial” powers, while
“administrative” powers could be exercised without legal constraints.
 Is this administrator exercising judicial or administrative power?
Beginning in Nicholson, you see a transition away from abstract conceptual distinctions.
 Move away from all or nothing approach to procedural fairness (judicial/quasi-judicial vs. administrative) towards
contextual approach – the types of procedural fairness you see in common law are different then the procedural fairness
you’d get when applying for a liquor licence or are Baker and getting deported. Types of PF rights differ between
different situations – it is contextual
Nicholson also signals the broadening reach of the doctrine of fairness, as well as a more nuanced doctrinal framework.
Some basic questions when reading a decision:
1. Does this type of decision require a duty of fairness?
2. If it does, what sources of law are relevant under the circumstances?
a. Can be a broad net: enabling legislation, Charter, the regulations, general procedural statutes, common law doctrine,
ministerial guidelines, past practice (legitimate expectation)
3. What level or degree of procedural fairness is required under the circumstances?
a. Some cases only require notice
i. A homeowner given notice that a corporation is applying to redevelop a piece of property in the neighborhood,
if you want to object show up here on this date, or forever hold your peace. In this case, a court will not likely
allow someone to turn a property redevelopment application into a trial where the homeowner can crossexamine the corporation and the city council
ii. Notice in above situation implies you get some fairness, but not the same kind of fairness when you get a
speeding ticket where you can plead guilty/non-guilty and set a trial date. More fairness in this situation
4. Was this particular decision-making process fair?
See Cooper v Wandsworth Board of Works
 An early example of common law reasoning about procedural fairness
 Someone hires Cooper to build a house for them in the Wandsworth district in London. According to a certain Act, anyone
intending to build a new house had to give 7 days notice prior to construction. If you did not give notice, the house can be
demolished and the expenses from demolition could be recovered from you. Why give the municipality this power?
o To ensure that all buildings are up to code, particularly for sanitation reasons (sewers)
 Cooper did not give notice in time, so house was torn down
 Cooper says: I gave notice, but started construction within 5 days of sending notice (started 2 days too early). Therefore, he was
in contravention of the Act
 BUT, even though he was in violation of Act, and municipality can tear down his house, court concluded that it was unfair he
didn’t get notice that his house would be torn down
o On what legal basis did court decide this decision to demolish was unfair? Statute doesn’t say that municipality must first
talk to Cooper and let him know about upcoming demolition.
 Court says: importance of property rights, fact this case concerns property right adds importance
o You should hear somebody before deciding to destroy their property
 Is this conclusion justified?
Modern Considerations in Procedural Fairness
 In recent years, the threshold for procedural claims has been lowered
 Courts are more willing to make choices among procedures and require different procedures for different kinds of decisions
o Court-like processes will not be required automatically
 The claim of the courts to be experts has diminished considerably
o Reflects a call for deference to procedural choices
Terminology: Natural Justice / Procedural Fairness
 “Natural justice”: the right to a decision by an impartial decision maker after a fair hearing
o Historically reserved for judicial decisions (administrative decisions that mirrored the court process) – ALL OR NOTHING
approach
o Generally used to denote a large body of common law about procedures
o Often called the doctrine of audi alteram partem (listen to the other side)
 SCC has transitioned the language away from the term “natural justice” over the last 40 years
o Court has installed the concept of “procedural fairness”
o This enlarges the scope of procedural fairness and doesn’t restrict it to particular types of decision makers
11
o
The focus instead is on content, which changes according to context (the analysis has become more nuanced)
Approach to a Procedural Fairness Problem
1.
2.
3.
4.
Does this type of decision require a duty of fairness?
a. A threshold determination
b. Key question: what are the kinds of decisions for which some procedural rights should be given?
If so, what sources of law are relevant under the circumstances?
a. What sources of law ground the content of the duty?
What level or degree of procedural fairness is required under the circumstances?
a. Baker Factors
b. Depends on the context of the decision
c. Depends on the nature of interests at stake, you are entitled to more/less fairness
Did the decision-making process in fact satisfy the requirements of procedural fairness in this case?
Sources of Law for Procedural Fairness
Procedural sources of fairness:
1. The Enabling Statute.
a. May set out a detailed list of procedural requirements that decision makers must follow in making specific decisions
b. Ex: in Singh, the provisions of the Immigration Act prescribed a complete procedural code governing refugee status
determinations and thus superseded and displaced the common law duty of procedural fairness
i. Recognizing that it could not import procedural constraints into the duty of fairness that were incompatible
with the decision making scheme set up by parliament, the SCC proceeded to determine whether it could
override the clear statutory language based on constitutional or quasi-constitutional rights
2. Subordinate Legislation. Rules enacted by the executive under delegated authority under an administrative board’s enabling
statute.
a. Main reasons for delegating power are expertise and efficiency
b. Subjected to various mechanisms of accountability and scrutiny
c. Can be challenged via judicial review where the statutorily prescribed mandatory steps for enactment were not
followed, or on substantive grounds (non-compliance with the Charter, e.g.)
3. Policies and Guidelines. Technically not “law”.
a. These “soft law” instruments often play a dominant role in authorities’ decision making
b. Whether procedural requirements established by the agencies are “law” depends on the context
c. Per Baker, the SCC will rely on ministerial guidelines as a useful indicator of what constitutes a reasonable interpretation
of the minister’s powers (rigid dichotomy between “binding” rules and “non-binding” guidelines is eroding)
4. General Procedural Statutes.
a. Ex: Alberta Administrative Procedures and Jurisdiction Act
b. Once triggered, these codes prescribe common procedural standards for all decision makers falling within their ambit
5. Common Law Procedural Fairness.
a. Per the doctrine of audi alteram partem, a party affected by a public authority’s decision is entitled to be heard in an
impartial and independent hearing (nemo judex in sua causa – the decision-maker must not be a “judge in his own
cause”)
b. See Cooper, Nicholson
6. Canadian Bill of Rights
a. 1960 enactment = movement towards constitutionalization of procedural entitlements, but largely ineffective due to
restrictive judicial interpretation
b. Re-discovered in Singh v. Canada (Minister of Employment and Immigration) – invoked as an alternative source of
constitutionally protected rights
7. The Constitution
a. Charter: has constitutionalized certain procedural entitlements (especially s. 7)
i. But, the extent of this impact from the existing common law principles is uncertain
b. Implied bill of rights cases (Provincial Court Judges Reference, Secession Reference)
8. International instruments.
a. “Soft law.”
b. Taken into consideration in Baker, even though the international treaty (Convention on the Rights of the Child) was not
actually implemented into Canadian law. LHD held that the interpretation must give regard (be “alert, alive, and
sensitive”) to these different sources of law
c. In his concurring reasons in Baker, Iacobucci disagrees – holding that an international convention is of no force and
effect in Canada until the provisions are incorporated into domestic law, and we should not inadvertently grant the
executive the power to bind citizens without the involvement of the legislative branch in passing laws.
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Procedural Fairness: Common Law Doctrine
Key importance of Cooper: an important shift in the development of procedural fairness.
1. The common law will imply a duty of fairness, even if the legislation is silent
2. The court is potentially moving away from the analytical distinction between “judicial” and “administrative” functions
The Common Law Duty of Fairness
 Legislative silence ≠ no procedural fairness, because “although there are no positive words in a statute…the common law will
supply the omission of the legislature.” (Cooper)
 The scope of fairness is not limited to “judicial” or “quasi-judicial” decision-making processes.
 Procedural fairness is not limited to property rights, it applies whenever an administrative decision affects the “rights, privileges,
and interests” of a claimant (employment, prisoner’s rights, worker’s compensation benefits, etc.).
 Three aspects of the evolution of the CL of procedural litigation
o Language of discourse: words used to express the doctrine have changed
o Threshold below which no procedural claims will be recognized has been lowered
o Courts are more willing to make choices among the procedures and to require different procedures for different types of
decisions.
Expansion
 Property rights (Cooper)
 Public employment (Nicholson, Knight v Indian Head School Division)
Traditional Common Law Doctrine
Cooper v Board of Works for Wandsworth District (Eng CP, 1863)
Facts: Statute stipulated that anyone building a house had to give the Board of Works 7 days notice before starting to ensure proposed
building would be up to code (public sanitation concerns). Absent this notice, the Board could demolish the building. Cooper built a
house, admitted he sent notice late, but it was never received. Board tore down the house without notice. Cooper brought an action for
damages in trespass and succeeded at trial but Board obtained a rule nisi (does not have any force until such time that a particular
condition is met); C brings application for judicial review, saying board’s decision was unlawful because it was unfair; Board argues they
were entitled by statute to tear down the house.
Issues: was Cooper entitled to procedural fairness and a hearing before the decision to tear down his house?
Held: Yes. He was entitled to notice and a hearing independent of the decision itself and therefore board acted wrongfully
Reasoning: Although the legislation doesn’t mention a right to fairness, judges can still imply it based on the common law – even if there
are no positive words in a statute requiring a right to be heard, “the common law will supply the omission of the legislature.”
The power to tear down a building carries enormous consequences – cannot conceive of any harm in giving advance notice:
wouldn’t disrupt ability of board to administer the Act in the public interest, not onerous to give notice – can still dear down
building not up to code – but potential loss is very high
The Court declines to be bound by traditional analytical categories that limited the reach of the fairness requirement.
Entitlement to procedural fairness was based on the following considerations:
o Consequences of the decision: significant.
o Importance of a property right: “no man shall be deprived of his property without an opportunity of being heard”, even
in non-judicial proceedings
o No harm to the Board to be required to give notice – no disruption in ability to administer the legislation in the public
interests
Remedy: damages. A “collateral attack” – remedy sought is not judicial review.
Ratio: There is a duty to procedural fairness independent of statute – when statute is silent, courts entitled to imply a common law duty of
fairness. Reflects historical protection of property rights
 Case is expansive in 2 senses
o Judges imply right to procedural fairness
o Court says were not bound by traditional analytical categories
Commentary: Case demonstrates an important shift in the development of procedural fairness. Raises questions about the (ir)relevance of
the analytical distinction between “judicial” and administrative functions.
Argument for logical fairness but could also say judiciary is legislating, lack of certainty (how to know procedural guarantees if
court can read them in)
3 ways to rationalize courts decision
o Forgetful legislature approach: where legislature hasn’t spoken on issue of PF, role of court is to consider what
legislature would have done if it had thought about the issue
13
o
o
Common law establishes a baseline for procedural entitlement: if the legislature legislates, it must do so against this
background and is taken to acquiesce to common law rights unless it expressly mentions otherwise
Court has a common law power: autonomous power of judges to protect individual rights and enforce those unless the
legislature speaks explicitly on the subject
Post Cooper
Courts willingness to impose hearing requirements on decision makers became contingent on how they categorized the nature of
their decision-making power
o Judicial or quasi-judicial = comply with “natural justice”
o Ministers, public servants or tribunals = not required
All or nothing dichotomy which denied procedural protection to some parties based on ill-defined distinction between judicial
and administrative decisions
Became increasingly untenable: in a series of decisions from 1964 -1970, English courts decided they would review admin
decision for breach of implied procedural protection
The Modern Common Law Doctrine
Nicholson v. Haldimand-Norfolk Police [1979 SCC]
Facts: Under Police Act regs, a police officer could be discharged without procedural protections if they had worked for under 18 months.
Nicholson served as a constable for 15 months and was discharged by the police board without a hearing. He sought review.
Issues: Was Nicholson entitled to a hearing prior to his termination under PF?
Held: Yes. Statute doesn’t explicitly entitle him to PF but there is legal onus on board to give him notice and a hearing grounded in CL
Reasoning:
N can’t claim procedural requirements of an 18+ month constable but he can’t be denied any protection
An office holder at pleasure may not be terminated without procedural fairness. There may be a duty to act fairly for
administrative decisions as well as judicial decisions. This is because the classification of functions as judicial, quasi-judicial, or
administrative is very difficult, and often works injustice when the result of a decision raises the same serious consequences.
Granting these procedural entitlements enhances the ability of the Board to fulfil its public function.
Here: Consequences for N were very serious “He should be treated fairly and not arbitrarily” – requirement of notice makes
board less likely to act in arbitrary fashion.
o N should have been given reasons why he was being fired and an opportunity, orally or written, to respond = fairness to
N and the board
 Benefit to Board: would be sure it had not made a mistake, thus giving procedural entitlements to enhance the
ability of the board to fulfill its function
 No detriment to board: still independent, non-reviewable decision
The rules of natural justice dictate that not just in adjudicative field, but in the administrative or executive field as well there is a
general duty of fairness. The content of the right to PF is contextual and depends heavily on particular facts
o Just because PF is owed, does not guarantee full gamete of rights – will depend on nature of interests and structure of
admin process at play
Remedy: decision to terminate is quashed and the matter is sent back to the Board for a redetermination. He is given an opportunity to
be heard, be represented by counsel, present evidence, and cross-examine. The Board decides again to terminate.
Ratio: Canada’s Cooper: establishes the doctrine of PF in Canadian Law; Broadens procedural protection to encompass activities that fall
outside of the judicial or quasi-judicial realm and lessens the importance of such classifications. After this case, see renaissance with PF
being granted to people who never had it before, such as prisoners.
Dissent: the decision was purely administrative; no duty of fairness was required by law.
Post Nicholson: Court goes on a bit of spree: gives procedural rights to parties who didn’t have such rights before
Ie: historically prisoners had no rights: court started reviewing disciplinary decision in prison – SCC says before you can put
someone in solitary, have to give them notice and full hearing, giving them opportunity to make their case
Moving property rights (historically very protected at common law) to employment (historically not protected at common
law) to imprisonment = enlarging scope, adjusting context and establishing a firm common law foundation
Basic Propositions:
Legislative silence ≠ no procedural fairness, because “although there are no positive words in a statute…the common law will
supply the omission of the legislature.” (Cooper)
How was this proposition extended, if at all in Nicolson?
o Cooper: the only piece of legislation that was relevant was the one that said that the Board had the power. Said nothing
about procedural rights
o Nicholson: express provisions in the statute that gave people the right to PF over the probationary period, and the
statute stated that this didn’t affect the rights of the Board to dismiss probationary employees. Court says that if you
want to exclude PF, you have to explicitly exclude those rights.
 IOW, if you want to reduce someone’s common law rights, need to do so explicitly.
14
o
-
PF is not limited to property rights, it applies whenever an administrative decision affects the “rights, privileges and
interests of a claimant
 Initial approach was a strong protection of property rights
 But as admin state expanded, different types of entitlements were created (ex. Workers Comp) – the court
started to expand from property rights to different types of state created entitlements
 In Nicholson, court granted rights of PF in context of public employee – seems to suggest that the state, as an
employer, has certain duties of PF
 Prisoner rights – the Cardinal case = watershed moment in admin law – can’t subject prisoners to additional
forms of punishment without giving them the right to be heard
Scope of fairness is not limited to judicial or quasi-judicial decision making process
o Focus shifted to the impact of the decision on the claimant – as the impact becomes more severe, they are entitled to
more fairness.
The Appropriate Analytical Approach




The debate in Knight:
o L’Heureux-Dube: start with an overarching common law duty of fairness, and see if the statute specifically excludes them
(see also Cooper and Nicholson)
o Sopinka: start with the statute to see if it grants a duty of procedural fairness
Clarified in Baker. To determine what the doctrine of procedural fairness requires under the circumstances, consider:
Start with: overarching values/principles
o Assume that duty of PF is broad but content is determined by context of the decision
o Purpose: to ensure that admin decisions are made using fair and open procedure with an opportunity for those affected
by decision to put forward their views and evidence fully and have them considered by the decision maker (openness
and sensitivity)
Analytical framework (BAKER FACTORS):
o (1) The nature of the decision being made. If it closely approximates a judicial decision, will expect more fairness. If the
decision is more legislative (i.e. doesn’t affect a particular individual’s rights, but rather broad segment of society), then
less procedural fairness is required
o (2) The nature of the statutory scheme. If there is no appeal process (the decision is final), will want to ensure that the
initial decision is well-informed. Suggests more procedural entitlements
o (3) The importance of the decision to the individuals affected.
 Important interests: property, employment, solitary confinement, immigration
o (4) The legitimate expectations of the claimant. Refers to state conduct over a period of time that gives rise to the
expectation that people will act in accordance with past practices (similar to estoppel). Can be grounded in statute, past
practices, and/or official guidelines.
o (5) Respect for the choice of procedures made by the agency themselves. This is particularly the case where the statute
gives the body the ability to choose its own procedures.
 Reflects flexibility and sensitivity to the types of decisions being made
Procedural Fairness and Constituional Law: When to use the Charter over common law
-
Problem: what can you do to defend a client’s right to PF when statute expressly excludes that right at CL or CL guarantee of PF is
insufficient under the circumstances?
AKA: When must lawyers resort to a constitutional claim for procedural fairness?
o Resort to constitutional law (s.7 of the Charter)
 Constitutional and Quasi-Constitutional procedural sources become necessary in 3 contexts:
 Enabling legislation excludes duty of fairness: legislation expressly denies certain procedural
safeguards or provide a lower level of procedural safeguards, leaving no room for CL supplementation
 No duty of fairness owed at CL: constitutional or quasi-con provisions may establish procedural claims
in circumstances where none existed before at CL
 CL duty of fairness needs to be strengthened: these provisions may mandate a higher level of
procedural protections than would application of the CL to the challenged species of admin decisionmaking
Procedural Fairness: Context & Threshold Questions
General principle: despite the expansion of procedural fairness protections, some decisions still do not attract this type of protection.
15
Distinctions & Classifications of the Nature of the Decision: Evolution


Historically, the following decisions traditionally fell below the threshold for natural justice:
o Preliminary decisions (i.e. not final)
o Decisions bearing on mere “privileges” rather than rights
o Administrative/Ministerial decisions (contrast to judicial decisions)
Erosion of the traditional judicial/administrative distinction:
o Nicholson: the focus turned to a contextual analysis focusing on the impact or effect of the decision – refers to a
spectrum (no longer “all or nothing”)
o Martineau v Matsqui Inmate Disciplinary Board:
 SCC rejected the argument that certiorari is only available to review judicial or quasi-judicial decisions and held
that it could be used to enforce procedural requirements generally.
 Determinative question is not whether there has been breach of prison rules but whether there has been a
breach of duty to act fairly in all the circumstances.
 Martineau v Matsqui Institution: A duty to procedural fairness arises whenever an administrative decision
affects the “rights, privileges, and interests” of a claimant (employment, prisoner’s rights, worker’s
compensation benefits, etc.).
 So if in prison, when does procedural fairness trigger? If you’re going to put someone in solitary
confinement or otherwise punish them (take away early release), that affects someone’s privileges and
interests (may not have a right to early release, but they definitely have an interest in early release),
then procedural fairness may be triggered.
 If there is no longer a “hard and fast” rule that determines the scope of procedural fairness, at what point does
the duty of fairness fade out of sight?
 Intuit case says these rights fade out of sight at a certain point
 Are you entitled to procedural fairness, even if the impact of the decision is diffuse? Does the duty of
procedural fairness attach to “legislative” or “policy-making” decisions, which affect hundreds or thousands of
people?
o Cardinal v Director of Kent Institution: involved right of a prisoner to a fair hearing when officials are considering solitary
confinement. Stated as a general common law principle that a duty of fairness lies in every public authority making an
admin decision which is not a legislative nature and which affects the rights, privileges, or interest of an individual
 Right to a fair hearing is an independent, unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an admin decision is entitled to have
 Le Dain’s decision indicates a new threshold distinction (in obiter, but indicative of an emergence of a new
classification process):
 Legislative and general/preliminary: no duty to act fairly
 Administrative and specific: duty to act fairly
o Inuit Tapirisat: The existence of any duty of fairness no longer depends on classifying the power involved as
administrative or quasi-judicial. Instead, consider the nature of the body and the nature of the statutory scheme
Modern Threshold Considerations
Procedural fairness applies whenever a public body has the power to decide any matter affecting the rights, interests, property,
privileges, or liberties of any person (Martineau).
 The duty of fairness is not restricted to judicial functions
 Purely legislative/ministerial decisions on grounds of public policy: typically little protection
 Where personal or property rights are targeted directly, adversely, and specifically: procedural protection will be afforded
The Spectrum: “Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard that must
be met by the statutory body. Above all, flexibility is required in this analysis. There is, as it were, a spectrum.” (Homex)
 Ministerial/Legislative/Policy Decisions: decisions that affect many people, general application – little or no procedural
protection
o Canadian Ass’n of Regulated Importers
o Inuit Tapirisat
o Per Reference re Canada Assistance Plan - The rules re: procedural fairness do not apply to a body exercising a legislative
function. Courts do not intervene in the legislative process. The formulation of a bill is part of the legislative process.
The doctrine of legitimate expectations does not apply – it would paralyze the parliamentary system.
 Matters affecting rights, interests, property, privileges, or liberties: duty of fairness. Decisions approaching the judicial end of
the spectrum.
o FAI Insurances v Winneke
o Homex
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Decisions of a Legislative and General Nature
Canada (AG) v. Inuit Tapirisat of Canada (1980 SCC)
Facts: Usually, a Crown corporation will establish a telephone grid for urban centres AND for rural areas. Some areas had that Crown
corporation become a private corporation, for profit. Like Bell. In order to regulate Bell’s rates, Bell requires government approval for
raising customer rates (to prevent Bell, a monopoly in some areas, from gouging customers). CRTC regulates utility rates, Bell made an
application for a rate increase. The Inuit Tapirisat are a community advocacy group, and intervened to oppose parts of the application – it
wanted the CRTC to condition a rate increase on an obligation to provide better service to Northern communities (can’t raise rates until
service improves in region Intuit represents). CTRC recommended the rate increase without conditions so there was an appeal to Federal
Cabinet (under Enabling Legislation, Cabinet has power to reject CRTC decision or send it back with comments) by Inuit Tapirisat. Inuit
Tapirisat was given the opportunity to make written submissions at the appeal. Bell Canada also makes submissions, which are shared
with Intuit. Cabinet meets, and refused the appeal. Intuit brings application for judicial review, saying it had a right to procedural fairness
at common law, which wasn’t observed by Cabinet, so the decision should be quashed and sent back. Fairness: Applied in Federal Court
for a declaration that they had a procedural right to participate in hearing, have everything shared with them so they can respond.
Issues: was there a duty of fairness incumbent on Cabinet in dealing with the Inuit Tapirisat to entitle IT to a hearing?
Held: No - this was a broad policy decision and would be impractical to allow a hearing. Review: There is a narrow band of decisions that
do not attract PF (PF does not apply to legislative decisions – nature of decision being made; character of decision maker – as you get
closer to seat of power (ministers responsible to house) less PF required; effects of decision – this decision affects many people, not just
one or two people like in prior cases – rate setting decision affects thousands, so how can those thousands affected by decision be given
an opportunity to respond?)
Reasoning:
The existence of any duty of fairness no longer depends on classifying the power involved as administrative or quasi-judicial.
Instead, consider the nature of the body and the nature of the statutory scheme. While a duty to observe procedural fairness
need not be express, it will not be implied in every case.
Here essence of the principle of law in operation is simply that in the exercise of a statutory power, the Governor in Council, like
any other person, must keep within law as laid down by Parliament
o This is a pure Legislative action, so may not trigger procedural fairness
Key: construing the statutory scheme as a whole in order to see what degree, if any, the legislator intended the principle to apply.
Here, Parliament did not legislate a duty of fairness (criticism: this may be inconsistent with the Nicholson analysis of implying a
common law duty of fairness).
Ratio: Certain rights demand a lesser degree of procedural fairness than others. In particular when a large number of people are affected,
must balance nature of interest affected with practicalities of modern government. Here we have a decision affecting thousands –
“legislative action in its purest form”, and notice requirement is impractical, can’t hear every person’s response. Hearing evidence from
CRTC in private is acceptable as utility rates are complex issues, and politicians must be able to rely on appointed experts.
Class notes:
 How did the SCC determine whether Inuit Tapirisat was entitled to procedural fairness? What sources of law did it consult to
determine this question?
o Enabling Legislation – Transportation Act - outlines the powers of Cabinet to vary or rescind any order made by the CRTC
o Common law (Cooper, Nicholson – does Intuit have PF right that builds on rationale in these cases?)
o Regulations (from Baker)
o Department guidelines (Baker)
o International law (Baker)
 Enabling Legislation says: Cabinet may, at any time, on petition of interested party, rescind any order or rule of the CRTC, may
allow an appeal, but does NOT say anything about disclosure. Check common law under PF
 Common Law: when does CL PF apply? When someone’s rights, interests and privileges are affected. Where Intuit’s rights,
interests or privileges affected by this decision? Court does not consider this. What interest does this effect: property (no),
economic (maybe, they need good value for money for the rates they pay).
 Is Estey J.’s analysis of the threshold question consistent?
o Character of decision: legislative decision, therefore no procedural fairness. Estey recognizes that in Nicholson,
characterization was left behind (judicial vs non-judicial), and agrees we should leave it…then adds a new
characterization and adds PF/no PF to it. Not too consistent
 On p. 117 of the text, Estey J. states that:
“the discretion of the Governor in Council is complete provided he observes the jurisdictional boundaries of s. 64(1)?” Do you
think the duty of fairness is extinguished in this case or was there a duty with minimal content?
o Cooper said omission of legislature will be supplied by justice of common law, fact that nothing in section 64 mentioning
procedural rights doesn’t mean cabinet can make any decision it wants, if you extend decision from Nicholson, they still
have to act fairly and not arbitrarily, which means notice and opportunity to respond
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
Under what circumstances, if any, do you think a duty of fairness should be imposed on Cabinet decisions via the common law?
Which of the following rationales best explain the result in Inuit Tapirisat:
(1) the “legislative functions” rationale - recourse through democratic process, lobbying government, holding them to
account on house floor. Courts don’t get involved in this kind of thing
(2) the character of the decision-maker rationale – hierarchy of administrative law: low level government officials that
review files (make decisions of who gets to stay in Canada, for example) up to Cabinet and Ministers, which has other
checks about decisions so owe less PF (by virtue of fact their decisions are reviewed by Legislature, and not the courts)
(3) the diffuse interests rationale – Practicality of giving notice to all parties, as Intuit wants, has some bearing on s. 64.
Many subscribers to Bell, all who will be affected by decision, and all subscribers should arguably receive notice before
decision is made…but this is impractical. Nature of interest affected is very diffuse, and category of affected parties is SO
large, that if you impose procedural hurdles, it’ll make regulatory function impractical, inefficient, and unwieldy.
Unrealistic to expect notice to everyone affected by this decision
Cabinet decisions:



Per Inuit Tapirisat, should construe the statutory scheme as a whole in order to see what degree, if any, the legislator intended
the duty of fairness to apply. Suggests that cabinet decisions won’t be subject to procedural obligations.
o Question: perhaps this case meant that there was a duty of fairness, but it was minimal? But there is language that
suggests that cabinet decisions will not normally have a duty of procedural fairness
o This is less of a factor after Knight and Nicholson
FAI Insurances v Winneke (Aust HC): involved legislation that required workers’ compensation insurer approval from Cabinet,
approval that had been given annually for 20 years. Approval was withheld, FAI made a request for information and an
opportunity to make submissions.
o FAI succeeded at the HC, based partly on a “legitimate expectation” of renewal
o Court rejected the argument that Cabinet is not subject to any implied obligation of procedural fairness –
granting/refusal an application is not a matter of general policy, but specifically refers to the applicant
Conclusion: the mere fact that the decision-maker is Cabinet does not automatically prevent the making of a claim to an
entitlement to procedural fairness
o Where the decision is directed at a specific individual, the function will not be classified as legislative despite the
political nature of the decision maker
Bylaws and Rulemaking:
Homex Realty and Development v Wyoming (Village) (SCC, 1980)
Facts: Property developer building a subdivision, dispute arises over who should bear the cost of servicing the lots in the property
development. Developer wants Municipality to pay and municipality says developer should pay larger share because he is profiting.
Without giving notice, the village re-zoned the subdivision (revokes the plan, passed bylaw saying subdivision can’t happen), significantly
decreasing its property value. Homex applied for judicial review to quash the zoning bylaw. Argue that municipality acted unfairly, should
have given Homex notice that it was considering this type of bylaw and given Homex opportunity to respond. If Homex proves this, the
bylaw will be found null and void. Developer realizes politicians against them, so hope courts will set things right
Issues: Was there a duty of fairness owed to the property developer? Was it breached?
Held: A duty of fairness was owed and breached. But, the property developer is not given a remedy because of the inconsistent and
evasive conduct of its principals (“clean hands” – prerogative relief is discretionary – want an equitable remedy (want court’s help), must
have clean hands (deserve courts intervention)).
 Criticism: court should have sent the decision back to the municipality, confident it would still pass the bylaw, with a fair
approach. Admin law shouldn’t be about private conduct being unseemly – it should be about public conduct having integrity.
Likely wouldn’t be decided the same way today.
Class Notes:
 Municipality argues Intuit: this is pure legislative function, we make a bylaw, pass it, and if there’s a problem they can oppose it
using democratic means, not courts and PF.
o Court does NOT buy this argument – municipality does not have same prestige as Cabinet or Federal decision makers.
 How would you characterize the decision made by the municipality in this case? Would you focus on the character of the decision
(a legislative function, pure legislative decision), the character of the decision-maker (a legislative council) or the impact of the
decision (general welfare and property rights)?
o Impact of decision: do these affect certain parties, and so these parties get PF, or is it affecting many people? No, this is
a direct battle between the two groups, individual interests being affected, so PF should happen here. This affects
property rights of Homex (Cooper, common law), so PF triggered
 Criticism: other people in the municipality do have an interest in this, however, as they are interested that
public finances are well-managed (general welfare), so no duty of fairness
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
Two ways to characterize: property rights of Homex vs general welfare of people of municipality and
involves finances of the municipality
o Arguments: in favor of municipality are legislative function and it’s a legislative council, or it affects general welfare, so
no PF. In favour of Homex: it really only affects Homex, and affects their property rights, so PF is triggered.
 How does Dickson J characterize the municipality’s decision? How, if at all, does his analysis differ from Estey J’s regarding the
threshold question whether the duty of fairness applies?
o See Dissent
 Why did the SCC deny relief in this case? Do you think the result was appropriate?
o Court does not grant remedy, because Homex was acting inappropriately. This has deep roots in Admin law: judicial
review of admin action at common law was seen to be a remedy that was granted at discretion of court. King’s court
could intervene at their discretion. Not simply a case of establishing a breach of PF but must show court they should
intervene on your behalf. Controversial idea today. Today: every right has a remedy. Homex had procedural rights, so at
the very least, should have sent decision back to municipality
Dissent (Dickson): Treats this as a Cooper case
Nothing in statute said Homex gets PF, like in Intuit, and in Intuit they didn’t get PF. BUT, this is not legislative decision but quasijudicial, so PF. This is a bad argument; using legislative in one case and quasi-judicial in another depending on what outcome the
court wants.
Before a public body can limit or abrogate the property rights of citizens, it must first give the individuals concerned an
opportunity to be heard unless there is an express declaration to the contrary (per Cooper).
o Here: the municipality’s bylaw directly and detrimentally affected the lands of Homex and only those
o Someone’s property interests/rights were destroyed, this requires PF (Cooper)
The public interest is best served by affording the private interest full disclosure and an opportunity to be heard.
o Cannot simply label an act as “legislative” to dispense with fairness.
A duty of procedural fairness is available whenever a public body has the power to decide any matter affecting the rights,
interests, property, privileges, or liberties of any person (per Martineau).
o Right to PF does not spring from the fact that there are competing groups or individuals, some of whom happen to
oppose the bylaw – it results from the fact that the bylaw interferes in particular with the personal property rights of this
one person
 Presence of competing public interest does not diminish a citizen’s right to PF
Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard. Flexibility is
required – there is a spectrum.
o A purely ministerial decision on grounds of public policy will typically afford the individual little or no procedural
protection.
o Dickson is emphasizing that this case is about property rights
 Here: not a bylaw of wide and general application – aimed deliberately at limiting Homex’s individual rights
o Affects Homex’s property rights, and like in Cooper, when making a decision that affects someone’s property rights, duty
to PF is triggered
o Therefore despite multiple exchanges, hearing requirement not satisfied since Homex did not know municipality
intended to pass the bylaw.
Majority (Estey): the action taken by the village was not legislative, but was quasi-judicial in character, so a duty of fairness is owed.
Agreed with Dickson that hearing requirement not satisfied
o Criticism: Estey here is using old terminology and the administrative/judicial distinction
Ratio: policy decision but had an immediate and specific target, an individual – thus PF was owed (consider the impact of property rights)
 Per Homex, where a bylaw or subordinate legislation is general in nature, claims to procedural entitlements (even by those
affected immediately) may be diminished or eliminated
 Legislative decisions that affect property rights entitle the parties to fairness (Homex)
Policy Making:
Seems clear that where impact of decision is diffuse, affecting a broad spectrum of the public in generally undifferentiated
manner, claims to PF rights will be hard to justify
Dilemma: identifying which decision are not so general as not to pass the threshold as well as the variation in status among those
claiming participatory rights in relation to certain policy decisions.
o Overall: Legislative and policy decisions attract little or no PF
Procedural Fairness in Context - Questions to ask about a case
 How does one determine whether a decision-maker is bound by the duty of procedural fairness?
 How does one determine if the nature of the decision is “legislative”, “ministerial”, or “policy driven”?
 Conversely, how does one determine if the decision affects individual rights “directly, adversely, and specifically”?
19

Martineau v. Matsqui Institution: Procedural fairness applies whenever an administrative decision affects “any matter affecting
the rights, interests, property, privileges or liberties of any person.”
Canadian Association of Regulated Importers v Canada (FCA, 1993)
Facts: Minister changed the quota system for the importation of hatching eggs, which significantly affected historic importers. Prior to
this change, the industry was basically unregulated. Importers challenged the change, arguing that they had not been consulted. Trial and
Fed Ct found decision affected the economic livelihood of a small group of farmers and thus PF needed (individualized economic effect Martineau v. Matsqui Institution)
Issues: Can Minister of Agriculture change the number of the quote system without consulting existing licence holders? Did the importers
have a right to be consulted?
Held (Majority): this was a policy decision (legislative – Inuit Tapirisat), and the principles of natural justice do not apply to policy making.
There was no requirement to give notice – no such process is contemplated under the legislation – no requirement for notice and
opportunity to comment (different from what SCC said in Nicholson)
Dissent: decision traditionally classified as legislative if they set out general rules that apply to large # of people
But here: significant private interest aspect, as well as public interest
Not sure this was legislative
While decision may have been general, it was general only to a small segment of population and its application was very
particular
o Only 84 business would be affected so wouldn’t have been onerous to afford PF
o Could have been general notice like newspaper ad – did not require personal notice
Classifying a decision as being policy in nature does not immunize it from judicial review
o Must focus on effects of decision: here considerable economic loss to applicants
o Expect public decision makers to act in a certain way and moreover even though there is a public interest element, this
decision affects the applicant farmers in a special way.
Broad Discretionary Powers Affecting Individual Rights:
 When a decision affects a specific individual, a duty of fairness is owed. Even if the granting of welfare is a privilege, once an
individual receives support and relies on it, they have an interest in the matter (Re Webb)
o Case is noteworthy because Webb is claiming fairness for privilege of benefits that she doesn’t own, but acquired as a
result of the welfare state
o Potentially reflective of the property rights in a lease?
Re Webb and Ontario Housing Corporation (ONCA, 1978)
Facts: Ontario Housing Corporation leased apartments at low rates to low income persons. Webb was a tenant – her tenancy was
terminated because of problems with her childrens’ behaviour. She was sent 2 warning letters and a formal warning, in addition to visits
from OHC community relations worker. She made an application for judicial review of the decision on the basis she wasn’t given the
opportunity to respond before the eviction notice was issued.
Issues: Was Webb owed a duty of procedural fairness because her interest in the case is sufficient, and the right to participate?
Held: Yes. But the duty of fairness was complied with in this case.
Reasoning:
Statutory Powers of Procedure Act not found to apply - this was not a judicial decision or quasi-judicial
o Determination of whether to accept W as tenant and subsequently to terminate that tenancy was part of the
administrative affairs – not acting as a tribunal
o The statute didn’t apply because the terms of definition in the Act excluded OHC. Ms Webb’s counsel had to use
common law instead (when building a case for PF, start with statutes because it may give you procedural rights (in
Alberta we have the Alberta Administrative Procedures and Jurisdiction Act)
But question remains even if acting administratively was OHC required to treat fairly?
o Property right versus privilege: debate in this case as to whether rights of PF be extended to people who were claiming
benefits they didn’t own but acquired by virtue of Welfare State
OHC carrying out an important public function in providing subsidized housing. Once Webb became a tenant, she acquired a real
and substantial benefit because of her reliance on welfare. The decision to grant her this benefit did not require a duty of
fairness.
o But, once she became a tenant, she was owed a duty of fairness. She now had a lease for subsidized housing, which
gave her a substantial interest in the housing (not specific if property right or economic right). Take her lease away she
may not die, but her right to security of the person is gone (this case is pre-Charter). OHC in exercising power to
terminate and thereby deprive W of the benefit of the lease was required, based on circumstances, to treat her fairly by
telling her of the complaints and giving her an opportunity to respond
o While subsidized housing is a privilege, there are other rights at play here (Martineau – which was not decided yet)
20
o
She has a lease, she has property rights. She can exclude people from entering her house. So a property right
 Economically and socially disadvantaged individuals are in greatest need of protection from arbitrary and
unconscionable acts of public authorities
 Not just an economic interest, but more profound, if people who need subsidized housing lose that
housing, their quality of life is greatly affected
Arguments against this: no one has a right to subsidized housing, so if you don’t qualify for one, no one infringed your property
rights. And even if there is a duty of PF here, it was satisfied, because even though there was no formal hearing, Ms. Webb had
adequate notice of what the concerns were and given an opportunity to respond. And in all the cases, all the courts say is you get
notice and a chance to respond, no details about what adequate notice is or adequate opportunity to respond is
Here: No need for formal notice or formal proceedings as long as the person adversely affected is advised of the case against
them and permitted to give an answer through the investigating body.
o Duty was discharged here; she received notice and understood the allegations. She was given an opportunity to remedy
the situation.
 Social worker came and talked with her. Was also given letters as well, but she is illiterate. But, her kids went to
school, and even if kids didn’t read it to her, a social worker showed up to talk to her in person. So notice was
satisfied
 Opportunity to respond: she had a chance to respond to the social worker who came to visit her
o Duty to PF is required in this type of decision, but that duty was not breached
Ratio: Recognizes that holders of privileges (ie. state assistance) may be entitled to some measure of PF before those privileges are cut
off or removed. IOW, no longer precluded from making a claim of PF on the basis that benefits are a privilege not a right. But also
acknowledges that duty of fairness can be satisfied in informal ways. Nicholson analysis: can be broader situations where PF applies.
In years leading up to this case, courts would be unlikely to conclude she had duty to PF, because she did not have a property interest or
an economic right. She had a state created benefit, and the state can give and take back benefits, you do not have an automatic right to
keep a benefit. But this case said once you give that benefit (lease), it can give rise to other procedural rights, so you CAN’T just to decide
to take it away one day. Now have some duties like notice and opportunity to respond to abide by
Inspections and Recommendations:
 Traditional rule: no right to fairness at the investigation/ recommendation stage, because nothing is being decided (Guay v
Lafleur). Preliminary decisions.
 Change of the doctrine in England: an investigation can have wide repercussions and significant consequences. There is a duty
of fairness (Re Pergamon Press)
 Canadian approach: rules of natural justice should apply to recommendations where individual interests are significantly at stake
(Re Abel and Advisory Review Board).
o But, does this establish a general duty of fairness at the recommendation stage, or just an exception to the general rule
about preliminary decisions?
o Key: focus on the type of interest engaged, not whether the decision should be characterized as preliminary.
o At the next stage (the final decision stage), the duty of fairness may not arise, as the public policy element lingers (see,
e.g. Inuit Tapirisat)
 But, duty of fairness will not always arise at the investigative stage: where the investigator has no ability to affect the rights of
individuals.
o Can be a comparison made to the criminal investigation context – especially in the context of human rights
investigations (Dairy Producers’ Cooperative)
o Fairness is a flexible concept, its content varies with the nature of the inquiry and the consequences for the individuals
involved (Irvine v Canada)
o Courts should remain alert to the danger of unduly burdening and complicating the law enforcement investigative
process (Irvine v Canada)
Re Abel and Advisory Review Board (ONCA, 1979)
Facts: Advisory Review Board was created under the Mental Health Act to review annually all mental patients confined in psych
institutions after being found NCR. Report was prepared and provided to the Lieutenant Governor, including recommendations for
release. Lawyers for patients asked for disclosure of the files. Request was refused, application was made for review.
 If found NCR by reason of mental illness, the person is sent to a mental hospital for indefinite time. Can only be released if a
review panel populated by superior court judge and treating psychiatrist from that institution recommends their release, saying
they are no longer a threat to public safety. Concern about people who are in this situation: if they aren’t NCR, the idea of
punishment in traditional criminal sense is no longer appropriate (no mens rea) but you don’t want them indefinitely held. So
every year there is an annual review of their case file. Brought before a review board and treating physician makes a
recommendation if they are a threat.
21

Recommendation about release goes to Lieutenant Governor, which is really provincial cabinet. Provincial cabinet makes final
decision based on this recommendation (like Inuit: CRTC made a decision that was appealed to cabinet, in this case, Review Board
makes recommendation, and decision made by Cabinet).
 The problem from Abel’s point of view: Mental Health Act says that the hearing process can be held in camera. In traditional
criminal hearing, the public is allowed in. For NCR review, can exclude public, and even exclude the person who the decision is
about. The person who’s liberty is being decided may not even be allowed in room. Also, the lawyer wanted to look at some
material, and the Review Board didn’t want to let him (probably because a treating psychiatrist might not want the patient to
know what they’re saying about them)
 Cabinet’s decision can be argued to follow Inuit case reasoning: cabinet is making legislative decision, so no PF, and also this is
public safety, affects many, so no PF.
Issues: Are the patients entitled to procedural fairness such that this info should be disclosed to their lawyer?
Held: Yes.
Reasoning:
A patient’s only hope of release, their right to liberty, lies in a favourable recommendation by the Board suggests large degree of
PF, can’t be shut out from that process (and when will cabinet ever overrule a negative recommendation). Therefore, want
disclosure, to ensure recommendation is made with good reasons
o Baker reason: prevent Baker situation – bias from Reviewer (“this patient is like all the others and is crazy”)
Decision affects one person directly
Not a property interest, economic interest, etc. this is someone’s physical liberty, this is extremely important
o But serious policy concern over public safety – can sometimes cause courts to shy away from imposing PF (ie.terrorism)
So how would you characterize the nature of the decision in this case? Legislative? Public policy? Judicial? Probably use Judicial,
due to one person’s liberty is at stake. Therefore, PF, including access to file
The rules of natural justice should apply, notwithstanding that the proceeding will result in a recommendation only.
Functional test for discerning the exceptional cases where duty of PF will be triggered at preliminary state:
o Look at degree of proximity between (1) the investigation and the decision AND (2) the investigation and the exposure
of the investigated individual to harm
 Here: Proximity is great and acceptance of Board’s recommendation has significant impact on the freedom of
the applicant
If patients aren’t given access to records they don’t know what case they have to meet
o Focused on the impact on the individual
o Reports contained allegations of fact that applicant would want to refute
o What was need was consideration of whether those reports should be disclosed
 Didn’t explicitly say records had to be disclosed
Remedy: issue goes back to the Board for consideration. Court has sent a strong message that the records should be disclosed.
Ratio: Even post Nicholson, not all recommendatory and investigative functions will attract an obligation of PF. This case provides a useful
functional test for discerning the exceptional cases in which duty will be triggered. But it does not set out a bright line standard.
Dairy Producers’ Cooperative v Saskatchewan (Human Rights Commission) (Sask QB, 1994) – Contrast to Abel
Facts: Complaint of workplace sexual harassment. Commission appointed an officer to investigate and provide a recommendation on
whether a board of inquiry should be convened to adjudicate the complaints. A tripartite investigative process – an investigator decides
whether there are reasonable and probable grounds to find that an offence has been committed (goes to work place and interviews
people, and decides if there’s a prima facie case to send to the settlement stage), then a commission is responsible for settling, if no
settlement – a board of inquiry is struck to adjudicate. Company sought better particulars of the complaint, wanted disclosure of the
complaint details and did not get it. Went to settlement stage. Parties did NOT settle. Commission decided to send the matter to a board
of inquiry. Company applied for an order quashing the establishing of the board of inquiry, arguing that they were owed a duty of fairness
leading up to the decision to convene a board of inquiry: they were owed disclosure in a timely manner.
Issues: Was the company owed a duty of fairness at the investigative stage, was the company owed disclosure?
Held: No – Investigating officer had no duty to disclose, but once the Boar of Inquiry had been struck, a duty to PF arose which was
satisfied by the letter
Reasoning:
The investigating officer had no power to affect the rights of the applicant – at most investigator could report that probable cause
existed.
o Investigating officer was conducting investigator, but could not affect employee’s rights, so duty of PF was minimal
o Martineau: person’s rights, interests, liberty being affected, duty of PF is triggered. In this case, investigator cannot
affect any of these rights, just conducts investigation, therefore, duty of PF is not triggered.
o Wright J is focusing on effect of investigator’s decision: does it impact rights?
 Is this the right test to use? Another test that could be used is that the nature of the decision is
preliminary/investigative/only recommendation, so no PF as they fall below threshold for PF (similar argument
made in Abel by government)
22
Nor were settlement negotiations a determination of the applicants rights – only after process was unsuccessfully complete could
the Commission establish Board of Inquiry
o Then it would have had to provide the applicant with substance of evidence before hearing
o Court suggests that only board’s decision affects employer’s right and then PF is required.
 Without prejudice letter satisfied this duty of fairness
Board of Inquiry required procedural fairness, like what evidence is being led in the hearing, etc.
Potentially a public interest concern – giving procedural rights to the employer at this stage might cause difficulty for the
employee complainants and discourage the lodging of complaints.
Ratio: PF not generally owed in investigative/preliminary stages – must consider context – no formal process in place and giving
procedural rights to employer at this stage might have negative consequences. There is a duty of PF at some point but not at this point
-
Procedural Fairness: Interaction with Constitutional Law
Procedural Fairness and the Constitution
Necessary to resort to constitutional sources in 3 circumstances:
1. Where legislation expressly denies certain procedural safeguards or provides a low level of protection, leaving no room for
common law supplementation (e.g. Singh case) aka: When the statute expressly excludes the common law duty of fairness – such
as disclosure. So may need to use a Constitutional argument
2. When the common law duty of fairness is unlikely to apply – Duty of Fairness doesn’t apply such as when looking at a decision
that looks like a legislative decision like in Inuit, or the decision is preliminary/investigatory. In these cases, may want to raise
alternative argument: PF at common law but if that fails, court should consider a Constitutional argument
3. When you want to argue for an especially onerous duty of fairness, which implies trial-type procedures. Courts may be reluctant
to impose full trial-type procedure on admin boards, so may need to use a Charter argument for PF. If can do so, courts are more
likely to push the duty to PF towards the higher end of the spectrum (rights to a lawyer, right to cross-examine, right to an oral
hearing). For example, if section 7 is triggered, the nature of the interest affected is very compelling, so should get more PF, than
someone whose economic interest is the only thing at stake. Economic interests are not as protected as some other interests.
What types of threshold questions must one address in order to determine whether a duty of procedural fairness is required under the
Canadian Bill of Rights or the Charter of Rights and Freedoms?
 Section 32 Charter argument – Charter applies to government decisions – even if you get past this, and make a section 7
argument, must show court that one of the enumerated rights is at stake (life, liberty, and security of the person is at stake). If
you fall outside these rights, no section 7 argument.
 Canadian Bill of Rights: Broader than the Charter in one respect: mentions property. So threshold for Canadian Bill of Rights is
LOWER than Charter when someone’s economic or property interests are enganged because those are protected in Bill of Rights
(Quasi-Constitutional argument)
 Canadian Bill of Rights is more demanding in one sense as it only applies to Federal decision makers, will not apply to provincial
admin decision makers.
Constitutional and Quasi-Constitutional Sources of Procedure
1.
The Canadian Bill of Rights – A federal statute, so application is confined to the federal domain.
a. Purports to be applicable to both prior and subsequent legislation – declares its primacy over all other legislation unless
the legislation expressly provides that it overrides the Bill of Rights
b. Presumably broad enough to encompass decisions & actions of agencies empowered by federal law
c. Overall, unlike the Charter, there is an argument that Bill of Rights corresponds generally to judicial review under Federal
Courts Act
d. Particular sections:
i. 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without
discrimination by reason of race, national origin, colour, religion or sex, the following human rights and
fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not
to be deprived thereof except by due process of law….
ii. 2. Every law of Canada shall…be construed and applied as not to abrogate, abridge or infringe…any of the rights
or freedoms herein recognized and declared, and in particular no law of Canada shall be construed or applies so
as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for
the determination of his rights and obligations…
2.
The Charter – applies throughout Canada but clear that it is not coterminous with judicial review
a. S.32(1) restricts application to Parliament and government of Canada and legislature and Provinces
23
b.
i. Restricted in Admin law arena to bodies or activities which can be brought within concept of government
1. Applies to broader range of decision makers than Canadian Bill of Rights
2. McKinney case: Does Charter apply to University authorities? In one case, SCC concluded that in
context of that case, University was NOT a government authority for purposes of the Charter, because
duties of managing a University are not a government duty. Universities are set up by statute but
running them isn’t a government duty. This is a narrow view of what section 32 applies to.
3. Eldrige Case: Does Charter apply to Hospital Boards? In one case, a Hospital Board decided not to
provide translation services to deaf people. In this case, SCC concluded that Charter DID apply to
Hospital Boards, even though they have substantial independence from government. But hospitals are
charged with carrying out a specific government program: health care. So this is a broader
interpretation of what section 32 applies to.
Main source of procedural protections: s. 7. Provides that 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.
i. Baker: Section 32 – immigration review board is NOT a government agency. If use Mckinney argument: fact that
immigration board has express (in statute) or implied (history of government leaving them alone)
independence, Charter does not apply. If use Eldridge approach: even though independent board or tribunal, it
is charged with implementing a specific government program, so Charter applies. But, unless you can show
client’s right to life, liberty, and security of person is engage, Charter argument won’t go anywhere. Baker was
able to show this
ii. Abel: Charter argument – if you can show that Review Board is a government agency (using Eldrige argument,
that is likely), then need to use Section 7. Someone is in mental institution and can’t leave. He is stuck there.
Liberty interest is therefore at stake, so can use Charter argument.
iii. Webb – case concerning subsidized housing. Government program dispensing benefit to people below a certain
income. This decision was rendered before Charter. Had it arisen AFTER Charter, Webb’s section 7 interest were
likely engaged – security of person (right to life is difficult to show unless you can show some imminent threat
that will give rise to death/bodily harm (likelier can show this in refugee case, where deportation leads to a
country with legitimate fear of torture/imprisonment by state officals); right to liberty – her physical liberty isn’t
affected, as her movement isn’t restricted if you take away her house, so no.) Security of the person –
interpreted as a right to be free from serious state imposed psychological stress. This could arguably arise in a
case like Webb. Therefore, could use section 7 for duty to PF in Webb, had it occurred after Charter.
iv. For Canadian Bill of Rights, must ask if a Federal decision maker. If so, can make certain arguments that you
can’t make under section 7 of the Charter, because Bill of Rights includes enjoyment of property. Charter
applies to both provincial and federal (still section 32, which may be tricky if the admin/tribunal says they are
independent from government and must act impartially from government, this could raise a section 32
argument). Then, after section 32 argument dealt with, look to section 7 to see if person’s right to life, liberty
and security of person is engaged by decision.
Key Differences between the Bill of Rights and the Charter:
1.
2.
3.
4.
Use of the terms “individual” and “person” in the Bill of Rights as opposed to “everyone” in the Charter
a. SCC has held that “life, liberty, and security of the person” in s. 7 are attributes possessed only by natural persons, and
thus does not apply to corporations
b. Whether the same holds true for s. 1(a) and 2(e) of the Bill of Rights has not been definitively resolved by the SCC
The inclusion of “enjoyment of property” in s. 1(a) of the Bill of Rights
a. S. 7 of the Charter deliberately did not include protections for property rights
b. To date, s. 1(a) of the Bill of Rights has not been frequently invoked
The attachment in s. 2(e) of procedural guarantees to the determination of rights and obligations
a. Initially the term “rights and obligations” was interpreted narrowly and restricted to the taking away of “strict legal
rights”
b. However, in Singh, 3 members of the court held that the immigration authorities came within s. 2(e) when deciding on a
convention refugee claim, which involved determining whether the claimant had a statutory right to remain in Canada
c. Thus, the term has now embraced the investigation and hearing of a complaint of discrimination under the federal
human rights legislation on the basis that those proceedings involved the determination of whether the respondent had
breached his legal “obligation” not the discriminate, for example
The Bill of Rights does not contain an equivalent to s. 1 of the Charter
a. But, the QCCA has held that in determining the demands of the principles of fundamental justice for s. 2(e), the court
should engage in a s. 1 style balancing process akin to that in Oakes
24
The Bill of Rights

Applies to the “laws of Canada” – includes both Acts of Parliament and any order, rule, or regulation thereunder, and any law in
force in Canada
o Broad enough to encompass decisions and actions by those deriving their powers from federal law
Section 1(a): the right of individuals 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.
 Confers procedural protections against the deprivation of property (notice and an opportunity to contest), but only in an
individualized, adjudicative setting (Authorson)
o Rationale: the only procedure that any Canadian citizen is entitled to is that the legislation receive 3 readings in the
House and Senate, and receive Royal Assent
 Does NOT grant substantive rights (i.e. won’t protect against the expropriation of property by the passage of unambiguous
legislation) (Authorson)
 Requires a legal right to be at stake (Singh)
Section 2(e): no law of Canada shall be construed of, applied so as to deprive a person of the right to a fair hearing in accordance with the
principles of fundamental justice for the determination of rights and obligations.
 Does NOT impose a duty on Parliament to provide a hearing before an enactment of legislation – only applies to the application
of law to individual circumstances in a court/ tribunal proceeding
 Will not impose an oral hearing in all cases, but consider (1) the nature of the legal rights at issue; (2) the severity of the
consequences; and (3) whether credibility is a central issue (Beetz in Singh)
The Charter
Applies throughout Canada, but is restricted to Parliament and to bodies or activities that can be brought within the concept of
“government”
 But, also includes a statutory authority that is not in general “government” but is charged with responsibility for the effectuation
of government programs
 Bodies exercising statutory authority are bound by the Charter, even though they may be independent of government (Blencoe)
 Universities are independent of government and so not bound by the Charter (McKinney)
o But, independence is not determinative (Blencoe)
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.
1. Threshold question: “everyone” encompasses citizens and non-citizens. Broad application.
2. Has the right to life, liberty, or security of the person been infringed? Each is a distinct concept. No distinction between rights and
privileges.
a. Liberty: engaged where state compulsions or prohibitions affect important and fundamental life choices (Blencoe). Not
confined to physical restraint, protects freedom of movement.
i. Includes the right to choose where to work and to pursue a livelihood (Wilson)
ii. Includes the choice of where to establish one’s home (Godbout), the choice of where to work (Wilson), parental
choices on how to raise your children (JG)
iii. DOES NOT include property or pure economic rights (Wilson)
b. Security of the person: engaged where there is state interference with bodily integrity and serious state-imposed
psychological stress (Blencoe)
i. Includes freedom from the threat of physical punishment, as well as freedom from actual punishment itself
(Singh)
ii. Ex: prohibiting assisted suicide, women’s right to terminate a pregnancy (Blencoe)
iii. Psychological harm must be (1) state-imposed; and (2) serious (Blencoe).
3. Does this infringe the right in a manner inconsistent with the principles of fundamental justice?
a. Principles of fundamental justice include the notion of procedural fairness – this requires different things in different
contexts (Singh)
b. Where an applicant does not know the case to meet and credibility is a central issue fundamental justice requires an oral
hearing (Singh)
c. Key question is whether the principles of fundamental justice have been adhered to, not whether they strike the right
balance – that is a question for s. 1 (Charkaoui)
d. Consider the impact on the individual and the national, societal interest to determine what the principles of
fundamental justice require (Charkaoui)
25
e.
4.
Basic requirements: right to a hearing, before an independent and impartial magistrate, a decision by the magistrate on
the facts and the law, and the right to know the case put against one, and the right to answer that case. How these
requirements are met will vary with the context. (Charkaoui)
Is the limit a reasonable one that is prescribed by law and demonstrably justified in a free and democratic society?
a. Charter guarantees will not be ignored on the basis of administrative convenience (Singh)
b. Violations of the principles of fundamental justice (especially the right to a fair hearing) are difficult to justify under s. 1
(Charkaoui)
c. Early decision: process should not be vague, arbitrary (Wilson)
d. The s. 1 test: the Oakes test:
i. Is there a pressing and substantial objective?
ii. Are the means proportional?
1. Are the means rationally connected to the objective?
2. Is there a minimal impairment of the right?
3. Is there proportionality between the effects of the infringement and the importance of the objective?
Under what circumstances will you resort to a constitutional argument for procedural fairness?
1.
2.
3.
When the statute expressly excludes the common law duty of fairness;
When the common law duty of fairness is unlikely to apply; or
When you want to argue for an especially onerous duty of fairness, which implies trial-type procedures.
Singh v Canada (Minister of Employment and Immigration) (SCC, 1985)
Facts: Singh & 2 others are claiming convention refugee status, from Sri Lanka (fear of being persecuted tortured or killed by virtue of his
ethnic/racial status by government, civil war in Sri Lanka). Has an interview with immigration officer, and is decided that he is NOT a
convention refugee. Immigration has information sharing with other countries, and use that information to assess what is actually
happening in Sri Lanka, to determine if what Singh says is grounded in fact. Immigration officer denies the claim. Singh appeals. Minister
on advice from Advisory Committee determined that they were not convention refugees, Singh applies to the Immigration Appeal Board
for a redetermination. Under Immigration Act, if you file appeal with Appeal Board, Board must decide if it will allow the appeal to
proceed, based on preliminary assessment. If it proceeds, then applicant gets a hearing. BUT if Board believes application for convention
refuge status will not succeed, appeal is denied and applicant gets NO hearing.
Singh’s lawyers raised 2 constitutional arguments for a hearing, saying the process is unfair. Appeal was denied without Singh getting an
opportunity for a hearing. Singh’s case was reviewed completely on paper using intelligence from Sri Lanka. Should have had an oral
hearing where you hear Mr. Singh’s evidence.
2 Constitutional Arguments: 1. Bill of Rights was used, 2. Charter
Bill of Rights: Section 2(e): every law of Canada (includes Federal Immigration Act) shall be construed and applied as not to abrogate,
abridge or infringe…any of the rights or freedoms herein recognized and declared...and will not deprive a person of the right to a fair
hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
May have used Bill of Rights because Charter was new and unfamiliar.
Instead of using Charter on section 71 of Immigration Act, Beetz thought to construe section 71 as to give Singh rights to PF. Beetz did not
construe section 71 as excluding Singh from the right to an oral hearing. Is Mr. Singh’s rights/privileges engaged here/affected by this
decision making process? Yes, while no right to stay in Canada, he has a right to have his application be considered with due process.
Nature of interest here is more compelling than in Baker (in Baker she was only going to be deported to Jamaica and separated from her
kids. Singh may be killed/persecuted if he is sent back, by his own government).
Threshold Questions about BoR: Does it even apply to Canadian Immigration Appeal Board – yes it does, past threshold question 1. Then,
consider if Singh’s rights under section 2(e) were engaged – did the decision affect Singh’s rights and obligations? Beetz J. thinks so, even
though it wasn’t a vested right, fact that he had certain rights under statute if he can establish his claim, was sufficient to trigger section
2(e).
What’s the principles of fundamental justice required here? Nature of interest here are so grave, consequences so serious, that nothing
less than an oral hearing will suffice.
Charter:
Issues: Was Singh owed a duty of fairness in the form of an oral hearing?
Held: Yes. An oral hearing was required under s.7.
Reasoning (Wilson): resort to the Charter is required because the Act provides a comprehensive procedural scheme that excludes an oral
hearing.
Statutory Interpretation
o Refugee Status Advisory Committee acts as a decision making body isolated from the persons whose status it is
adjudicating and it applies policies and makes use of info to which the refugee has no access to.
o Committee and Minister have a duty to act fairly in carrying out their duties in the sense that decision cannot be
arbitrary and must make an effort to treat equivalent cases the same
26
o
-




But courts cannot import into the duty of PF constraints on the Committee’s operation which are incompatible with the
decision making scheme set up by Parliament
o If board were to determine that application for redetermination should occur then hearing would follow rules of natural
justice
 But board can only make this determination if in its opinion there are reasonable grounds to believe a claim can
be established
o Procedures of the Immigration Act followed correctly and no way to interpret provisions to provide a greater degree of
PF (act precludes this)
Must look at the Charter
o Can he access s.7 as a non-citizen? Yes – everyone includes non-citizens (broad application)
o S. 7: Was there a deprivation of life, liberty, or security of the person?
 The denial of the rights of a convention refugee constitutes a deprivation of his security of the person.
 Security of the person encompasses freedom from the threat of physical punishment as well as freedom from
such punishment itself.

The claim is not to assert rights as convention refuges, but that they are entitled to fundamental justice in the
determination. Under the Charter, there will be no dichotomy between rights and privileges. The principles of
fundamental justice includes the notion of procedural fairness – which requires different things in different
contexts.
 Key factors: credibility is central, there is an inadequate opportunity to know the case to meet. Where a serious
issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an
oral hearing.
o Can the procedures be saved under s. 1 as a reasonable limit prescribed by law which can be demonstrably justified in a
free and democratic society?
 Charter guarantees will not be ignored on the basis of administrative convenience – even if cost was a factor to
be considered, the Minister has not demonstrated that the cost is prohibitive
Reasoning (Beetz): appeals should be allowed on the basis of the Bill Of Rights. Able to do so because the statute wasn’t too
explicit in its rejection of procedural rights.
Bill of Rights (s. 2(e)): appellants were not afforded a fair hearing in accordance with the principles of fundamental justice. The
principles of fundamental justice will not impose an oral hearing in all cases – consider the nature of the legal rights at issue and
the severity of the consequences, esp. whether credibility is at stake. Singh had a legal right at stake
Summary: Both justices agree that oral hearing & adequate disclosure required, with right to cross recommended
Commentary: why decide this case on Charter grounds? Charter was new – this was a stronger way to impose the requirements.
Blencoe v British Columbia (Human Rights Commission) (SCC, 2000) – S.7 analysis = good structure for exam,
delay and the Charter
Facts: While serving as a BC Minister, Blencoe was accused of sexual harassment– complaints were filed with the BC Human Rights
Commission and he was dismissed from caucus. Hearing scheduled for March 1998; respondent considered himself unemployed in BC due
to allegations; commenced judicial review proceedings in Nov 1997 to have complaints stayed on basis that the commission had lost
jurisdiction due to unreasonable delay; argued delay caused serious prejudice to him and his family that amounted to an abuse of process
and denial of natural justice; BCSC dismissed claim, BCCA allowed appeal and stayed charges, with majority finding that he had been
deprived of s.7 right to security of person (SOP) in accordance with PFJ.
Issues: Does the Charter apply to actions of BC Human Rights Commission? Have B s.7 rights been violated by state-caused delay? If not is
B entitled to remedy pursuant to admin law principles where the delay did not interfere with the right to a fair hearing?
Held: No. B s.7 rights were not violated nor did Commission’s conduct amount to an abuse of process that would entitle him to an admin
law remedy
Reasoning:
Does the Charter apply to actions of BC Human Rights Commission:
o “mere fact that body is independent of government is not determinative on Charter application
o Commission derives all legal powers from statute therefore it should be bound by the Charter = administration of a
government program that calls for Charter scrutiny.
o The Commission must act within limits of enabling statute. There is a governmental quality to the function of the HR
Commission, created to promote equality in society
Liberty? SOP?
o Liberty is engaged where state compulsions or prohibitions affect important and fundamental life choices. But, it only
protects inherently private choices – the choice of where to establish one’s home (Godbout), the choice of where to
work (Wilson), parental choices on how to raise your children (JG).
 B says his freedom to choose occupation is affected, stigma hangs over his head and he is forced to move. Court
holds that any affect had here is indirect:
27
 Legislation is not forcing him to move or detaining him (Lewans: this is shaky)
 State has not prevented him from making fundamental personal choices
o Security of the person is engaged where there is state interference with bodily integrity and serious state-imposed
psychological stress. Two requirements:
 (1) Psychological stress imposed by state action (sufficient causal connection between state action and
psychological effect then ask
 Were mostly consequences that had occurred before there was a delay
 Respondent himself chose to fight allegations in public – media causing part of this
 But court assumes this requirement is met
 (2) Is there enough there to constitute serious state imposed psychological stress (threshold question)?
 Only serious incursion resulting from state interference with an individual interest will satisfy the test
o Psychological stress such as depression and marriage problems not enough to engage s.7
right, as the state has not interfered with his family’s ability to make life choices
o SOP under s.7 does not equate the notion of stigma from the criminal law context with
emotional effects of administrative or civil proceedings – no “stigmatizing” state
pronouncements as to his fitness
 Notions of respect for human dignity and a person’s reputation are values underlying the Charter but
not elevated to free-standing rights protected by s.7
o Overall: B unable to cross first threshold of s.7 analysis
 S.7 rights are not closed off, but if you are making a s.7 argument you are going to want to make an analogy.
Think critically about each state of s.7 analysis. When engaged likely moves toward higher end of PF spectrum
Remedy based on Admin law principles?
o Prejudice to fairness of the hearing: must be proof of significant prejudice which results from an unacceptable delay (ie:
delay impairs party’s ability to answer complaint against him because memories have faded or witness has died) – delay
in this case would not result in a hearing that lacks the essential elements of fairness
 Respondent’s right to fair hearing not jeopardized
o Go on to consider whether delay could amount to denial of natural justice or an abuse of process even where the
respondent has not been prejudiced in an evidentiary sense: where courts proceed to this point, take narrow approach,
but court here prepared to recognize that unacceptable delay may amount to an abuse of process even where the
fairness of the hearing is not compromised.
 Requirement: delay must be clearly unacceptable and have directly caused a significant prejudice to amount to
an abuse of process
o Abuse of Process: common law principle invoked when to stay proceedings where allowing them to continue would be
oppressive
 Proceedings must be unfair to the point that they are contrary to the interest of justice
 Was the delay unacceptable? Must have been unreasonable
 No abuse of process by delay per se: respondent must demonstrate that delay was unacceptable to the
point of being so oppressive as to taint proceedings
 Here: the commission did take longer than desirable but not so inordinate to amount to an abuse of
power – delay is not one which would offend community’s sense of decency and fairness
Dissent (Le Bel):
Agrees that a claim of unreasonable delay can be brought at CL
Assessing unreasonable delay is a contextual process keep in mind 2 principles
o Not all delay is the same
 General delay = includes certain kinds of delay due to substantive and procedural complexities inherent in the
kind of matter the tribunal deals with
 Individual delay = includes special complexities of a particular decision and delays from inattention to a
particular file
o Not all administrative bodies are the same
 Diversity of powers, mandates and structures means that it might be inappropriate to apply particular
standards from one context to another
Ultimately ask: whether lengthy delay that profoundly harms individual’s life is really justified in the circumstances of a given
case. Respondent must prove:
o Respondent must demonstrate that delay was unacceptable to the point of being oppressive as to taint the
proceedings
 When its affecting the fairness of the hearing itself (did not happen here: B did not provide enough support for
his claim that delay caused him to lose evidence
o It is so inordinate that it compromises the fairness of the entire process – 3 factors
28

(1) The time taken compared to the inherent time requirements of the matter
 Here: took 30-32 months
 This is a sexual harassment claim involving 2 complainants who have already come forward = a
relatively simple case in terms of evidence
 (2) the causes of delay beyond inherent time requirements
 Includes consideration of such elements as whether the affected individual contributed to or waived
parts of the delay and whether admin body used its available resources efficiently
 Asking who is the delay attributed to
 Here: focus on 5 month period where investigation was complete but no one was assigned to the file,
and eventually assigned to same person who investigated
 (3) the impact of the delay
 Encompassing both prejudice in an evidentiary sense and other harms to the lives of real people by the
delay – evidence erodes, witnesses die, etc. When this happens, accused can no longer answer case
against him
 Consider efforts made to minimize the negative impacts
 Here: B and his family suffered – his career is finished, moved across country and back, treated for
depression, social stigmatization
o Not all because of delay but was a significant cause and commission did nothing to minimize
the impact
Lebel saying essentially this shouldn’t have been framed as s.7 argument but on Common law grounds for abuse of process
He would lift stay and order expedient hearing of complainants and make BC pay costs to B
o Remedy must take into account respondent’s interests, complainant’s interest and public interest
Ratio: if you have faced unreasonable, substantial delay in the admin process but you don’t think you can meet the threshold under s.7 of
the Charter consider Lebel requiments for common law
Charkaoui v Canada (Citizenship and Immigration) (SCC, 2007)
Facts: Charkaoui + 2 others were convention refugees. They were named in “security certificates” under the Immigration and Refugee
Protection Act – issued by Minister of Immigration, allowed the RCMP to arrest and detain those who have been deemed a threat to
national security – no formal charges so no associated rights of criminal procedure. Under the Act, a federal court judge would first review
the certificate and determine whether it was reasonable (judges still involved in a rule of law decision, they aren’t supposed to rubber
stamp each certificate, they should be exercising judgment. BUT, neither the refugee nor his lawyer is part of this process) – At the request
of minister hearing was conducted in camera (in private) and ex parte (absence of one of the parties – Charkaoui). Department of
Immigration cannot send a security certificate to a citizen; only those with permanent resident status/refugee status can be issued a
security certificate. Charkaoui had no opportunity to plead his case, no ability to know the case against him and decision could not be
appealed. Individuals could then be subject to additional proceedings stripping them of refugee status and deporting them. C challenged
constitutionality of security certificate process on the basis that the procedure to determine reasonableness of certificate violated s.7 of
charter. Used Charter because enabling legislation may not provide PF, and Common Law PF may not be strong enough. 2 Common law
principles of PF – everyone has right to know case against them and chance to meet them AND an unbiased decision maker, someone
open to persuasion. Therefore, problem with securities is a problem with disclosure (don’t know information regarding their case so can’t
meet it) and problem with no oral hearing (Singh case – applicant lawyers argued if you are going to send someone back where they may
have legitimate concern about being persecuted, they should have an oral hearing because they can’t meet case against them without
having a right to cross-examine some of the witnesses). This leads into a Charter analysis, because security certificate removes these
common law protections.
Issues: Does the security certificate process infringe s. 7?
Held: Yes infringed s.7 and not saved by s.1. But given national security concerns, the court limits some information – it is filtered by the
judge.
Reasoning:
Aspects of security certificate that are problematic from perspective of PF:
o No opportunity to plead case
o No ability to know the case against him
 Police removes everything from file that proves their case, so person doesn’t know how to call evidence to
defend themselves
o Decision cannot be appealed
The question at the s. 7 stage is whether the principles of fundamental justice have been adhered to, not whether they strike
the right balance (like s. 1).
Question at s.1 stage = whether the government can establish that the flawed process is nevertheless justified having regard
notably to public interest.
29
o
Security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage
but it may impose certain admin constraints that may be considered at s.1 stage.
Clearly, the right to liberty and security of the person is at stake, and possibly life as well.
o The basic requirements of the principles of fundamental justice are right to a hearing, before an independent and
impartial magistrate, a decision by the magistrate on the facts and the law, and the right to know the case put against
one, and the right to answer that case. How these requirements are met will vary with the context.
 Being deported to a country where his life is in danger, so right to life being engaged
 Being detained indefinitely until court process is completed– physical liberty is compromised, right to liberty
and security of the person
 If released on bail conditions, that also can trigger his s. 7 rights: restricts his movements, restricts
ability to contact friends/family, restricts ability to live where he wants – liberty, security of the person
 Normally these impacts on individuals would require very intensive PF requirements but because of national
security context, they are tailored back. Policy considerations influence PF. Usually, these concerns come up
under s. 1 – court will look to see if section 7 rights infringed, then look to see if there is justification under s. 1.
HERE, already under section 7 McLachlin uses policy to shape what’s require under fundamental justice. Here,
national security shapes understanding of what principles of fundamental justice require in a case like this. In
this case, there may be a serious risk to public safety in Canada (in Singh, it’s a convention refugee status
question, but here, its national security, so argument in Singh isn’t the same as the one here).
 The right to hearing: met here
 Hearing before an independent and impartial magistrate: met here
 Decision of the magistrate on the facts and the law: not met
 Right to know the case put against one and the right to answer that case (disclosure): not met
o Is Charakoui entitled to review dossier about him complied by CSIS and discuss it with his
lawyers? NO, because of balancing done between fundamental justice and national security.
So can’t share dossier with someone who is allegedly a terrorist. BUT, is there something less
than full disclosure that Charkaoui is entitled to under s. 7? Entitled to a special advocate:
review information on behalf of person and argue on their behalf. Special roster of lawyers
that have security clearance to view sensitive state material
Right to know the case is not absolute – but typically where ex parte or in camera hearings have been constitutionally allowed
under statute, the intrusion on liberty and security has been less serious than here and courts insisted that disclosure be as
specific and complete as possible.
o Having judge look over the information and point out illogical items or discrepancy is an inadequate substitute to the
detainee himself looking over the materials and pointing out errors
 Must give detainee more information.
Section 1: protection of national security is a pressing and substantial objective and nondisclosure of evidence at certificate
hearings is rationally connected – but compared to measures used in Canada and abroad, IRPA process is not minimally impairing
o Ie: certain lawyers on roster for detainees have security clearance to view the information – can scrutinize it then and
make submissions
Commentary: following this decision, Parliament passed new legislation that provided for the appointment of a special advocate who
could challenge government claims to evidence as well as its relevance, reliability, sufficiency, and weight, make submissions, crossexamine witnesses, and with permission exercise any other powers required to protect the interests of a named person.
Anatomy of a s. 7 claim
1. S. 32 (Does the Charter apply?) – yes it does in this case, this wasn’t even argued. If someone is being detained, detainment needs
to comply with section 7
2. S. 7 claim
a. Life, liberty, and security of the person (liberty is clearly being engaged in security certificate situation. Also, where you
can live, if a government job tries to force you to live somewhere, this interferes with liberty. If government interferes
with your children or forces person to return to a country where they fear death is security of person (government
induced psychological stress)).
b. Principles of Fundamental justice – at the very least, entitled to an oral hearing (McLachlin: given situation/how decision
is made, at very least get to know case against you and cross-examine witnesses that give testimony adverse to your
interest because credibility is at stake. Whole process is staked on credibility.) Because no oral hearing, breached
fundamental justice
3. Section 1 analysis – Later, SCC said once you establish that fundamental right to life liberty and security of person, it’s very
difficult to show that this breach is justified.
4. S 24 or 25 remedy – establish a breach, then consider what kind of remedies – what does your client want? When being held
indefinitely before a trial, gold standard of a remedy you want the security certificate tossed so client can get on living their life.
But there can be other options that if court doesn’t want to do that, as courts are genuinely concerned about national security,
such as exclusion of evidence
30
Harkat v. Canada (FCA, 2012)
Amended process for security certificate: Still have in camera, ex parte hearing. Information still shared with special advocate, info
contains summaries of evidence and summaries of witness testimonies. Rules on how much special advocate can communicate with
Harkat and Harkat’s lawyer.
Section 77(2): what information the government will file with the federal court – reasonably informed of details of case (considers section
7) but does NOT include anything that would be injurious to national security or endanger anyone if information were to be disclosed
Section 83: preserving confidentiality of that information – regulating degree which information can be shared between special advocates
and people like Harkat and his lawyer
Main theme: person is reasonably informed but no information that would pose a threat to national security or threaten a person (like a
witness)
Does amended security certificate process engage Harkat’s s. 7 rights? Yes.
Facts: Along with Messrs. Charkaoui and Almrei, the appellant challenged the constitutionality of the security certificate regime. Reasons
reported as Charkaoui v. Canada
On December 22, 2008, the judge rejected a motion by the appellant’s special advocates to identify, interview and cross-examine covert
human intelligence sources on the basis that they were protected by a common law class privilege. A year later, on December 9, 2010, the
judge upheld the certificate’s reasonableness.
Issues:
- whether the Act violates the appellant’s right to life, liberty and security of the person under section 7 of the Charter?
- Whether CSIS’ human sources benefit from the police informer class-based privilege?
- Whether the appellant’s section 7 right to know and meet the case against him has been violated by the destruction of the
original evidence?
- If so, what is the appropriate and just remedy under subsection 24(1) of the Charter?
- Whether the appellant was the victim of an abuse of process and is entitled to a stay of proceedings?
Decision: I would allow the appeal with respect to the Reasonableness of the Decision, set it aside and I would refer the matter back to the
judge for a new determination of the reasonableness of the security certificate on the basis of the evidence on the record, excluding the
confidential summaries made of the destroyed originals
Reasoning:
- The process begins with the Minister filing with the Court all the information and evidence on which the security certificate is
based as well as a summary of information that enables the person named in the certificate to be reasonably informed of the
case made by the Minister.
- However, the summary does not include anything that, in the Minister’s opinion, would be injurious to national security or
endanger the safety of any person
- To counter this limitation, the judge shall appoint, on request, a person to act as special advocate in the proceedings unless the
appointment would result in an unreasonable delay of the proceedings, place the person in a conflict of interest or the person
already knows information
o Subsection 85.1(2) confers on the special advocates the responsibility to challenge the Minister’s claim that disclosure of
information or evidence would be injurious to national security or endanger the safety of any person. However, this
section does not entitle the special advocates access to privileged information.
- The section 7 test has been established as follows: 1) are a claimant’s life, liberty or security of the person’s interests engaged?
and 2) if so, are these deprivations in accordance with the principles of fundamental justice?
o The appellant submits that by being provided with only summaries of the confidential evidence he is deprived of the
ability to know and answer the case against him.
o While it is true that the named person is not given access to the confidential material, the special advocates who
represent him and the judge are provided with this information.
- Finally, the CSIS members claim a class privilege. If this Court were to judicially create a class informer privilege for CSIS human
sources, it would abolish the task expressly conferred by the Act upon the judge to determine with respect to every piece of
source information the appropriateness of disclosing it or not to the named person
o Test: To deny the special advocate disclosure with respect to a human source, the Ministers must satisfy the judge that
such disclosure would be injurious to the safety of a person.
- the special advocates are prohibited from communicating with the named person or any person after they have received the
confidential information given to the judge. But the Act has built in the flexibility necessary to ensure the fairness of the process
and the protection of.
o The revised Act provides the judge with the necessary tools to ensure a fair process. With the assistance of the special
advocates acting on behalf of the appellant, the judge is vested with the necessary powers at common law and under
the Charter and the Act to satisfy the fairness requirement of section 7 of the Charter.
31
o
-
-
-
-
He possesses the power to order disclosure of information, authorize additional communications, remedy a failure to
disclose and grant a just and appropriate remedy under subsection 24(1) of the Charter where a breach of procedural
fairness has occurred.
o He can take pre-emptive action to prevent a violation of a named person’s right to liberty and security of the person. All
of these factors, coupled with the Charkaoui #2 disclosure, are a sufficient substitute for full disclosure.
The TJ accepted that the CSIS officers were subject to a class privilege. Harkat successfully argued at the CA that this class
privilege was too broad. This blanket privilege offends the PFJ. We are starting to see courts chip away at claims of privilege
and non disclosure.
The destruction of the original notes of conversations and the appropriate remedy under subsection 24(1) of the Charter
CSIS destroyed the original records of interviews with the appellant as well as conversations about the appellant or to which the
appellant was a privy. However, it made a summary of the contents of these interviews and conversations. Interventions
generated a possibility of errors, inaccuracies or distortions.
Even though CSIS was acting in good faith in accordance with the policy in place when it destroyed the originals, the breach of its
duty to retain the information and disclose it under the Act impacted on the appellant’s right to know the case and his ability to
meet it.
With respect, I do not think that disclosure of CSIS’ summaries to the special advocates can be a remedy for the destruction of the
originals.
whether or not the summaries were corroborated, the appellant suffered a breach of his Charter section 7 right to disclosure and
is entitled to a just and appropriate remedy:
o It seems to me that exclusion of the summaries would be the appropriate remedy.
Should society’s interests be considered at the s. 7 stage, or is this issue best addressed under s. 1 of the Charter?
 In Charkaoui, McLachlin concludes that we need to consider society’s interest at the s. 7 stage, to determine what the principles
of fundamental justice require
o Also consider the impact on the individual
o This imports a contextual analysis into s. 7
 But – does this just give the government two chances to justify the action (one at s. 7, one at s. 1)?
o Limits individual rights to impose this requirement at the s. 7 stage
Charkaoui #1
To determine if a section 7 infringement has occurred, two questions must be answered: (1) has there been or could there be a deprivation of the right to life, liberty and security of the
person? and; (2) was the deprivation in accordance with the principles of fundamental justice?
1) Has there been or could there be a deprivation of the right to life, liberty and security of the person?
The Court concluded that the detention of named persons and the threat of removal of named persons from Canada to locations where their liberty, safety, and even life is in danger
constitutes an infringement of named persons right to life, liberty and security of the person. While the government argued that section 7 does not apply to immigration matters, the
Court disagreed, as matters that arise in immigration matters can nonetheless trigger section 7 (such as detention and deportation to torture). The Court concluded that the IRPA
deprives named persons of the right to life, liberty and security of the person. Mr. Harkat was therefore deprived of his section 7 rights as he was detained with no knowledge of how
long this detainment would last. Furthermore, if Mr. Harkat were to be deported, his right to security of the person would be infringed, as his safety, and possibly his life, would be in
danger.
2) Was the deprivation in accordance with the principles of fundamental justice?
The principles of fundamental justice must be “observed in substance, having regard to the context and seriousness of the violation.” The heart of the matter is whether the process was
fundamentally unfair to the affected person. The Supreme Court is adamant that while national security may shape the determination of whether a process is fundamentally unfair,
national security cannot be used as an excuse to justify “procedures that do not conform to fundamental justice at the s. 7 stage of the analysis.” However, the Court recognizes that
the government may not always be able to meet the standard principles of fundamental justice in certain contexts, such as security, so allows the government to find “adequate
substitutes.”
The Supreme Court found that the relevant principle of fundamental justice that is at issue in this case is the principle of due process. The principle of due process is composed of five
requirements: (1) a hearing, (2) an independent and impartial magistrate, (3) a decision by the magistrate on the facts and the law, (4) the right to know the case against one; and (5)
the right to answer that case. The Supreme Court analyzed each requirement and determined that the IRPA met requirements one and two but did not meet requirements three, four
and five. These elements of due process were not met because while the Ministers and the designated judge had access to all of the evidence against the named person, the named
person and his lawyer were shown little or none of this evidence and information, in accordance with the IRPA. Furthermore, the named person was not allowed to fully participate in
the proceedings against him. Consequently, the judge was required to make a decision on only a part of all the relevant evidence and the named person was not able to raise relevant
legal arguments. Due to the complete lack of disclosure under the former IRPA, the rights to a decision by a judge on the facts and the law, to know the case to meet, and to answer that
case, were non-existent. Due to the IRPA, Mr. Harkat was deprived of his section 7 rights in a manner that was not consistent with the principles of fundamental justice. Hence, the old
security certificate decision-making framework was deemed unconstitutional.
The Supreme Court suggested several alternative systems that may better substantially satisfy section 7 requirements (and are less intrusive under section 1), including the special
advocate system used in Europe. The Court did list several criticisms with the special advocate system, however. Parliament decided to amend the IRPA with the special advocate
system.
Charkaoui #2
This case arose after Parliament amended the IRPA with the special advocate system, but, importantly, the Supreme Court declined to decide on the constitutionality of the
amendment. The facts of this case revolve around the destruction of notes from two interviews with Charkaoui by CSIS. As a result, this evidence could not be brought before the
designated judge. The Supreme Court concluded that CSIS cannot hold information back from the designated judge and must disclose all information and evidence. This duty of
disclosure is required by section 7 of the Charter, to ensure that the principles of fundamental justice are met, even in the context of national security.
Re Harkat, [2010] FC 1242 (the Constitutionality Decision)
In this case, Mr. Harkat argued that the amended IRPA (specifically sections 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b)) was still unconstitutional as it continued to
violate his section 7 rights, even with the addition of the special advocate system. The judge in this case analyzed the special advocate system, noting that the special advocate’s role is
to protect the interests of the named person, mainly by challenging restrictions on the disclosure of information made by the Ministers. However, once the special advocate reviews
confidential information, the special advocate may no longer initiate contact with the named person and his counsel without the authorization of a judge, to ensure that the special
32
advocate does not accidently (or otherwise) share confidential information with the named person. The judge in this case noted that the special advocate played an “active role” in the
closed hearings, comparable to a public lawyer in a public hearing. The judge seemed satisfied that the special advocate actually did make a difference in the proceedings.
The judge concluded that Mr. Harkat’s section 7 rights were still deprived by the amended IRPA. The judge also pointed out that the interpretation of section 7 is always done with the
context of the claim in mind. In this claim, that context was national security and public safety. However, even in this crucial context, any substitute to the system that protects a
person’s rights under the principles of fundamental justice when that person’s right to life, liberty and security of the person is being infringed must still substantially protect these
principles. The judge found that the new legislation “shows a clear intent on the part of Parliament for the disclosure of evidence to the named person that enables him to be
reasonably informed of the case made.” This intent rectifies the former IRPA’s lack of due process due to a lack of disclosure, and the judge concluded that the amendments to the IRPA
(and the resulting special advocate system) safeguard the principles of fundamental justice. Consequently, the judge held the IRPA to be constitutional.
Re Harkat, [2012] FCJ No 492
This case was an appeal of Re Harkat, [2010] FC 1242. In this case, the appeal judge affirmed the decision of Re Harkat, [2010] FC 1242, agreeing with the judge in that case that the
IRPA as amended is constitutional. The judge in this case concluded that “the proper section 7 test for fairness” was applied and that “subsection 77(2) and paragraph 83(1)(e) of the Act
accord with the principles of fundamental justice.” In support of this decision, the judge noted that while the named person does not get access to confidential material, the special
advocate does. Furthermore, the special advocate’s access to confidential material is on par with that of the designated judge. The special advocate then ensures that confidential
evidence “is challenged on behalf of the named person and that his interests are protected.” The designated judge ensures that the process is fair. According to the judge, what Mr.
Harkat is arguing for is effectively a right to unlimited access to all relevant information, whether it is confidential or not and regardless of national security concerns. Ultimately, the
judge in this case affirmed Re Harkat, [2010] FC 1242 and found that the revised IRPA is constitutional in regards to the fairness requirement of section 7 of the Charter.
Baker Factors for Procedural Fairness
(1) The nature of the decision and the process followed in making it.
(2) The nature of the statutory scheme.
(3) The importance of the decision to the individual or individuals affected.
(4) The legitimate expectations of the person challenging the decision.
(5) Respect for the procedural choices made by the decision-maker.
Procedural Fairness: Legitimate Expectations (LE)
Legitimate Expectations: The fourth Baker Factor = the legitimate expectations of the person challenging the decision.
 Circumstances where procedures are required by reason of expectations generated in an affected person. Not entirely
contingent on a detached analysis of the statutory power in question.
 Traditional common law argument (Cooper): even if there is no duty of fairness explicitly in the legislation, the common law will
supply it under certain circumstances
What is a “legitimate expectation”?
 “An expectation of a hearing arising out of express representations, a practice of holding such hearings [in the past] or a
combination of the two.” Van Harten, et al., p. 159.
 “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.” Sopinka J., Old St. Boniface Residents Assn.
o First Canadian case that set the stage for legitimate expectations
 “May arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which
the claimant can reasonably expect to continue.” Lord Fraser (House of Lords), Council for Civil Service Unions
 Example: R. v. Liverpool Corporation (Eng CA): Municipal officials gave express undertaking that they would consult taxi owners
before issuing additional taxi licenses. Then, municipality issues more licenses without consulting taxi drivers.
o Per Lord Denning: the undertakings created a “legitimate expectation” that a public hearing would be held and
prohibited the municipality from implementing its decision to increase the number of taxi licenses. By giving these
express undertakings, they weren’t required by statute to consult, but the fact of giving the undertakings created legal
rights
Reference re Canada Assistance Plan (SCC, 1991)
Facts: Federal Canada Assistance Plan authorized the gov’t to enter into cost sharing agreements with the provinces re: social assistance
programs, and provided that they would remain in force so long as the provincial law was in operation, subject to termination by, mutual
consent or on one year’s notice. Federal government introduced a bill that purported to reduce support for BC, Alta, and ON without
notice. BC brought a reference based on legitimate expectations (LE) of the right to consent to any change.
Issues: Was the government precluded from introducing this bill by virtue of the legitimate expectation that amendments would only be
made by consent or with notice?
Held: No
Reasoning:
 The majority of the BCCA held that fed acted illegally in amending the Plan without obtaining the consent of BC – the action
violated the legitimate expectation of BC.
 This must be contrasted with claim that there was a legitimate expectation that the federal government would not act without
consulting BC.
33
o
If the doctrine of LE required consent and not merely consultation, then it would be a source of substantive rights – here
the substantive right to veto proposed legislation
 No support in common law for position that doctrine of LE can create substantive rights
o It may create right to make representation or be consulted
o It protects procedural rights but does not guarantee substantive rights
o Furthermore the rules regarding procedural fairness do not apply to a body exercising a legislative function. Parliament
does not have to comply with PF in making decisions and passing laws other than on constitutional grounds.
 Courts do not intervene in the legislative process. The formulation of a bill is part of the legislative process. The
doctrine of legitimate expectations does not apply – it would paralyze the parliamentary system.
Ratio: The doctrine of legitimate expectation deals only with procedural entitlements and not substantive rights
Commentary: unclear how much “work” the doctrine of legitimate expectations is doing here, or if the case was decided on the basis of
the legislative distinction.
Council of Civil Service Unions v Minister for the Civil Service (UK HL, 1985)
Facts: Government Communications Headquarters (GCHQ) provided the gov’t with signals intelligence. There was a well-established
principle of consultation between the gov’t and unions re: employment contracts. A dispute erupted, and the Minister for the Civil Service
made an order prohibiting GCHQ employees from belonging to national trade unions. Council of unions challenged the validity of the
order on the basis that it was made without consultation.
Issues: Did the doctrine of legitimate expectations give rise to a procedural right to consultation for the unions?
Held: No
Principle: There was a legitimate expectation that the unions would be consulted before this order was made. But, the claim to
procedural fairness fails because the national security concerns outweigh this expectation, and the choice must be made by the executive
and not the courts.
 Unlike Re CAP(above) – no express undertaking to refrain from making this order (so factual basis for LE argument seems weaker)
but the nature of the decision is less legislative (so factual basis strengthened) – more focused, affects targeted group of people.
Fuery v Roman Catholic School Board Bay Centre (Nfld SCTD, 1991)
Facts: School Board decided to close a school. Several years earlier parents had been involved in discussion which saved the school; a
discussion paper by the superintendent and subsequent discussions in which parents were not involved reversed decision and sought to
close the school; 13 residents sought relief to quash the decision, alleging that it was made without public input which was a breach of
procedural fairness. Guidelines established a process of consultation, and this process wasn’t followed.
Issues: Were the parents owed a right to consultation?
Trial Decision:
 The legislation is silent on the issue of procedural fairness. The school closure decision was administrative – it dealt with specifics,
and was not a general decision of broad application.
 Prior consultations of the Board and the guidelines had the effect of creating an expectation of procedural fairness. There was a
reasonable expectation of consultation. Matter is remitted back to the board for consultation and decision.
Appeal Decision: no procedural fairness.
 Though this was an administrative function, there was no evidence that 2 of the 13 individuals actually believed that the past
practice would be followed in this instance.
 Raises the question of if LE requires both express undertaking and reliance
Mount Sinai Hospital v Quebec (SCC, 2001)
Facts: Hospital had been functioning in violation of its license. The Minister agreed that if the hospital relocated, the license would be
regularized. Hospital engaged in extensive fundraising and relocated. When it sought to update its license, a new Minister in a new
government refused on the basis that it would commit the government to additional financial support of the hospital. The hospital sought
to compel the Minister to issue the revised license on basis of LE. QBsup refused application on basis that doctrine of LE could not be used
to achieve substantive rights; QBCA accepted this but ruled that hospital was entitled to license based on doctrine of public law estoppel;
minster appealed to SCC.
Issues: Does the doctrine of legitimate expectations apply to grant the hospital the right to compel the Minister to issue the revised
license
Reasoning:(Majority – Bastarache): The decision had already been made by an earlier Minister, conditional on the hospital relocating.
The current Minister did not have any basis for overturning this decision. It is not necessary to deal with issues of legitimate expectation
and public law estoppel.
Decision (Concurring – Binnie): current Minister acted in a procedurally unfair manner and failed to act in procedurally fair manner in
refusing license. Mandamous was available to compel the issuance of the license.
 Both judgments focused on finding that minister’s reasons for refusing license was not supported by facts: no evidence of
commitment of addition funds.
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Reasoning (Binne):
 Respondent argues that LE can be used to compel not only procedural protection but substantive results, provided such a result is
not contrary to law and is otherwise within ministers power.
 EngCa has confirmed that LE can give rise to substantive remedies but in England, the doctrine performs a number of function
that in Canada are distinct.
 Canadian Cases tend to differentiate for analytical purposes between doctrine of PF and LE
o Availability and content of PF generally driven by the nature of the applicant’s interest and the nature of the power
exercised by the public authority in relation to that interest.
o Doctrine of LE looks to the conduct of public authority in the exercise of that power, including established practices,
conduct or representation that can be characterized as clear, unambiguous and unqualified
 LE sometimes treated as a form of estoppel
o Weight of authority and principle suggest that an applicant who relies on LE may (but not necessarily have to show) that
he was aware of such conduct or that it was relied on with detrimental results
 If the court is to give substantive relief, more demanding conditions precedent must be fulfilled than are presently required by
the doctrine of LE = affirms it is limited to procedural relief (for now)
o It might be difficult to distinguish between “substantive” and “procedural” rights – the focus should be on whether the
decision is broadly one for the legislature, or the court.
 The Minister’s decision should be set aside through application of the ordinary rules of procedural fairness –
o No need to resort to the doctrine of legitimate expectations.
o Promissory Estoppel: may be available against a public authority, including a minister, in narrow circumstances. The
doctrine of legitimate expectations does not necessarily, though it may, involve personal knowledge by the applicant of
the conduct of the public authority as well as reliance and detriment. But, public law estoppel does require reliance to
establish the other party has:
 By words or conduct made a promise or assurance
 Which was intended to affect their legal relationship and to be acted on
 The representee must establish that in reliance on the representation, it acted on it or in some way changed
its position
 Higher evidentiary requirements
o Requires appreciation of legislative intent: here minister mandated in broad terms to act in the public interest so court
should not estop minister from doing what he considers to be his duty
o What is at issue is not the minister’s ability to change policies, but the fate of individuals caught in the transition
between decisions. Public law dimension to the law of estoppel which must be sensitive to the factual and legal context.
Here primary consideration is wording of s.138 and the statues of the decision maker. Estoppel is not available on the
fact
What does the doctrine of legitimate expectations protect? Procedural or substantive rights?
 Substantive rights: the right to a particular outcome
 Only protects procedural rights – will not give rise to substantive rights (Reference re Canada Assistance Plan, Residents of old St
Boniface)
o Confirmed by Binnie in concurring judgment in Mount Sinai Hospital - but only in obiter in a concurring judgment – SCC
may potentially revisit this issue in the future?
o Point is reiterated by L’Heureux-Dube in Baker
 Doctrine has been expanded in England to include substantive rights
o But, Binnie in Mount Sinai Hospital refuses to do the same, suggesting that there are qualitative differences between
Canadian & English law that make this inappropriate (e.g. the Charter, principle of substantive unreasonableness)
Legitimate Expectations Summary




Helps bolster argument re: procedural fairness where the decision may be legislative or where there might be an argument that
procedural fairness rights are limited
Especially relevant where statement is made that an official will abide by specific policy/guideline
LE addresses both the threshold question about PF and the content question about what type of process a claimant is entitled
to receive
o On threshold question whether duty of PF is owed makes argument more compelling when LE exists
o When you get to the side of the spectrum where there is little PF, LE can make difference
In Canada doctrine of LE limited to procedural rights = at most when raised argument about LE, it give you a right to a hearing,
right to notice but it won’t give you an entitlement to a particular outcome.
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Is fault required on the part of the decision maker?
Issue: is fault required on the part of the administrative decision maker in order to find that there was a breach of procedural fairness?
What happens if the hearing is flawed for other reasons (e.g. notice lost in the mail, incompetent counsel, etc)?
 No definitive answer to this question in Canada
 Per Shirwa v Canada (Minister of Employment and Immigration): FCTD held that the incompetence of the applicant’s counsel at
the hearing was sufficient to hold that there had been a breach of procedural fairness
o Court recognized the danger of allowing cases to be built on allegations of incompetence, but felt this could be
controlled by careful exercise of judicial discretion and a requirement of exceptional circumstances
 Tension between the approached:
o The need for demonstration of fault
o Consider only whether in fact there was a failure in the holding of a fair hearing
 Is this a “slippery slope”? Too great a threat to finality in administrative decision making? Can be effectively
controlled through sensitive exercise of judicial discretion?
Procedural Fairness: Content
Baker Factors
Per Baker, there are a number of factors to consider to determine the content of procedural fairness:
 The nature of the decision and the process followed in making it. Administrative decisions which are made in an adversarial
context culminating in a formal adjudication will normally require more extensive procedural rights.
 The nature of the statutory scheme. Remember to examine the enabling legislation or general procedural statutes to see if they
mention procedural rights. Baker also states that when the enabling legislation does not provide for an appeal or attempts to
exclude judicial review, a higher degree of fairness is owed.
 The importance of the decision to the individual or individuals affected. Where the consequences of a decision are significant
for an individual, the court will normally require a higher degree of procedural fairness.
 The legitimate expectations of the person challenging the decision. Where the decision-maker has given an express promise or
past practice leads one to believe that certain procedural rights will be respected, it may lead the court to impose a duty of
procedural fairness.
 Respect for the procedural choices made by the decision-maker. Where the enabling legislation and the regulatory context
suggest that a decision-maker has special expertise in administering public policy, courts should respect the process chosen by
that decision-maker.
General Procedural Statutes
Alberta: Administrative Procedures and Jurisdiction Act
 Applies to most administrative agencies – a statute of general application
o Applies to authorities which exercise statutory powers (s.1) and have been designated by cabinet as an authority to
which the Act applies (s.2)
o Under the regulations, the APJA applies to the following agencies:
 The Land Compensation Board,
 The Surface Rights Board,
 The Alberta Transportations Safety Board, and
 The Natural Resources Conservation Board.
 Adds to, but does not exclude, other legal entitlements (e.g. common law fairness, Charter requirements)
o Can help to bolster a common law argument
 The Act addresses the following issues: Notice, Disclosure, Hearing Requirements (right to cross-examine witnesses, right to make
oral submissions, rule of evidence), Right to reasons, Jurisdiction to determine questions of constitutional law
Key features:
 Notice: provides for notice to affected parties in advance of the exercise of a statutory power (s.3).
o What constitutes adequate notice is a contextual assessment
 Disclosure/Hearing (s.4): where an authority proposes to act in a manner that adversely affects a party’s rights, the Act
guarantees the party an opportunity to provide relevant evidence and make submissions (though not necessarily in person)
o an authority “shall give the party a reasonable opportunity of furnishing relevant evidence”
o an authority “shall inform the party of the facts in its possession or the allegations made to it contrary to the interests of
the party”
 To permit the party to understand the facts/allegations, and to afford the party a reasonable opportunity to
furnish relevant to contradict or explain the facts/allegations
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o
o






an authority “shall give the party an adequate opportunity of making representations”
Disclosure: a right to disclosure of facts and allegations in sufficient detail to allow the party to understand and respond
to the case against it
Cross-examination(s.5): the authority shall permit cross-examination where cross-examination is necessary to test relevant
allegations
o Not a general right
Right to oral submissions and counsel(s.6): no general duty to allow oral representations or counsel if there is adequate
opportunity to provide written submissions
o If party wants these rights must have a compelling case to make on PF grounds
Representations: the opportunity to make representations at a hearing
o No general right to make oral submissions
o No general right to counsel
Reasons (s.7): where an authority’s decision adversely affects “the rights of a party”, it must provide the party with written
reasons, including findings of fact and reasons for its decision
o Applies where a decision affects the rights of the parties (keeps the question about whether rights or privileges are being
affected alive)
Rules of Evidence (s. 9): Not required that any evidence/allegations of fact be made under oath or that any admin body needs to
use the rules of evidence used in civil or criminal cases
Jurisdiction re: Constitutional issues(s.11): no jurisdiction to determine questions of constitutional law, unless the power has
specifically been granted to the administrative body
Specific Content Issues
Pre-Hearing Content Issues

Key issues:
o Notice
o Claims to pre-hearing disclosure or discovery of the evidence to be relied upon
o Delay in the processing of administrative proceedings
(1) Notice


Necessary, because without notice – other rights cannot be exercised effectively
Some key problems with notice:
o Forms of notice: two forms of notice:
 (1) Written: more common, probably what the court will require unless the context permits a different form
 (2) Oral: possible for some situations
 e.g. Webb and Knight
o Manner of Service: personal service will likely be required by the court (notice handed to or told to the party in some
personal way), unless the context permits otherwise
 If a large and indefinite number of people require notice it might be sufficient to post ad in newspaper
o Time: notice must be given long enough before the hearing date to give the party enough time to decide whether to
participate and time to prepare
 Giving notice by mail creates the possibility that it won’t be received in time
 The length of time needed will depend on the nature of the interests and the issues
 But, if the party is aware of the proceedings and the evidence unfolding, they will not necessarily need to be
given specific notice that a finding may be made against them (Krever Inquiry)
o Contents: notice must be detailed enough to enable effective participation
 But, in some contexts (i.e. public inquiry), lesser notice content will be required than where a court/tribunal has
the power to come to a finding of criminal/civil liability (Krever Inquiry)
Canada (AG) v Canada (Commission of Inquiry on the Blood System – Krever Inquiry) (SCC, 1997)
Facts: Ministers of Health at all levels convened an inquiry to examine the blood system following the HIV problem. Purpose was to
determine what caused the contamination of the blood system in Canada in the 1980s and to make recommendations. Per s. 13 of the
Inquiries Act, the Commissioner was required to give notice to parties against whom he intends to make findings of misconduct.
Proceedings lasted 2 years. On the final day of the hearings, such notices were delivered against 95 parties. Some recipients brought
applications for judicial review, arguing the notice was insufficient because there was no opportunity to respond.
Issues: When should notice be given and what are the limits on its content and wording? Was the notice given by the commissioner
reasonable from a PF perspective under the circumstances?
Held: Notice was sufficient.
37
Reasoning:

a commission of inquiry is not a court/tribunal, and has no authority to determine legal liability.
 Nonetheless, procedural fairness is essential, because the Commission’s findings could damage reputations.
 Procedural rights of the parties
o Inquiries Act s.13 “no report shall be made against any person until reasonable notice has been given to the person of
the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or
by counsel”
o If the commissioner is intent on making a finding of misconduct has to give reasonable notice
 Why was notice required and what type?
o Why?
 Required by order in council, Inquiries Act, common law
 Basis of the facts: the commissioner adopted the rules of procedure and practice in consultation and with the
agreement of all parties
o Type?
 They got written notice and it was personally served
 Many doctors received notice that they failed to adequately oversee, direct and provide resources for
the operation of Blood Transfusion Services at both nation and local level and as a result contributed to
and are responsible for failure set out below
 While notice came close to alleging the necessary elements of civil liability, none of them exceeded
Commissioner’s jurisdiction
 Use of word failed does not mean that person breached civil or criminal standard: unless there is something to
show that the standard applied is a legal on, no conclusion of law can be said to have been reached
 As the notice were issued in confidence the notices should be as detailed as possible
o When? (main argument)
o Appellant argued that they did not have adequate procedural protection
 Interpreted comments of the commissioner during the inquiry as assurance he had no intention of making
these findings
 Notice delivered on the last day of hearing after decision had already been made and no ability to call opposing
evidence or cross-examine witnesses
o Court held timing of notice was adequate even though right before recommendations made
 This was a major public inquiry, in which doctors had standing for years and had opportunity to be represented
by counsel and to ask questions thus adequate involvement
 Procedures adopted on consensual basis! Can’t say they were misled
o Timing of notice always depends on circumstances
 Although the notices should be given as soon as is feasible, it is unreasonable to insist that the notice of
misconduct must always be given early.
(2) Discovery and Disclosure




Post-Stinchcombe, the key question was whether there is a similar right to pre-hearing discovery in the administrative process
Benefits of pre-hearing discovery:
o Understand the case to meet
o Contributes to meaningful discussion and thus better outcomes
o More fair for the claimant whose interests are affected, avoids “trial by ambush”
o Makes the adjudicative process more fair and efficient (avoids adjournments to explore evidence not yet heard)
Policy reasons against discovery and disclosure:
o Protecting complainants who are the alleged victims of discriminatory conduct
o Chilling effect on lodging complaints
o Protecting other parties to the proceedings who are vulnerable
o Stalling the administrative process
o Protection of sensitive state secrets, information about national security (Charkaoui)
o Corporate espionage – where disclosure will require a giving up of competitive advantage because competitors will
scrutinize the proceedings to look for business secrets
Is the right to discovery a common law implied right? Or does it need to be explicitly spelled out in legislation?
o Debate in the case law
o Per Canadian Pacific Airlines (SCC): court won’t read in a right of discovery unless the statute is clear.
 Case was attempting to compel an employer to disclose info relevant as to whether it should be certified for
collective bargaining purposes. Statutory power to compel was limited to the hearing itself – doesn’t apply at
the pre-hearing stage.
38
 Narrow, restricted approach to statutory interpretation.
Per Ontario Human Rights Commission: right of discovery can be implied by common law and found in a statute.
Discovery has many benefits, and should be encouraged.
o Potential strategy: make an analogy to the criminal or civil discovery process
 Though sometimes this isn’t effective because courts will find that the interests at stake in the administrative
process are not as pressing
What is the appropriate level of discovery required? How detailed must it be?
o

Alberta Administrative Procedures and Jurisdiction Act
4. Before an authority, in the exercise of a statutory power, refuses the application of or makes a decision or order adversely affecting the
rights of a party, the authority
(b) shall inform the party of the facts in its possession or the allegations made to it contrary to the interests of the party in
sufficient detail
(i) to permit the party to understand the facts or allegations, and
(ii) to afford the party a reasonable opportunity to furnish relevant evidence to contradict or explain the facts or
allegations,
and
(c) Shall give the party an adequate opportunity of making representations by way of argument to the authority.
Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General Hospital) (Ont Div Ct,
1993)
Facts: Board of inquiry struck under Human Rights Code to hear a complaint of racial discrimination made by 10 nurses employed at the
hospital. Board made an order requiring the investigator to provide the hospital with all statements made by the complainants to the
commission at the investigation stage, and the identity of all witnesses. Commission applied for judicial review, arguing that the Board did
not have the legal authority to compel this kind of disclosure to the hospital.
Issues: Did the Board overreach its legal authority by requiring the Commission to disclose this information? What degree of disclosure is
required to meet the duty of fairness under these circumstances?
Held: No breach of authority. Disclosure is appropriate.
Reasoning:
 Commission is concerned that requiring disclosure would discourage victims of racial discrimination from making complaints but
court says no: public importance that complainants appreciate
 Basis for Courts decision to require disclosure?
o Statutory – s.12 Statutory Powers of Procedure Act: clearly recognizes the authority of a board of inquiry to order the
production of all documents which are subject of the order in this case
o Common Law – Stinchcombe: trial by “ambush” approach in criminal process inept
 Board equates proceedings under Human Rights Code to the civil process
 Significant that in civil proceedings there is a longstanding tradition of discovery and disclosure: full discovery of
documents and oral examination of parties and witness are familiar feature of the practice
 Sopinka in Stinchcombe says this change in the civil system was based on the principle that “justice was better
served when the element of surprise was eliminated from trial and the parties were prepared to address issues
on the basis of complete information of the case to meet”
o Common law PF: although Nicholson, Night and other general cases of PF from SCC are not mentioned, they are
consistent with the line of reasoning
 Need to know the case to meet and court should be facilitating this in order to make admin process rational and
ensuring that appropriate treatment of individuals
 Court is attentive to the concept of wanting to protect complainants
 If this had been investigative stage outcome might have been different, could have said it was too early
 But once it gets to formal hearing with serious allegations, impugned party has a right to hear
complaints against them before it come to hearing.
 How would s.4 of the Alberta Administrative Procedures and Jurisdiction Act affect the question of disclosure?
o Seems to make it more difficult – have to establish that legal rights are adversely affected
o Are hospitals legal rights adversely affected by the proceedings of the Commission?
 Could affect reputation, career prospects of managers
 Nature of the interest affected seems to be pressing enough to satisfy threshold question
o But would commission count as authority in possession of information or is the relevant info in the hands of the party?
(Lewans: good argument based on how statute applies to the facts)
 Do you think there are ever any policy reasons for refusing discovery or disclosure of documents?
o Protecting complainants who are alleged victims of discrimination etc.
39
o
o
 Here court didn’t think that this outweighed duty of PF in disclosure
Time/cost: requiring full disclosure could hinder efficiency and undermine the purpose of admin process
State secrets
CIBA-Geigy Ltd v Canada (Patented Medicine Prices Review Board) (FCA, 1994)
Facts: under Patent Act, the Board scheduled a hearing to determine whether the drug marketed by CIBA-Geigy was being sold at an
excessive price. Consequence of such a finding would be a price reduction order, or payment to the Crown. Part of what the Board
considered was a document outlining the “guidelines” for market price. CIBA-Geigy sought disclosure of these documents. Board refused.
CIBA-Geigy brought an application for judicial review.
Issues: Is the Board required to give the discovery in advance?
Held: No discovery required of the guidelines documents.
Reasoning:

CIBA-Geigy is entitled to know the case against it, but this does not mean it is permitted to obtain all of the evidence obtained by
the Board in carrying out its regulatory function in the public interest.
 No Stinchcombe/criminal analogy here: yes serious economic consequence for an unsuccessful patentee at this hearing and
possible effect to corporation’s reputation but this is not a criminal court – it is a regulatory tribunal.
 The public interest weighs against disclosure
o Fairness is a matter of balancing diverse interests.
o Board must balance its duty to give every opportunity to a respondent to be heard against its responsibility to ensure
that it orders do not have the effect of limiting its ability to discharge its responsibilities in the public interest on an
ongoing basis
 Efficiency concerns: in order to efficiently protect public interest, hearing shall not be unduly prolonged
o The board’s function is not to solely obtain information for investigative purposes – its primary role is to monitor prices
o To meet this object, board must be confident it is getting candid, complete and objective advice from staff
 Administrative officials might be less willing to give free and candid advice if it knows its report is going to be
disclosed to the public or the other side
 Concept of PF is eminently variable and its content is to be decided in the specific context of each case and the content to be thus
taken into account consists of the nature and seriousness of the matters in issue
 Question: would outcome have been affected by s.4 of the Administrative Procedures Act?
o If board makes adverse findings it can make some serious remedial orders so threshold interest question is probably met
o But (b) says “sufficient detail” so maybe question isn’t if disclosure is required but whether Enough is given
The Actual Hearing: Procedural Fairness Issues

Key issues:
o Written, oral, or a mixture of both?
o Entitlement to be represented by counsel?
o Right to cross-examine?
o Evidentiary issues – what types of evidence may a decision maker rely on?
(a) Oral versus Written Hearings




Oral hearing: a face-to-face encounter with the actual decision maker (or someone formally and legally delegated by that
decision maker to hear and receive evidence) and the other parties (if applicable)
o Traditionally considered a requirement of natural justice. Recall: natural justice was “all or nothing”.
o Historically required whenever there was a duty to act “judicially” in accordance with the principles of natural justice
Modern principle: no presumption in favour of oral hearings.
o Evolved as the procedural terrain expanded – an entitlement to procedural fairness didn’t mean an entitlement to an
oral hearing
o With the advent of a more variegated, contextual approach to procedural fairness, oral hearings are required only in
special circumstances
o Agencies given significant discretion
General rule: claim to an oral hearing is highest when credibility is at issue.
o Depends on context – depends on what is at issue in the proceeding
o Per Khan, an oral hearing will be required where credibility is the central issue, the evidence is circumstantial, and the
consequences severe (majority)
o But, where the consequences aren’t serious, and oral hearing may not necessarily be required even where credibility is a
key issue (per Khan dissent)
Countervailing policy considerations:
o Efficiency: e.g. Baker. Situation was serious, but there were concerns about efficiency, so no right to an oral hearing.
40
o
Should be some respect for the procedural choices made by the decision maker where there are good reasons for them
(per Khan dissent)
Alberta Administrative Procedures and Jurisdiction Act
6 Where by this Part a party is entitled to make representations to an authority with respect to the exercise of a statutory power, the
authority is not by this Part required to afford an opportunity to the party
(a) to make oral representations, or
(b) to be represented by counsel,
if the authority affords the party an opportunity to make representations adequately in writing, but nothing in this Part deprives a party of
a right conferred by any other Act to make oral representations or to be represented by counsel.
Khan v University of Ottawa (ONCA, 1997)
Facts: Law student failed evidence so GPA dropped below the minimum, and had to take an additional semester. She appealed her grade,
arguing that she had submitted a 4th answer booklet that wasn’t marked (couldn’t be located). Committee met without providing her
notice of the meeting or asking her to appear, and dismissed her appeal. She appealed to the University Senate Committee, who also
denied her appeal. She sought judicial review.
Issues: Was an oral hearing required in the circumstances?
Held: Yes.
Reasoning (Laskin JA):
 Nature of interest affected = serious: delayed career, render valueless previous academic success
 Faculty committee relied entirely upon circumstantial evidence: strict procedure and efforts of exam administrator, fact that
there had never been an allegation of a lost booklet before, fact that booklets were numbered 1/3, 2/3 3/3 and fact that very
little was written in 3rd booklet
 Credibility was the central issue before the committee: did they believe here or not?
o K had explanation for the facts on which committee relied – were obliged to hear her before rejecting her explanation
 Should have given her an oral hearing since credibility was central issue, should have made inquiries to determine if proper
procedure was followed and given her opportunity to contradict factors relied on
o This didn’t happen so committee denied her PF
Dissent (Finlayson JA):
 What would normally be a purely academic issue was made into a character issue by her.
o Shouldn’t be able to elevate standard of the review by simply bringing credibility into play
 Evidence of professor was the booklets that were handed in were poorly done and that more of the same wouldn’t have made a
difference for her mark.
 Efficiency argument: would take months to hear all the students: would impose unreasonable procedural burden on the
university
 Majority relied on Singh which dealt with a much more serious matter and therefore oral hearing was vital. In this case she would
have to repeat a semester only.
Question: How would you asses the outcome of this case based on:
 Baker Factors
o (3) Laskin and Dissent disagree
o (4) doesn’t seem to be in play here
o (5) if law faculty doesn’t have oral hearings as a matter of policy, should ask Dean why this is and assess whether it’s a
good reason, otherwise leaves it open to an argument like in this case
 S.6 Administrative Procedures and Jurisdiction Act
o No added support for an oral hearing but doesn’t exclude it either
Ratio: where an administrative decision turns primarily on credibility and carries with it the potential for serious adverse consequences
the doctrine of procedural fairness will require an oral hearing.
(b) Open versus Closed Hearings




Issue: should the hearing be open to the public?
o Traditional view: treated as within the discretion of the tribunal.
General rule: presumption in favour of openness
Benefits of openness:
o Transparency
o Public accountability
o “Sunlight is the best disinfectant” (Justice Brandice, USSC)
Countervailing policy considerations:
o Protection of the privacy of victims
41

o Ensuring witnesses are willing to testify
o Protection of national security information
o Protection of commercially competitive information
Places where this arises:
o Immigration Act:
 Pre-1992 there was a presumption against openness. An equivalent provision was found to be an infringement
of s. 2(b) – freedom of expression and freedom of the press.
 So, 1992 amendments to the Immigration Act made all hearings open
 Exception: where the adjudicator was satisfied that there was a “serious possibility that life, liberty, and security
of any person would be endangered by a public inquiry”
o Convention refugee hearings: conducted in camera unless the claimant applies to have it public
o Professional discipline hearings: concern with protecting reputations
 Justification is weak in an era of strong assertions of the need for greater public accountability of professions
(c) Right to Counsel at the Hearing







General rule: no absolute right to counsel (Re Men’s Clothing Manufacturers)
o But, where the matters are complex and involve questions of law, there may be a right to counsel with respect to the
legal questions only (Re Men’s Clothing Manufacturers)
o Administrative Procedures and Jurisdiction Act (s. 6): representation by counsel is not a necessary component of the
procedures subject to the Act. Does not require, but does not exclude, the right to counsel.
 So, must look to the Baker analysis
o Parties are free to agree to give an entitlement of a right to counsel
o Right to counsel is often provided for in statute
Benefits:
o Often an implicit assumption that lawyers are a good thing to have in the adjudicative process
Countervailing policy considerations:
o Introducing lawyers means less efficiency and effectiveness (per Arbitrator’s preliminary ruling in Re Men’s Clothing
Manufacturers)
o Can complicate matters if one party doesn’t have adequate access to counsel, where a lawyer loses sight of the
specialized nature of the hearing
o Additional time/costs – fear of increasing costs could prevent some issues from coming to arbitration altogether
When will there be a right to counsel?
o Where it is required to give a person facing a deprivation of liberty and security a proper and full opportunity to present
his case (Howard v Stony Mountain Institution).
o Depends on the circumstances of the particular case: its nature, gravity, complexity, capacity of the individual to
understand the case and present a defence (Howard v Stony Mountain Institution)
Relevance of statute: will be an entitlement to counsel when some or all of the following elements are found within the enabling
legislation or implied from the application of the statute (per Re Parrish):
o (1) Where an individual or witness is subpoenaed, required to attend, and testify under oath with threat of penalty
o (2) Where absolute privacy is not assured and the attendance of others is not prohibited
o (3) Where reports are made public
o (4) Where an individual can be deprived of his rights or livelihood
o (5) Where some other irreparable harm can ensue
In some situations, counsel will be allowed to be present, but not the parties that counsel represent (e.g. where commercially
sensitive information is being adduced and it is thought to be inappropriate for business competitors to be present)
o Allowing counsel to be present is a compromise
Claim to a particular lawyer?
o Right to counsel does not extend so far as an absolute right to the lawyer of one’s choice, regardless of the
circumstances
o Courts give tribunals considerable discretion whether to grant adjournments in situations where preferred counsel isn’t
available
Howard v Stony Mountain Institution (FCA, 1985)
Facts: Inmate of prison was involved in an incident which resulted in 5 charges against him under the Penitentiary Service Regulations. He
plead guilty on 2 of the charges, but not guilty on the charge of using indecent language, disobeying a lawful order. Inmate requested
counsel at the hearing. Request was denied. He brought an application for prohibition. Trial division dismissed his application.
Issues: Did the prisoner have a right to counsel at the hearing? Is this right guaranteed by s. 7?
Held: No absolute right to counsel but here he had a right to counsel at the hearing. Prohibition should have issued.
42
Reasoning:
 There is a right to representation by counsel if the circumstances are such that it is required to comply with the prisoner’s right to
a proper and full opportunity to present his case. Here, what was at stake was the liberty and security of the inmate, and his s. 7
right not to be deprived thereof except in accordance with the principles of fundamental justice.

But, s. 7 does not create an absolute right to counsel – this right arises from the requirement to provide the person an
opportunity to adequately present his case.

Whether or not the person has a right to representation by counsel will depend on:
o the circumstances of the particular case,
o its gravity (nature of the interest affected)
 here: principal feature of case was that whole of appellant’s earned remission was in jeopardy, and that alone
suggests need for counsel
 haven’t lost right to liberty just because you are incarcerated
o its complexity,
 Here: lack of particulars for offences, notoriously vague charges – “an act calculated to prejudice discipline and
good order”
o the capacity of the inmate himself to understand the case and present his defence.
 Here: nothing to suggest appellant couldn’t defend himself but he obviously felt need for legal representation
and also doesn’t make sense given that we recognize right to counsel in the courts no matter how trivial the
charge. In this case would cause accused to loss of his liberty
Commentary: appeal to SCC denied on the basis of mootness (Howard had already been released).
New Brunswick (Minister of Health and Community Services) v G(J) (SCC, 1999) – Referenced
Facts: mother was resisting an application by Child Welfare to renew an order placing her 3 children in custody of the state. She wished to
be represented by counsel. A policy under the Legal Aid plan prohibited the granting of legal aid certificates in custody order renewal
proceedings. She argues that this refusal violates her s.7 rights.
Issues: Does s. 7 require a right to be represented by counsel in situations where there is an application by Child Welfare to renew an
order placing her 3 children in custody of the state?
Held: Yes. State-funded legal counsel is required to comply with s. 7 but not always – contextual analysis.
Reasoning:
 Just because s.7 rights are engaged doesn’t give an automatic right to a lawyer, even if this particular context where stakes are
high – seriousness and complexity of the proceedings will tilt the scales towards allowing counsel and the capacity of the parents
will inversely tilt the scales.
 Seriousness of the interest at stake
o Interest at stake are of the highest order - few state actions have as profound effect on both parent and child rights to
security of person (could also argue liberty interest)
o Seriousness will vary according to length of the proposed separation of parent and childe
 Here: state seeking to extend period by 6 month over the year that they have already been apart
o S.7 interest engaged her – in accordance with PFJ?
 Remember Charkaoui –have to have a mind to context and public interest to determine what PFJ required in a
particular case
 Complexity of the procedure
o Effectively an adversarial proceeding, occurs in court of law
o Parties responsible for planning and presenting case
o Rules of evidence relaxed but still have to adduce evidence, cross-examine and make objections
o Length of time of the proceeding will vary – if simple question of fact and credibility lean to not needing counsel
o Here: all other parties represented by counsel, hearing scheduled to take 3 days and Minister had 3 affidavits including 2
expert reports
 Capacities of the Appellant
o Unrepresented parents would normally need to have superior intelligence/education communication skills, composure
and familiarity with the legal system
o Here: no evidence that appellant had these skills
 Potential s.7 violation in this case (if hearing went ahead) would have been the result of failure of government to provide
appellant with the state-funded counsel under it legal aid
o Not saved by s.1: assumes limit prescribed by law, pressing and substantial objective, rational connection to policy and
minimally impairing
 The negative impacts of the policy far outweigh the positive budgetary savings
o Government not required to provide a lawyer to every parent just where representation is essential to ensure a fair
hearing where the parent’s life, liberty or security of person is at stake
43
Concurring opinion (LHD):
 Seem to be saying that right to counsel under these circumstance not as rare as Lamer majority suggests
 Counsel must be ordered whenever a fair hearing will not take place without representation
 Internal balancing that seems to be going on in s.7: have judges disagreeing whether right to counsel is generally triggered under
these circumstances.
Right to Counsel & Section 7: Is there a right to state-funded counsel?
 S. 7 does not create an absolute right to counsel (Howard v Stony Mountain Institution)
 But, where s. 7 is engaged, the proceedings are serious and complex, and the individual does not have the capacity to adequately
represent herself, it will be an infringement of s. 7 and not saved by s. 1 for the government not to provide state-funded counsel
(New Brunswick v G(J))
o Liberty: engaged by an interference on fundamental choices of how to raise a child
o Security of the person: serious state imposed stress
 Government is obliged to provide legal aid where the representation is essential to ensure a fair hearing when a parent’s life,
liberty, or security of the person is at stake (New Brunswick v G(J))
(3) Disclosure Problems (at the Hearing Stage)



Issue: when things happen at the hearing that revive the disclosure requirement
o Ex: where an administrative decision maker hears or receives evidence in the absence of an interested party
General principle: a party is entitled to know what evidence and representations have been given, and is entitled to an adequate
opportunity to respond (Kane v Board of Governors of UBC)
o Disclosure is a basic element of the common law of natural justice
o Disclosure is generally required unless some competing interest prevails
o Key rationale: enables a party to know and respond to information that the agency has and that may influence its
decision

Official Notice at Hearing Stage:
o Official notice = extent and manner in which an agency may, in making a decision, use material that is not introduced in
evidence
o Crucial issues are accommodation of the expertise and accumulated knowledge of the agency and the need to permit
parties to know about and respond to material that may influence the decision
Disclosure and Official Notice: Access to Information Statutes
o Can be powerful tool: can use access to information requests to get background info that might be relevant to you case
o Just because info is exempt from disclosure under “freedom of information and privacy laws” doesn’t mean it will also
be denied in proceedings to which rule of natural justice and PF apply
o Plus Access to Information Act says it “complements” not “replaces” existing entitlements to access and “not intended to
limit any way” existing rights to access government information.

Disclosure and Official Notice: Access to Agency Information
Four categories of Disclosure Problems (associated with existence and extent of right to disclosure):




(1) Disclosure of collected information: an administrative agency may have information about an individual, and the individual
may want this information.
(2) Disclosure of the identity of a source: an agency may have received information from other persons, and the individual
affected may want to know the identity of the informants.
(3) Disclosure of competitive information gathered about a business: an agency may have information about a business, which
other parties want to access.
(4) Disclosure of material that the agency has created itself: an agency may have composed staff reports or policy
recommendations that others may want to access.
o Three major arguments can be made for disclosure
 Basic belief that individuals should have the right to know what government knows about them
 Increases effectiveness of participation in the decision making process by enabling applicants to respond to
information to be used by the board and increase acceptability and accountability
 Tends to improve the quality of reports by exposing carelessness and vagueness
o Reasons for refusing disclosure
 Confidential – often unconvincing reason
 Administrative efficiency
 May cause harm or suffering (i.e. to a worker in which terminal cancer was found during a routine exam)
44

 Doctors fearing litigation
 Privilege
Criminal disclosure process: under Stinchcombe, an investigation file must be as complete as possible and all evidence that might
be relevant to the defence must be disclosed – per La this includes a duty to preserve information and relevant evidence.
o But, administrative proceedings will be different (Charkaoui)
Disclosure of Collected Information:
 General rule: where the stakes are high, fairness requires that collected information be disclosed so that the claimant can
effectively answer the case against him (Re Napoli).
 Where s. 7 is engaged (i.e. where the consequences are severe), there is a duty to preserve, retain, and disclose information.
Destruction of notes will be a breach of this duty (Charkaoui)
o Stinchcombe won’t directly apply – this is the administrative law arena
o BUT, the question of whether s. 7 applies does not depend on a formal distinction between different areas of the law,
but on the severity of the consequences
Disclosure of Identity of the Source
 Will be no common law requirement to disclose sources where it may impact prison safety (Gallant)
o This will violate the principles of fundamental justice since the prisoner will not be given a real opportunity to answer the
allegations, but it is saved under s. 1 due to safety concerns
 But, where a transfer is disciplinary in nature, the record must contain some underlying information so the prison can verify its
reliability (Gallant dissent)
Re Napoli and Workers’ Compensation Board (BCCA, 1981)
Facts: under WCB Act, an injured worker can apply for compensation. Given minimum disability pension. He appealed to the board of
review. Prior to the hearing, a WCB compensation consultant provided his counsel with a 4-page summary of the information in his file,
but refused to disclose 16 pages of medical records that they had on file. The Board of Review heard the appeal, but declined to disclose
medical reports in Napoli’s file. N therefore appealed to commissioner of WCB.
Issues: Was the WCB required by natural justice to give Napoli a full opportunity to see his file when he appealed the original disability
awards decision? Do the rules of natural justice require disclosure, and if so – to what extent?
Held: Yes. The summary was insufficient, he should have been granted full access to the medical reports.
Reasoning:
 How does compensation process work?
o Worker is injured
o Worker files a claim with WCB
o Officer hears application: officer reviews written correspondence with worker and medical opinions filed on worker’s
behalf
o Officer makes recommendation to WCB to implement
 In this case, recommendation was that Napoli suffered a disability worth 5% of total disability (quadriplegic
being total disability, never work again)
 These type of claims are controversial: if you assess someone at 5% of total disability, you say they suffer a
compensable damage, but that award isn’t very big
o Entitled to disability pension of $33.66 a month
 The report contained damaging statements about N made by the doctors and N would undoubtedly want to cross-examine the
writers of the report and challenge observations.
o Can’t do much standing/bending/lifting so he can’t do many things, such as gardening, but his garden looks good…court
says there is evidence he gets help from family and friends, so this information is controversial
o Also mentions a mental condition (or something?)
o Statement in report that throughout examination, the claimant exaggerated his injuries
 Basically saying they don’t believe Napoli’s statement about his injuries
o To challenge effectively would require production of original reports

A high standard of justice is required here, because the stakes are high for Napoli.
 Baker Factors:
o The nature of the decision
 I would focus on the nature of the interest affected: economic interest is affected, but more importantly, this
decision impacts a specific individual who otherwise, an individual who would not be able to make a
subsistence income.
 Judicial type process (weighing evidence) – PF – b/c affecting one person’s economic interest
o The nature of the statutory scheme
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




Appeal hearing, so if this appeal is the claimants last chance of challenging this, greater PF accrue to the
claimant.
o The importance of the decision
 This significantly impacts Napoli
o The legitimate expectations, if any
 Not so much, need more evidence regarding past practice.
o Respect for procedural choices made by the decision maker
 In order to convince doctors to give us medical advice/opinions, must be able to assure them that these
opinions won’t be shared with claimant or challenged in hearing. Does this reason outweigh the other 3 baker
factors that weight in favour of disclosure?
 TO ensure accountability and that the WCB system works well, the fact that doctor’s are wary does not
outweigh this. In fact, doctor’s knowing they may be called as witness may make them ensure they do
a good job/transparent/accountable to decision they make
Fairness requires that the original reports be disclosed in order for him to effectively answer the case against him. A provision of
a summary is insufficient.
WCB’s justification that doctors would not be as frank and honest if they knew the reports would be seen by claimants,
employers, and unions is insufficient –
o Does not conform with principles of PF
o It fails to account for the benefit of increased accountability, diligence, and care.
Question: Why did judge think that the file summary did not satisfy the requirements of PF? (consider Baker)
o Impact on individual
o Nature of the decision involved (formal adjudicative process dealing with witness, documentary evidence and an
impartial decision-maker
o Respect for an agency’s process (5th factor) but need good reasons
 The policy reasons that might weigh against disclosure are not convincing here “frank candid assessment”
reasoning not convincing
Question: how does this case compare to Northwestern Hospital case and CIBA-Geigy?
o In Northwester Hospital: once racial complaints reached board of inquiry stage, hospital lawyers sought access to all
witness statements because to defend clients needed to probe veracity
 Seemed to follow logic here: serious allegations, impact on the party involved seems to justify disclosure
o In CIBA-Geigy: court seemed to accept government policy justifications for non-disclosure
 In order to get candid advice from cabinet officials, their info needs to be kept confidential
Kane v Board of Governors of UBC
-
-
-
-
What happens if after hearing is closed someone sends additional evidence to adjudicator, must evidence be copied for the
other side? What happens if an administrative tribunal or decision-maker hears oral evidence or receives documentary
evidence in the absence of an interested party?
Facts: Professor was suspended by the President of UBC for improper use of computer facilities. Appealed to Board of
Governors, of which the President was a member. Board held a hearing, Kane and the President attended. Following the
hearing, the Board had dinner and met without Kane to discuss the case. Kane appealed for review, application was dismissed.
Kane appealed.
Issues: Was the Board under an obligation to disclose the information discussed at the dinner meeting to Kane?
Held: Yes. If the Board discusses information without the party present, they must disclose this information to that party.
Principle: the Board had an obligation to postpone further consideration of the matter until all parties could be present. The
Board should have disclosed the additional facts discussed and afforded him a real and effective opportunity to correct or meet
any adverse statement made.
What if during a coffee break during a hearing, a lawyer or witness comes to talk to the Board about the hearing. Board should
say let’s save that for the hearing. These conversations could otherwise compromise the fairness of the hearing. If you receive
evidence outside the hearing, that will influence the hearing without giving the party a chance to respond or challenge it.
Charkaoui v Canada (Citizenship and Immigration) (SCC, 2008)
Charkaoui #1: about constitutionality of the security certificate regime
Charkaoui #2 Disclosure of CSIS information to Charkaoui
Facts: As above. Counsel for the Ministers revealed that by mistake, they failed to disclose to Charkaoui a summary of two interviews that
he had with CSIS before his initial arrest. The notes were later destroyed under a CSIS internal policy. Charkaoui sought to stay the
proceedings, quash the security certificate, and be released from custody – arguing that his right to procedural fairness was violated by
the minister’s refusal to disclose.
Issues: Does procedural fairness require that the notes from a CSIS interview prior to the applicant’s arrest be disclosed?
46
Held: Yes. Full disclosure and preservation of evidence is required where the consequences are serious.
Reasoning:
 What information was Charkaoui attempting to obtain in this case? Why did CSIS refuse to disclose this information?
o Charkaoui wanted original interview notes. CSIS says our legislation requires us to destroy these notes. Section 12 of CSIS
Act:
 Imposed a duty on CSIS to collect by investigation or otherwise to the extent it is strictly necessary and retain
and analyze information that may constitute threats to Canada.
 They argue that Act tells them to retain information only as strictly necessary to protect national
security to Canada
o This seems to emphasize how important it is to retain information, not destroy it
 What practical difference does it make whether a person has access to original notes or to summaries of those notes?
o Many reasons. In criminal proceeding it’s to prevent police from lying on the stand, must have their original interview
notes to show discrepancy. Also applies to catching a Crown Witness in a lie
 Other way around too, Crown prosecutor will get a witness statement which the witness changes later
o By giving summaries giving part of the picture, not whole picture. And this leads to questions of whether the part of the
picture CSIS gave is a true representation of the facts
 Minister argued that documents contained volatile information and had to be destroyed before they got in the wrong hands
 Court held that CSISA required investigating officials to retain operational notes to ensure “complete and objective version” of
facts was available for issuing & reviewing security certificate
 Principles of criminal law
o Per Stinchcombe in the criminal process, an investigation file must be as complete as possible and all evidence that
might be relevant to the defence must be disclosed
o Per La this includes a duty to preserve information, exhibits, recordings, investigation notes and any other relevant
evidence.
o Original notes and recordings are best evidence – haven’t been cleaned up, could be gold mine for cross-examination
 Should Stinchombe apply in the context of security certificates? Are the facts of this case analogous to a criminal prosecution
so that the Stinchombe doctrine applies?
o Stinchombe: anything relevant to a criminal case and in Crown’s possession MUST be disclosed. If you do not do so and
breach Stinchombe is a good argument for a stay of proceeding or at least a mistrial
 In this case, can never get back the notes CSIS destroyed, so is it better to let C walk, or proceed with
prosecution?
 In a criminal case, maybe. But this isn’t a criminal case
o The security certificate proceedings are different than a criminal trial. Government Lawyer relying on Blencoe obiter said
“court has often cautioned against direct application of criminal justice standards in admin law area…should not blur
concepts which under our Charter are clearly distinct
o Court says: Whether or not s.7 applies does not depend on formal distinction between areas of law but on the severity
of consequences of state’s actions on individuals life, liberty and security of person
 Here affects fundamentals of s.7 so need a form of disclosure beyond mere summaries.
 Can’t avoid disclosure requirement under PF by deeming this “administrative”
 Here consequences are potentially more severe than criminal charges and process provides for broader grounds
of culpability and lower standard of proof.
 Consequences of certificate being issued demands great respect for PF
o This is an administrative process, not criminal, and the goal of this admin process is to preserve national security. Does
this limit disclosure that Charkaoui should have in his case? Charkaoui #1 said you do not get access to all the
information against you, you have the right to be reasonably informed (PFJ allow for this) BUT that right is shaped by
national security context. So right to be reasonably informed does not go as far as in a criminal process. Here we’re
dealing with concerns over national security. Some of that information may not be shared.
o This is Charter analysis, Baker analysis is below:
 How did court assess Baker Factors in the context of this case? Which factor or factors do you think led the court to conclude in
Charkaoui’s favour?
o Factors in favour of disclosure =
 Nature of decision and interest affected (is this administrative or judicial, court has trouble with this. Not purely
administrative as judge involved who is supposed to assess the reasonableness of facts as alleged by minister,
but not full judicial because this doesn’t look judicial: in camera, ex parte, no criminal offence alleged, etc),
 Nature of interest affected: impacts one individual specifically
 Role of decision in statutory scheme (2) – Minister’s interpretation of section 12, court does not agree with this.
Provision talks about preserving evidence, nothing about destroying it. Even if there is national security issue,
this means for sure should preserve to be able to assess that risk
47

Judge must serve a rule of law function, which is hard enough under the security certificate regime,
and CSIS makes that job even harder by not giving judge all the facts. Judge has been cleared to see
these facts and admin rationale for restricting disclosure to judge doesn’t hold
 Importance of the decision – pretty clear
o Factors against disclosure =
 Policy reasons (public safety, national security)
 PF in this context includes procedure for verifying evidence in a manner consistent with legitimate public safety interests
o Destruction of the evidence compromises the very process of judicial review
o CSIS should be required to retain all info in its possession and disclose it to ministers and judge who will be responsible
for verifying it
o In end Judge filters verified evidence and determine limits of access for accused
Question: Do you think C should have had access to original notes or is policy considerations enough to justify filtering info through judge
or special advocate?
 For interviews with detainee himself – doesn’t seem to be a good reason for refusing disclosure
 Interviewing and naming agents and witnesses etc. – filtering process might be appropriate
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (FCA, 1989)
Facts: Gallant was a prisoner who was suspected of extortion and drugs. The warden intended to transfer him to a maximum security
facility, based on confidential information of other prisoners (snitches). Specific information about the investigation was not disclosed on
the grounds that it would jeopardize the safety of the victims of his actions. G wanted the names of the witnesses so he could test veracity
of their statements. He applied for an order quashing the decision, wanted opportunity to challenge information from undisclosed
witnesses. He was successful – it was found that the notice given was insufficient to satisfy the requirements of procedural fairness. The
deputy commissioner appealed. Prison argues that if this information is disclosed inmates will no longer come forward and inmates safety
would be at risk
 Consider Baker factors engaged: impact of decision on individual (G and informants) and on the other hand, the admin body’s
choice in process (have to sensitive on how far to push the content of the PF duty in this context)
Issues: In a prison circumstance, does procedural fairness require disclosure of the source of information? Were the circumstances
sufficient to relieve prison of obligation to give more detailed notice under both PF and s.7?
Held: No disclosure under both common law PF and s.7.
Reasoning:

The requirements of procedural fairness will vary with the circumstances.

Notice here was given, but it was insufficient – it did not disclose the identity of the informants. The warden argued that this was
because the informants would be in danger of death or serious injury from the inmate population if they were disclosed.
 Rejects G’s argument for disclosure on a common law basis - Parliament cannot have intended when it gave the commissioner
the power to transfer the inmates, that he is not required to be bound by the rules of procedural fairness when the application of
these rules would endanger the lives of other inmates.
o Uses legislative silence to indicate limit on PF
 Strange based on previous case law
o Better way might be to use Baker framework and focus on 5 th factor or point out that decision impacts individuals
other than G
o Rules of PF are flexible – 2 meanings
 Same rule will produce different results if applied to different factual circumstances
 Flexible in the sense that they are applied as a matter of statutory interpretation, according to the specifics of
each case and not to be used to defeat the achievement objective of a particular statute
 Balance needs of admin process question
 In absence of express procedural provision, must be found to implied by statute
 Rejects G’s argument for disclosure under s.7
o Re: s.7 – the right to a fair opportunity to be heard is guaranteed by the principles of fundamental justice. The decision
to transfer was not made in accordance with the principles of fundamental justice since the prisoner was not given a real
opportunity to answer the allegation against him.
o Ends up rejecting it on basis of s.1 – considers whether Penitentiary Act pursuant to which decision to transfer are made
and gave wide discretion to prison authorities meets s.1
 In a free and democratic society it is reasonable perhaps necessary that such discretion be conferred on
penitentiary authorities.

Note from Lewans: both common law and Charter analysis doesn’t seem very cogent – these snitches will likely be shived in the
shower. Warden also likely promised not to share identities of snitches.
Concurring opinion (Marceau):
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
The audi alteram partem principle cannot ever be completely disregarded other than in a case of exceptional emergency and for
a short period of time. Question is can confidentiality requirement influence the duty of PF as much as it did here to prevent the
need to disclose identities compared to can it relieve decision maker from his PF duty.
o Important distinction because above decision seems to suggest that the duty can be disregarded
o In regard to the nature of the problem faced by the warden and responsibility toward those entrusted to his case he was
not required to give more information
Dissent (Desjardins):
 the transfer is a disciplinary measure. Though the prisoner already has limited liberty, but this can still be significantly impacted
by a transfer to a maximum security prison.
 When confidential information is relied on by prison authorities so as to justify a disciplinary measure, the record must contain
some underlying factual information from which the authorities can reasonably conclude that the informer was credible or the
information reliable.
 Reliability may be demonstrated in a number of ways – by independent investigation or by corroborating information from
independent sources.
 Here, no independent investigation was carried on. I would have dismissed the appeal for lack of satisfying affidavits.
(5) Right to Cross-Examine


Per Alberta Administrative Procedures and Jurisdiction Act – right to cross examine is not guaranteed by the legislation
o Right to cross-examination can be difficult to get
General rule: must convince the court that the nature of the decision is such that you should be given an opportunity to cross
examine
o If credibility is a central issue and the impact of the decision on the individual is pressing (Re B and Catholic Children’s Aid
Society)
Innisfil (Township) v. Vespra (Township)(1981 SCC)
Facts: Municipality bringing a case before the board in Ontario, applying to annex lands that belong to another municipality. The city of
Barrie Ontario is expanding its city limits and wants to rewrite the boundaries with the neighboring towns. This hearing dealt with a
dispute about how fast city of Barrie will grow. The provincial minister of the treasury sends a letter to the board and confirming the
growth to Barrie’s proposed by amount. The municipal board said that on the facts it would not have agreed with Barrie; the board also
held that the minister’s delegate who delivered the additional evidence could not be subjected to Cross-Examination.
Issue: can the minister send someone with a letter to the hearing, containing crucial evidence? And should CE be allowed? Is it a breach of
PF to not allow CE?
Reasoning
Baker factors:
1) What is the nature of the decision in this case? The jurisprudence tends to distinguish hearings with a formal trial type process
(evidence tendered before a trier of fact), and administrative hearings or at the far end legislative functions like cabinet
proceedings where the court is very reluctant to impose any kind of decision on them. Here, this is a provincial municipal board
whose job it is to entertain applications for redrawing the boundaries of municipalities. There is a variety of different competing
interests at stake, all of which are being weighed and considered by this admin body. This seems to be more administrative, a
policy decision rather than individual rights
2) Statutory framework – the SCC doesn’t address this in depth. If you want a right to CE the first place you should look is the
enabling legislation, or the general statute, APJA. The procedural format adopted by the admin tribunal must adhere to the
statute of the board. The process of interpreting and applying statutory policy will be the predominant influence on the tribunal.
This is the most important part of their decision – the enabling legislation and the general statute ground the right to CE.
3) The nature of the interests affected – the land won’t be expropriated from the landowners, although the market value of their
land may be changed. However this doesn’t seem as serious as prisoner’s being transferred, or being subjected to security
certificates.
This case is trying to establish a threshold for when CE is and is not appropriate as a matter of PF. Administrative processes are varied and
context is important. In some situations providing a right to CE might make the hearing unwieldy and burdensome for an admin tribunal.
We look at the Baker factors to determine whether CE is reasonable.
Re B and Catholic Children’s Aid Society
Facts: Claimant’s name was put on the provincial Child Abuse Register following an investigation into child abuse conducted by a social
worker. The social worker had interviewed the 12 year old daughter of his girlfriend, and an allegation of sexual abuse was made. Police
didn’t press charges as they decided there wasn’t enough evidence (girl changed her story). He applies to have his name struck off the
register. During the hearing, evidence was given by the social worker - but this was all hearsay.
Issues: Did procedural fairness require that the claimant be given the opportunity to cross examine the original source and the subsequent
reliance amount to a violation of PF ?
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Held: Yes.
Reasoning:
 Policy reasons for denying cross-examination: concern for victim
 If child had been called as witness it would have been impossible for hearing officer to make finding against appellant
 Officer did not give any reason for relying on hearsay evidence or why he rejected denials of appellant
 Where appellant denied right to cross-examination of the victim, admission of hearsay evidence amounted to denial of PF –
hearing fell below minimum standard of fairness, even though appellant not convicted it’s a grievous stigma to have on one’s
name for 25 years.
Ratio: where credibility is central to case at hand, claimants should be granted ability to cross-examine
Post-Hearing Fairness: The Duty to Give Reasons

An evolving area of the law
o Baker was the first time that the court held that there is a common law duty to give reasons
o The implications of the decision are still being worked out on a case-by-case basis
o Unclear: what is the scope of the duty? How demanding is it?
Statutory Duty to Give Reasons
 Per s. 7 of Administrative Procedures and Jurisdiction Act: when an authority exercises a statutory power so as to adversely affect
the rights of a party, the authority must give written reasons setting out: (1) the findings of fact on which the decision was based;
and (2) the reasons for the decision
o Only applies to provincial bodies covered by the Act
Common Law Duty to Give Reasons
 Traditional position at common law was that as a general rule, the duty of fairness does not require reasons to be provided for
admin decisions
o Concern for increased cost and delay and may induce lack of candor
 Established in Baker: administrative decision makers have a positive duty to give reasons, to disclose the basis for a decision
o Prior to Baker, there was a perverse incentive – the less reasons a tribunal gave, the more likely it was that the decision
would pass muster
o In Baker, the file notes satisfied the duty
 Support for the duty to give reasons:
o Fosters better decision making by ensuring that reasoning is well articulated and considered carefully;
 Instrumental justification: duty to give reasons gets better outcomes – giving public reasons means that the
decision itself will be more thought out and better
o The process of writing reasons may itself be a guarantee of a better decision;
 Helps ensure rule of law
o Reasons allow the parties to verify that relevant issues have been addressed and enable them to exercise their rights to
judicial review or appeal;
 Allows parties to challenge decision and give appellate body something to assess
o Parties are more likely to feel they were treated fairly if reasons are given.
 Countervailing policy considerations:
o Too much burden on administrative officials
 Concerns over requiring reasons can be accommodated by ensuring that any reasons requirement under duty of fairness leaves
sufficient flexibility to decision-makers by accepting various form of reasons.
When will there be a duty to give reasons?
BUT
Baker does not establish a universal duty to give reasons:
“…it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written
explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this
where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances,
some form of reasons should be required.”
Where the decision (Baker):
1. has important significance
2. where there is a statutory right of appeal
3. in other circumstances
 Focus on the impact on the individual, the need to make statutory rights of appeal (and also likely judicial review) meaningful
50


Controversial – not entirely clear
o To establish that there is a duty, need to tap into the reasons to support the duty
If there is a duty to give reasons, can bring a court application to compel the decision maker to give reasons
Post-Baker Questions
 What circumstances or contextual factors give rise to a common law duty to give reasons?
o Important significance to person?
o Statutory right to appeal?
o Other circumstances?
 Assuming that there is a duty to give reasons, how detailed must the decision be to satisfy the requirements of procedural
fairness?
o See below
 Practically speaking, how does one assess whether an administrative decision is “reasonable”?
o Are those reasons sufficient?
If there is a duty to give reasons, how detailed must they be? Approach to assessing the “reasonableness” of the reasons.
 Still a developing area of law
 Post-Baker, tendency has been to require reasons – this means adequate reasons must be provided
 Standard of adequacy must reflect the purpose served by duty to give reasons
o Ask whether in light of issues in dispute and the argument/evidence advanced, is the tribunal’s reasons sufficient to
enable appellate court to effectively scrutinize decision
o Balanced against imposing unjustifiable burdens on tribunal (cost, delay)
 Purpose of providing reasons is twofold:
o Allow individual to understand why decision was made
o Allow reviewing court to assess validity of decision
How detailed must the reasons be to satisfy the requirements of PF





When decision involves exercise of discretion – reasons must show that decision-maker recognized it had a power to choose and
the factors it considered in exercising that choice
When decision depends on existence of certain facts – reasons must include findings of fact made by the tribunal and indicate the
evidence upon which theses are based (don’t need to refer to every piece of evidence)
When decision is based on assessment of credibility of witnesses – often unrealistic to expect tribunal to elaborate – unless it
favours hearsay evidence
Form is not important, just need to be able to understand why the decision was made, decision must be intelligible (see Baker)
Reasons need to demonstrate that the decision maker has heard the party affected, and should define relevant concepts that are
technical legal terms being interpreted. (VIA Rail Canada v National Transportation Agency)
Approach:
1.
2.
Read the reasons. Can the justification of the reasons be understood? Need to see the administrative decision maker’s point of
view.
Ask – was the decision reasonable? Compare the decision with the legal considerations relevant to this type of decision. Is it
logical, rational?
a. Consider:
i. Objectives of the statutory scheme
ii. Relevance of international law
iii. Soft law (e.g. Ministerial guidelines)
iv. Any evidence of bias?
b. Does the logic and rationale used by decision-maker show sufficient concern for the types of factors that should bear on
this decision.
c. Be sensitive to not overstepping a court’s role – court cannot second guess reasons, can only intervene if the decision is
unreasonable – illogical, irrational, unreasonable in the circumstances
Reasonableness of reasons will be resolved on a case-by-case basis.
 Where the impact of the decision on the individual is high, the expectations of reasons will be higher
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Via Rail Canada v National Transportation Agency (2001 FCA)
Facts: Decision under review was one of the National Transportation Agency who reviewed VIA Rail’s policies and practices re: disabled
passengers. A group of disabled athletes travelled on VIA Rail, the trip didn’t go well because VIA didn’t have the proper means of
accommodating them. The players requested that the Agency review VIA’s practices. The National Transportation Agency’s decision
targets part of the VIA policy manual that states that a disabled person can bring an attendant for free, but the attendant must be capable
of assisting the passenger to get on and off the train. Agency requires VIA to strike this passage from its policy manual. Basis for this
conclusion is: “presence of attendant is no excuse not to provide assistance to a disabled person during boarding and deboarding.
Assistance for this is carrier’s responsibility, not imposed on the attendant. VIA Rail responsibility is to board and deboard passengers.
Under normal conditions, VIA Rail should have enough warning to do so.” Seems to imply that it placed an undue burden on disabled
persons – a bit unclear why it came to this decision. Needs more why
Issues: Were the reasons given sufficient?
Held: No.
Reasoning:
 What constitutes adequate reasons must be determined in light of the particular circumstances of each case
 General Rule: adequate reasons are those that serve the functions for which the duty to provide them was imposed.
o Not sufficient to recite the submissions and evidence of parties and state conclusion
o Must set out findings of fact and the principal evidence upon which those findings were based.
 Here must measure adequacy with particular reference
o To the extent to which they provide VIA with sufficient guidance to formulate their tariff without running afoul of the
agency and
o To the extent that they give VIA’s right of appeal by giving sufficient insight into Agency’s reasoning process and factors
it considered.
o Thus to find reasons adequate here, must find they set out basis on which Agency found existence of tariff constituted
an obstacle, reflect reasoning process by which it was determined to be undue and include consideration of main
factors relevant to this determination.
 Finding 1 – failed to provide adequate reasons for why tariff was an obstacle (can imply that it is because they are shifting burden
onto disabled person to bring attendant instead of having necessary personal and equipment but not clear).
 Finding 2 – insufficient indication of reasoning process it followed in interpreting undue
o Needed to balance relevant factors
 For disabled passengers: difficulty of providing an escort who is capable and willing to load wheelchairs on/off
trains, importance of dignity of disabled person that they are able to travel with as much independence as
possible and right to accessible travel
 For VIA: availability of personnel and equipment to assist, time required, effect on scheduling trains, impact of
delay’s on all passengers and expense.
 Reasons need to demonstrate that the decision maker has heard the party affected, and should define relevant concepts that are
technical legal terms being interpreted.
 Sexton JA wants reasons that are almost judicial in nature, and may be too high a burden on the administrative decision-maker.
 VIA Rail argument: you gave reasons but they don’t enable us to fully understand conclusion for decision, so sent back and a
more detailed consideration must be given to explain why VIA Rail policy is an undue obstacle on disabled people (in Baker,
argument was: you must give reasons when decision is important to person, when it becomes more invasive on one person, duty
to give reasons increases. No hardline on when duty exists, adjudicated on case-by-case basis, so when bringing application for
judicial review, explain to court why duty to give reasons is important (this decision has significant impact on my client, so
significant that we think it’s not appropriate for admin decision maker to simply say application denied. They should say why
they’ve made their decision and how decision supported by the evidence). Duty to give reasons with respect to content: once
establish there is duty to give reason, how detailed? See Via Rail and Newfoundland Nurses. Reasons in Baker were the notes that
the immigration officer wrote. Reasons showed he didn’t consider the law and enabling legislation’s purpose of keeping family
together. Got things wrong, but reasons were detailed enough)
Newfoundland and Labrador Nurses’ Union v Newfoundland



Labour arbitration: independent labour arbitrator who adjudicates on a labour agreement. In this case, calculating vacation pay
for senior nurses. Whether or not their service as probationary nurses, junior nurse who hasn’t received tenure so to speak in a
hospital, whether those years of service are cumulative when assessing their entitlement to vacation benefits. Idea is if you work
for same employer for 6 years, you are entitled to 4 weeks vacation instead of 3. But if you’re hired on a temporary basis in 2007,
do those hours of service get added to the time that you calculate seniority and you receive full employment
Arbitrator said: no, you don’t add that time. BUT, not much of an explanation, and not to the degree that FCA would like to see in
VIA Rail, as to why time serves as temporary nurse should not be added in this fashion
SCC said reasons were sufficient:
52
o




“Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge
would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion”.
 Just has to be sufficient to allow someone to decide what the basis for the conclusion is
o “Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some
form of reasons” for a decision. It did not say that reasons are always required, and it did not say that the quality of
those reasons is a question of procedural fairness.
o It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under
the category of a breach of procedural fairness and that they are subject to a correctness review.”
SCC seems to say that the duty to give reasons is NOT as demanding as the standard in VIA Rail
o 2 different standards now
 VIA Rail: explain what an obstacle is, elaborate on that definition, explain why a term in a tariff of fares is an
obstacle, consider the term undue in a similar way as well (pretty demanding idea of duty to give reason
 Newfoundland Nurses: SCC says reasons don’t necessarily have to include all arguments, statute provision,
jurisprudence or other details that the reviewing judge (and probably the parties) would have preferred.
Decision maker not required to make explicitly finding on each constituent element however subordinate
leading to its final conclusion
What does this mean for me on the final exam/if I advise a client?
o If I got a decision with reasons (if no reasons you use Baker: reasons are required here, you haven’t given me them) but I
want more discussion of a term or elaboration on the evidence, then I have 2 different lines of authority
 1. VIA Rail line of authority – duty to give reasons is fairly rigorous and demanding, explain essential terms in
judgment and how those terms are being applied to the facts
 2. Newfoundland Nurses – SCC, less demanding standard, don’t necessarily have to make a finding on each
constituent element
If acting on behalf of an applicant for review of decision, probably use VIA Rail. If acting on behalf of party that wants to uphold
admin decision, probably invoke Newfoundland Nurses
If you have difficult fact pattern in an exam (or in life), and you have to explain to judge why reasons weren’t enough, you can say
the facts of this situation are so complicated that more reasons are needed
Baker says duty to give reasons and then depending on how significant the impact on the person is (Baker), argue Via for demanding
reasons, or if impact is minor, Newfoundland Nurses.
Procedural Fairness: the principle of Impartiality
Reasonable Apprehension of Bias
The General Test: Reasonable Apprehension of Bias
 General test applied by Canadian courts to determine whether a decision-maker should be disqualified for breaching the nemo
judex principle: reasonable apprehension of bias
Procedural Fairness: the principle of Impartiality
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Historically speaking, the common law doctrine of natural justice is comprised of two ancient legal principles:
Two basic elements to the common law doctrine of natural justice:
1.
2.
Audi alteram partem: no one should be condemned unheard.
a. Right to notice, right to know the case against you, right to be heard, right to representation, cross-examination, etc.
i. Focus of the course until now
Nemo judex in sua causa propria sua debet esse: no one ought to be a judge in his own cause.
a. Decision makers must be impartial, approach issues with an open mind, should not have an interest in the outcome
i. Example: pharmaceutical case and turns out the judge holds shares in the pharmaceutical company being sued
The principle of impartiality is offended when:
(1) an administrative official has a pecuniary in the outcome or a previous relationship with one of the interested parties;
a. Admin official has a monetary interest in the outcome
i. Owns shares in company being regulated
ii. Kinship
iii. Friendship
iv. Animosity towards someone interested
v. Predetermined mind as to the issue involved
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(2) an administrative official sits on:
a. a hearing after being involved at the investigative stage (decide whether or not to lay a charge),
i. Like having the police officer, prosecutor, and judge be all the same person
ii. Once someone is charged with a criminal offence, it is difficult to get charges dropped, because once police
decide someone did something, they can’t take a step back and assess if the case is actually founded or not,
they are bad at changing their mind
b. a rehearing (after successful judicial review);
i. Initial admin decision is successfully challenged on review, and they send it back, and then board is constituted
of exact same people
ii. Often arises in professional discipline cases – disciplined by Alberta Law Society, review my license, I challenge
on judicial review and court sends it back to exact same Board that heard the case. They already heard the
evidence, decided I was guilty, I’m not sure they would come to a new conclusion and haven’t already made
their mind up, no open mind anymore
c. an appellate tribunal which is reviewing his or her previous decision.
i. Board member is on original tribunal that made decision, which is then appealed, and that member is on the
review board as well
(3) an administrative official makes statements during a hearing that indicate he or she is biased as to the outcome;
a. Official gives impression that tribunal member is hostile/biased
b. Most commonly looks like unreasonably aggressive questioning
(4) an administrative official makes out-of-hearing statements that raise concerns that he or she is biased;
a. Give an interview to media raising impression of bias
(5) administrative officials consult with other colleagues who do not participate in the hearing.
a. Out-of-hearing conversations with other members of staff. Board members who aren’t sitting on hearing.
b. Labour relation board has 20 members but only sits on panels of 3. Legal issue arises in hearing, adjourn it, and discuss it
on board with other 17 members who weren’t in hearing. Is that appropriate?
Reasonable Apprehension of Bias (RAB)
Test for RAB:
“[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded people, applying themselves to the question
and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically—and having thought the matter through—conclude.” Committee for Justice and Liberty
v. National Energy Board, de Grandpre J.
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Objective standard – based on circumstantial evidence, don’t have to prove that person had a biased state of mind, don’t put
them on the stand
How do you build your case for RAB, if it is objective standard?
o Build it not by calling adjudicator to the stand, but you make sure the court is alerted to circumstantial evidence that
raises this concern
 i.e. official owns shares in company being regulated, bring that evidence forward
 If admin official involved in various stages of proceeding, need to explain to court how the proceeding works:
three part process: investigation, board of hearing is struck panel members appointed, and someone who
investigated is also appointed to the hearing tribunal.
 Someone makes hostile statements in hearing, want transcripts (protect the record and that record is being
produced)
 Out-of-hearing statements: go to archives of media and get a copy of those statements from an interview
The test is objective, in the sense that it does not require a party to prove the decision-maker’s actual state of mind.
o Even if he was impartial, if a right-minded person would think that there was a real likelihood of bias then he should not
sit on board and if he does, the decision can’t stand
The application of the test is contextual, in the sense that a reviewing court will require a decision-maker to be more reserved in a
trial-type process as opposed to a policy-making or legislative forum.
As with other aspects of procedural fairness, if there is a valid Charter claim a reviewing court might require a greater degree of
impartiality on the part of the decision-maker.
o Test for reasonable apprehension of bias may be more demanding if there is a s. 7 interest engaged
Criticism: What knowledge is attributed to the reasonable bystander?
o Courts have not been consistent: readily ascertainable and easily verifiable facts or informed or reasonable wellinformed person have all be used
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What is the consequence of finding a reasonable apprehension of bias?
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Once the process is tainted, there has been no right to a fair hearing
Once a reasonable apprehension of bias has been established, the hearing and any order resulting from it is void (Newfoundland
Telephone Co)
Policy underlying unbiased adjudication:
 The public is entitled to have confidence in the impartial resolution of disputes
o This confidence is undermined when the facts create an impression in the public mind that a decision maker is
predisposed to a particular outcome
 “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be
done.” (R v Sussex Justices, ex parte McCarthy)
Statutory Authority
Brosseau v. Alberta (Securities Commission)
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Facts: Statutory authorization for RAB – enabling legislation contemplates that Chairman plays in an important role in initiating
and hearing/adjudicating allegations
Allegations of fraud on Brosseau, lawyer who prepared a prospectus for a company
o Misrepresented facts in corporate prospectus, might induce people to buy shares under false pretenses (possibly fraud)
Alberta Securities Commission did not initiate this themselves. Member of provincial cabinet told Alberta SEC that RCMP is
investigating BROSSEAU for fraud.
o If RCMP concludes he is guilty of fraud, that’s a problem for ASEC. ASEC had collected information, but thought no
evidence of fraud.
o After talking to RCMP and the phone call with cabinet member, they thought there was enough evidence to start a
hearing
Member of board for hearing was also an investigator.
o Does this raise a RAB?
o Does Chair involvement of internal file review disqualify him from sitting on the hearing with the panel that adjudicates
if Brosseau is guilty of offence under statute?
Basically: Chairman had instructed commission staff to review their files and information about the company in the first place was
involved in compiling of reports, recommending adjudication and designated to sit on the panel at the hearing.
Issues: Does the chairman’s participation at both the investigatory and adjudicatory level give rise to RAB?
Held: No – as long as the statute authorizes overlapping functions between investigation and adjudication it is a permissible
practice.
Would a reasonable person applying himself to the question and obtaining the required information, and viewing the matter
realistically and practically, conclude that the there is RAB?
o Maybe not, board member didn’t allege anything, only opened an investigation.
 Didn’t say charge him, just go look into this. Also, an admin board, not a court
o On an exam, think of surrounding facts for both sides. So what about Brosseau’s counsel? Using Baker framework:
 This isn’t like a court, sure, but it is a formal adjudication, needs impartiality to some degree. Chair shouldn’t be
able to look at disclosure before introduced into evidence. May be admin, but Chair will be acting judicially and
impacting one person (Factor 1). And, Baker factor 3: if Brossaue convicted, it’ll have significant impact on his
ability to practice corporate law – made a life of sitting on Boards of Directors and advising small start up
companies in AB, if found guilty, this career will likely end.
 Court sides with ABSEC
Held: No RAB, any inference of bias is rebutted by statute
o Can see why there is a concern of impartiality, but rejects Brosseau’s argument
o When you look at enabling legislation and look at relevant provisions of Alberta Securities Act, and see how legislature
intended to have this Act work, it’s supposed to give ABSEC Chair power to investigate and sit on adjudicating tribunal
power
o Act specifically contemplates this blurring of function b/w investigative stage and adjudicating stage
 S 28 of act: authority for Commission to carry out investigation which includes wide range of powers
 Concludes that commission must have implied authority to conduct informal review (which is what happens
when politician called and said take another look at this)
 Pre-Baker – today, would have some discussion of Baker factors in order to arrive at a conclusion on whether a
reasonable person, informed of surrounding circumstances would conclude that this blurring of functions is
inappropriate
 Baker 1: nature of decision making process – more of admin decision or should it tend to be more like a trial
 More like a trial, affects one individual
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Baker 2: Nature of statutory scheme – justice goes through detailed analysis of the provisions in securities act
and concludes Chair of commission has fairly broad power to initiate informal file reviews, so entitled to engage
in investigation to some degree
Baker 3: nature of interest affected – concerns about professional reputation and ability to earn a living. A
response: at end of day talking about economic interest, and countervailing public interest that wants securities
to be regulated
Key question: what levels of adherence to particular causes of points of view should be seen as disqualifying a decision maker?
 Answer: where it raises a reasonable apprehension of bias
o Tolerance for attitudes, prior involvements, and relationships will vary with the statutory context
2747-3174 Quebec Inc. v. Quebec
Investigation and adjudication like Brosseau but court reaches OPPOSITE conclusion
Facts: This numbered company had their liquor permit taken away by the prov liquor commission. This is basically death for the company.
They brought an application saying that the structure of the commission’s investigative and decision-making processes raised a RAB. And
conflicts with Quebec Charter of Human Rights. Way enabling legislation is set up creates institutional concerns about impartiality.
Lawyers looked to Brosseau which said look to see if enabling legislation contemplated this kind of blurring of function. BUT, not just
common law argument here, lawyers here think that the Quebec Charter justifies court in striking down this legislation when it sets up a
decision making process that they don’t think is impartial
Issue: Does the fact that the commission use the same lawyers to argue the case and to advise the reasons for the decision create a RAB
 Lawyers are advising the admin agency, and also helping the admin body prepare reasons (which is good, help make sure all the
details are proper)
 BUT, should the same lawyers who advise the prosecutorial wing of body who lays charges also advise the adjudicative body on
quality of its reasons? Is there bias there?
o This is like having the Crown prosecutor/police officer to vet the reasons of the judge in provincial court. This is being
fairly involved in adjudication
Decision: Yes
Reasoning:
- The provincial decision making process used by the liquor commission works by conducting an investigation and deciding
whether to proceed to a hearing. The commission appoints a panel but also hires their own lawyers that they use at the hearing.
Lawyers at the hearing make submissions on the liquor permit and why it should be revoked. When the hearing is over, the
lawyers go back to the general office and sometimes help the adjudicative committee write their reasons, and give legal advice
about their decision.
- Test: would a reasonable person informed of the facts surrounding this process conclude that the decision maker is not
impartial?
- The court concludes there is a serious problem here, but mirror the concerns in Brousseau. However, instead of merely being
involved in the investigation and adjudication, the lawyers are making submissions, and are advocating for a particular side in the
hearing itself.
o Chair in Brosseau initiated the investigation but wasn’t actually involved in it in any substantive manor. Here, the lawyers
are involved in the charges and preparing submissions and arguments, and then also substantively involved in the
decision
- We can distinguish this from Brousseau because the concern about RAB is more compelling: here we are at the adjudicative stage
proper, and the lawyers are taking a part in the hearing and advising the panel. The statute itself doesn’t seem to allow them to
blur these functions.
Attitudinal Bias: Prejudgment of a Case
Principle: where prior statements demonstrate that the subject matter of the hearing has already been decided before the hearing takes
place, there will be a reasonable apprehension of bias (E.A. Manning Ltd v Ontario Securities Commission)
Institutional bias: where an entire institution is tainted by reasonable apprehension of bias. Will be rare (E.A. Manning Ltd v Ontario
Securities Commission – not found on the facts).
Attitudinal bias in a university committee: generally speaking, courts should leave domestic disputes to be settled by the methods agreed
on by the parties.
 University committees are not tribunals and must by necessity act on pre-considered opinions
 Per Paine v University of Toronto
Paine v University of Toronto (ONCA, 1980)
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Attitudinal bias – member of committee already made up their mind before the hearing takes place. Actually set down in writing,
permanent record, that they made up their mind. In previous two cases, inferring that from situation (blurring of roles). In this case, RAB is
based on a document which said Paine doesn’t have what it takes to get tenure here.
Facts: Paine brought an application for judicial review following the denial of his application for tenure (permanent employee, only way U
can get rid of tenured prof is with cause) at U of T. Governing Council rules requested an assessment from all tenured members of the
Department – one was negative. This person was then invited to sit on the tenure committee. Committee declined application 5-0 with 2
abstentions. Paine alleged reasonable apprehension of bias because one of the members prejudged the issue (already concluded Paine
should not get tenure). Would a reasonable person looking at this decide that the committee was not acting impartially? AKA there was a
RAB
 The Committee is not like a court, not a judicial type hearing. This is all done on paper. Candidate submits application; committee
members look at those materials along with statements made by colleges. Problem: one of the members declined to be on
committee because he was busy, so U of T appoints the college who gave negative review.
Issues: Was there reasonable apprehension of bias? Did the fact that one of the members of the committee had previously concluded
that Paine was “not acceptable for tenure” constitute attitudinal bias and a violation of procedural fairness?
Held: (OnDivCt) yes, ONCA No.
Trial reasons:

Someone who submitted a negative assessment was appointed to the tenure committee.
o He already had made up his mind – compare this to ONCA decision, which overturned this
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Presence of this person constituted unfairness and certainly made likelihood of unfairness apparent to any who knew or became
aware of member’s pervious statement
 Even though there was subsequent appeals, there was really no de novo hearing on fresh material
 Bias or apprehended bias has long been recognized by statute and CL as valid ground on which to challenge juryman
Reasoning ONCA: no unfairness
 University decision that requires peer-review assumes that people involved in it will already have their own opinion. Because of
their association with the candidate, all members of the committee will have formed general opinions about the candidates’
suitability for tenure.
o Makes little difference whether opinions are expressed before or at meeting
o Considering these circumstances and nature of decision being made, this type of involvement in the committee doesn’t
raise a RAB
 No suggestion that this person with a preconceived opinion dominated the proceedings and persuaded the others to accede to
his opinion.
 Question is whether P was treated with such manifest unfairness as to call for intervention by the court – maybe a judge would
think it wrong or unfair for chairman to have selected that member but members of university to which P belonged thought
otherwise
o Would be limiting the degree to which university could fulfill mandate
Ratio: Generally speaking, courts should leave domestic disputes to be settled by the methods agreed on by the parties – university
committees are not tribunals and must by necessity act on pre-considered opinions.
Question: Which baker factors are raised/implicated?
 Nature of the decision being made and process followed in making it
o CA seems to be of view that this decision has policy aspect as well – that it not just about P, must consider Universities
interests
o Admin decision – not adversarial in nature. This isn’t the same type of formal adjudicative hearing you’d have in
immigration context or securities context. Decision in which U members are supposed to give candid advice and
deliberate in a fair manner about whether or not to grant someone tenure. Not done in on basis of oral hearing with
cross examination. Done on paper. Some objective assessment of one’s research, but not judicial type hearing. But does
affect one person only (not relevant here though)
 Nature of statutory scheme and terms of the statute pursuant to which body operates
o Not specifically authorized by statute but universities have traditions, cultures and practices that courts should respect –
if these traditions allow for a member who has previously expressed an opinion to sit, shouldn’t interfere
o Right of Appeal or look at enabling provisions that buttress Baker factor 1: this legislative scheme contemplates that
many faculty colleges, your peers who already have opinions on you, will be sitting on this committee.
 Importance of the decision to the individual or individuals affected
o Perhaps not a make or break decision for P – can still continue working even if he doesn’t get tenure
o Not insignificant, employment matter, BUT, see point above
 Legitimate expectation of the person challenging the decision
o Doesn’t arise on facts – some university practices are codified but others are left to convention, unspoken
rules/processes.
 The choices of procedure made by the agency itself
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o
Reason for following this process: U may have good reasons for appointing someone who may already have formed an
opinion regarding your fitness for tenure.
Defenses to Reasonable Apprehension of Bias
Statutory Authority
 Subject to the possibility of constitutional challenge to statutorily authorized bias
 Principle: where an overlap of functions is authorized by statute, and the statute contemplates the involvement of a decision
maker at several stages of the proceedings, being involved at multiple stages (e.g. as investigator and decision maker) will not
create a reasonable apprehension of bias (assuming that the constitutionality of the statute is not at issue)
o Per Brosseau v Alberta (Securities Commission)
Variation in Standards
 The standard of what constitutes disqualifying bias may vary dramatically with context
 Content of the rules of natural justice are based on a number of factors, including: the nature of the statute, the nature of the
function, and the type of decision (Old St Boniface)
 There is a spectrum:
o Boards that are primarily adjudicative will be expected to comply with the court-like standard – conduct should be such
that there is no reasonable apprehension of bias;
o Boards composed of popularly elected members will have a more lenient standard – will need to establish prejudgment
to the extent that any representations to the contrary would be futile (the “amenable to persuasion” test)
 Old St Boniface Residents Association
 Nature of the Statutory Body: If the tribunal is a specialized body and by its nature undertakes several different functions, then it
is likely that the same decision makers will have repeated dealings with a given party, and this will not create a reasonable
apprehension of bias (Brosseau v Alberta (Securities Commission))
o Reflects a concern about efficiency – don’t want to pay two different institutions just to satisfy a concern about
reasonable apprehension of bias – a securities agency should be involved in policy development and have broad-ranging
powers to investigate and prosecute matters in the public interest
Context and the RAB test:
Old St Boniface Residents Assn Inc v Winnipeg (City) (SCC, 1990)
Facts: Developer wanted to buy up land in this area and build new townhouses with new amenities. This would change the character of
the neighbourhood, which was more historical. Winnipeg municipal councilor (Savoy) was involved from the beginning to get municipal
approval for a re-zoning for development of Old St Boniface. Savoy showed up at a sub-committee meeting of a committee he wasn’t on
to speak in favour of the development (City was asked if developer could buy land, delegated decision to finance sub-committee, Savoy
shows up here to speak in favour). Sub-committee approves it and city council will take a final vote on the subject. The people who lived
there didn’t want new houses for new families and kids to move here. The association learned of S’s support, and asked him to withdraw
from further participation – he declined. The council gave its approval for the rezoning and asked that a rezoning bylaw be prepared.
Before the rezoning bylaw passed, the association moved for orders quashing the decision of the council and prohibiting S from voting on
the matter, arguing attitudinal bias because of S’s previous involvement. Raise RAB: by virtue of S’s previous involvement, he has made
clear what his views are and advocated for the project at earlier stages in the process, he shouldn’t be allowed to vote when city council
ultimately decides whether to re-zone the property and allow development to proceed. Ultimately, saying city council is not impartial. The
association argues that the rules that require a tribunal to maintain an open mind apply with full vigor to members of a municipal council.
Issues: Is there a reasonable apprehension of bias? How does the reasonable apprehension of bias test apply to local government bodies?
Held: No reasonable apprehension of bias.
Reasoning:
 Court balancing fact that city councillors are allowed to make decisions as city councillors and the fact that even city council
decisions have to be fair, although the bar is lower
 Fairness is contextual
 Application of rules of natural justice and PF are contextual, although the rules themselves always exist
 Must examine all the factors that are related to how a city council operates
o Democratically elected body
o Members on council run for office, often on explicit platforms (lower property taxes, re-open city airport, invade Calgary,
etc.)
o Statutory framework: some of these expectations about fairness are indicated in enabling legislation
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There will be a hearing regarding re-zoning applications, but that’s about it. Not a highly structured and
formalized hearing process. You can come to city council, speak your position about developing project, and
that’s about it. No cross-examination, no pre-hearing disclosure, no discovery, no reasons
 Rules of natural justice and PF are variable; the content of the rules of natural justice is based on a number of factors, including
the nature of the statute, the nature of the particular function, and the type of decision.
 Here, the statute provides for a hearing before a committee of members of Council – nothing states they are to act in a capacity
other than as municipal councillors
o In this process, a councillor can take a stand for or against an issue.
o Legislature could not have intended that rule apply to councillors in the same force as to other tribunals whose character
and function more closely resemble a court
 Test consistent with functions of municipal councillors and enables them to carry out their political and legislative duties is one
that requires objectors or supporters to be heard by members of council who are capable of being persuaded
o Look at decision basis of Baker analysis – in Intuit Tarpisat remember court says as process approaches legislative side
of spectrum, court should be wary of imposing procedural safeguards
o here this deals with municipal legislative process, we expect officials to make public statements about how they feel
about the issues of the day – if this becomes a nullifying factor would change face of politics
 Party alleging disqualifying bias must establish that there is a prejudgment of the matter to the extent that any representation
at variance with the view adopted would be futile
 As long as it is apparent on facts that councillor was amendable to persuasion will not be taken to be a violation of PF –
becomes burden of proof issue
o Here: councillor appearing before finance committee does not lead to conclusion that his mind could not be changed;
suggesting that this places him in a role of advocate for developer would only have substance if there was evidence that
his support was motivated by some interest in developer rather than development
Ratio: amendable persuasion test
Baker Factor:
1: Legislative decision, not a court
2: Give notice and have a hearing – nature of statutory scheme
3: A group of concerned residents, no one in particular is bearing the burden of the outcome, they all share interest on a policy decision
(Intuit). To improve their interest, must say the value of the home owners in Old St. Boniface will fall to show their economic interest is
impacted.
Save Richmond Farm Society v Richmond (Township) (SCC, 1990)-companion case to Old St. Bonafice
Facts: Agricultural preserve within Richmond town limits. Question of whether development should be approved on this parcel of land.
Alderman campaigned on being in favour of rezoning certain agricultural lands (would attract new residents, urban renewal, more tax
base, etc.). Voted in favour of bylaws which would have rezoned the lands. After first reading, the Alderman gave a press interview in
which he said that he would not change his mind at the public hearing. Subsequently appeared on TV and advocated for rezoning stating it
would take something significant to change his mind. Bylaw passed and the Society petitioned for judicial review and for an order
preventing the Alderman from participating, arguing a reasonable apprehension of bias.
Issues: Was there a reasonable apprehension of bias?
Held: No.
Reasoning (Sopinka): dismissed appeal on basis of Old St. Boniface “amendable to persuasion test”
 Must show that councillor had closed mind when he came into public hearing – he said his mind could be changed if there was a
significant reason
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No reasonable apprehension of bias, on the basis of the “amenable to persuasion” test in Old St Boniface.
Concurring reasoning (La Forest):
 Amendable persuasion test bound to lead to a lot of posturing
o Politicians simply saying they are open to changing their mind
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By saying threshold is amenable to persuasion, all you encourage is rhetoric. Councillors will now always say I’m
opposed to this process but I have an open mind and I’ll never be biased. This isn’t very genuine way of
communicating with electorate.
 La Forest says let’s get rid of this and just say in terms of RAB, these type of decisions get a free pass because if
the electorate doesn’t like the decisions, vote the councillor out
A closed mind (provided it is not a corrupt mind) should not disentitle an alderman from participating in the hearing process.
o It must be assumed that the legislature was aware of the fact that alderman called on by statute to make a decision on
zoning bylaws may have to run for office on their support/opposition of these decisions.
o This is a policy-driven process, not a fact-finding hearing. Because the decision making process is at the legislative end
of the spectrum, the test for establishing bias should be a very high one.
Thus standard of fairness mandated by leg entails little more than obligation of ensuring that due notice is given to those who
stand to be affected and affording them a reasonable opportunity to express their views
Baker Factor:
1. This is legislative decision, not a court
2. Give notice, having hearing to let people share view
3. Nature of interest being affected – a group of people, not one person. No economic interest impacted
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) (SCC, 1992)
Different context – not dealing with legislative process, moving towards judicial end of spectrum
Facts: Board is responsible for the regulation of the Newfoundland Telephone Co, set the rates. Newfoundland Telephone Co has a
monopoly on telephone services, so government wants to have oversight role to ensure no gouging of people, has Board of
Commissioners of Public Utilities. Government of Newfoundland appoints Wells to this board. Wells made a name for himself as a
consumer advocate (speaks out for consumers against corporations) in municipal politics. Wells is a Commissioner, who publically stated
that he intended to champion consumer rights on the Board. Wells spoke to the media prior to the hearing indicating that the pay of the
company executives was ludicrous. Wells participated in the hearing, and continued to make negative comments to the media, all made
before the Board released its decision. Company alleged reasonable apprehension of bias.
Issues: To what extent is an administrative board member permitted to comment on matters before the board publically before it raises a
RAB?
Held: only at the pre-hearing stage. More discretion is required at the hearing stage because of RAB.
Reasoning:
 Reiterates spectrum reasoning
o Boards that are primarily adjudicative will have a higher standard regarding RAB
o Boards composed of popularly elected members will have a more lenient standard regarding RAB
 The role and function of the board must be considered – administrative boards that deal with policy are closer on the spectrum
to municipal councils.
 The composition of boards should be diverse, and can include consumer rights advocates.
 Investigative Stage
o A member of a board which performs a policy function should not be susceptible to a charge of bias simply because he
expressed strong opinions prior to a hearing.
o However should a commissioner state that no matter what evidence might be disclosed as a result of the investigation,
his or her position would not change this indicates a closed mind.
 Hearing Stage (date set for a hearing)
o The parties entitled to expect that the conduct of the commissioners would be such that it would not raise a RAB
o Well’s statements give a clear indication that not only was there RAB but also that he was closed minded
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Ratio at the investigative stage the closed minded test is applicable but once matters proceed to hearing, a higher standard must be
applied – PF requires that board members conduct themselves so that there could be no RAB (though application of the test is still flexible
considering the policy matters the board deals with)
Pelletier v Canada (AG) (FC, 2008)
Facts: PM Chretien placed Pelletier in charge of a national unity strategy ($250 million ad campaign) involving federal sponsorship in order
to counteract the QC sovereignty movement. Auditor General published a report detailing irregularities in the program (money was given
to liberal party friendly people, work wasn’t done, this went straight to the PM Office, so was important). Commission of Inquiry was
struck (the “Gomery inquiry”). Justice Gomery would sit on this Commission and hear evidence. Gomery decided he had a public interest
mandate, so while hearing evidence will act as interlocutory with the general public. Gomery granted several media interviews during the
inquiry, while evidence was being introduced, during adjournments. He said things like “best seat at the best show in town” and “public
spectacle.” But then said that he was coming to the same views as the Auditor General, saying the fund was run in a catastrophic way
(stating that he is coming to the same conclusion as the Auditor General before the hearings are completed). Said no checks and balances,
no one kept track of where money was going and whether Canadian Tax payer was getting good value for money. Chretien and Pelletier
sought judicial review on the basis that there was a reasonable apprehension of bias, seen through his interviews.
Issues: Was there a reasonable apprehension of bias due to granting media requests and statements made?
Held: Yes these types of comments during public hearing are simply not acceptable, have to be more discrete
Reasoning:
 Chretien and Pelletier were entitled to a high degree of procedural fairness given the potential to serious damage their
reputations.
o The standard of impartiality expected of a decision maker is variable depending on the role and function of the decision
maker involved.
 Comments made before all the evidence had been heard – trivialized proceedings
 The assurances that he remained impartial and didn’t prejudge any issues were irrelevant – bias may be conscious or unconscious
thing.
 Determinative test is whether a reasonably well-informed person, viewing the matter realistically and practically would
conclude that there is a RAB
o Informed person viewing comments cumulatively would conclude that commissioner prejudged issues under
investigation and was not impartial towards appellant
o Here, there is more than sufficient evidence; statements made indicate that he prejudged issues, and formed
conclusions about issues he was to investigate and report before having heard all of the evidence. The test for
reasonable apprehension of bias has been met.
 See transition from Boniface (open minded test only) to Pelliteir (if you’re the head of a public inquiry shouldn’t be saying
anything until all evidence is in)
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The “Open Mind” or “Amenable to Persuasion” Test: Municipal Councils
 Applies to municipal councillors
 While prejudgment (taking a stand on an issue prior to a hearing) normally runs afoul of the rule prohibiting bias, some degree of
prejudgment is inherent in the role of a municipal councillor (Old St Boniface)
o Councillors are elected legislators who are expected to take a stand on certain issues, they are not judges
o BUT, councillors still cannot have a conflict of interest, but some prejudgment is appropriate
 Distinguishes between pre-judgment and personal interest
o The legislature could not have intended that the rule applies to councillors with the same force as to other tribunals
whose character and function more closely resemble a court
 The standard: to challenge on the basis of a reasonable apprehension of bias, have to establish that there was a prejudgment of
the matter to such an extent that any representation to the contrary would be futile (the “amenable to persuasion” test)
o Test must enable municipal councillors to carry out their political and legislative duties, but requires that
objectors/supporters be heard by councillors who are capable of being persuaded
o So long as it is apparent on the facts that the councillor was amenable to persuasion, there will not be a violation of
procedural fairness
o Just need a “sliver of hope” that the official’s mind can be changed
 Threshold for judicial review will be high
 Prior support will not indicate a reasonable apprehension of bias, unless there is evidence of (1) conflict of interest; or (2)
councillor was not amenable to persuasion
 Different approach per La Forest’s concurring opinion in Save Richmond Farm Society: a closed mind, so long as it is not corrupt,
should not disentitle an alderman from participating in the hearing process.
o The “amenable to persuasion” test is bound to lead to posturing and lip-service (dishonest public discourse) – it changes
the rhetoric, but not the substance of municipal politics
o Applicants are only entitled to notice and a hearing. The standard of fairness mandated by the legislature entails little
more than an obligation to ensure that due notice is given to those who stand to be affected and of affording them a
reasonable opportunity to express their views
o Rationale: the decision is legislative, policy-driven, , so the test for establishing bias should be a very high one
Applicability of Baker analysis: can use Baker analysis to help explain why it is that courts demand a greater degree of discretion in public
inquiries than they expect from municipal councillors.
 Nature of the decision being made
 Statutory context of the decision
 Impact of the decision on the individuals affected
 The reputation of certain prominent public figures
 Legitimate expectations? Past practices of certain boards of inquiry? Acceptable for people who sit on public inquiries to make
public statements?
Review
 If you prove a pecuniary interest on the facts it is an automatic disqualifying interet
 Two cases concerning municipal bylaws: SCC reluctant to find RAB in municipal politics as long as:
o Councillor states that they have an open mind OR
o It is apparent on the facts that they are still amendable to persuasion
 But when you switch from this context discretion demand is higher (as in Newfoundland Telephone)
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o

Public statements made by board member in that case suggested that he didn’t have the degree of impartiality that we
would expect of a board member in that context
o Pellitier: the commissioner’s comments to media fell well short of establishing impartiality
Drawing distinction on the facts and context of cases – can also use Baker factors to explain why courts require more impartiality
in context of utility board hearings and federal commissions, compared to municipal politics
o Impact of decision: Pellitier involving reputations of high ranking politicians
o Legitimate expectations: past practices of past board inquiries
Procedural Fairness: Institutional Consultations
Institutional Consultations
 The term “institutional consultations” refers to a situation where an administrative decision-maker who is seized with a case
consults with his or her peers in an administrative agency to discuss the policy implications of the decision.
o Can an admin official seized with a case (heard evidence) walk down the hall and talk to someone who wasn’t at the
hearing but is a peer of that admin official?
 Fairness problem #1: institutional consultation allows people who have not heard the evidence or the parties’ submissions can
nevertheless influence the outcome. (audi alteram partem problem)
o I raised a point that the admin official didn’t bring up with his colleague, so his answer to my official is not based on all
the evidence
 Fairness problem #2: institutional consultations may consider evidence or submissions not raised at the initial hearing (audi
alteram partem problem)
 Fairness problem #3: institutional consultation raises a concern that people who have not heard the parties’ can undermine the
adjudicative independence of the decision-maker who is seized with the case. (nemo judex problem)
o Dominant personality within the agency may participate out of the hearing and influence the official seized with the case
Benefits/Concerns with institutional consultations:



Benefits:
o Allows a tribunal to access collective expertise/experience/insights to evaluate the practical consequences of its
decisions (Consolidated Bathurst)
o Facilitates understanding of policy developments
o Facilitates coherence and consistency in decision making (Consolidated Bathurst)
 Especially a concern where there is no right to appeal (Tremblay)
o Ensures stability for litigants (Tremblay)
Concerns:
o Coercion/compelled to change views, panel members might have opinions or view of evidence swayed if question of
facts are being discussed in these consultations
Court tries to balance benefits with the risk from a PF point of view: not a bright line rule
o Do facts raise sufficient concerns about the fairness of this process such that a court should intervene?
o If raises further concern: how do you go about fact-finding about the deliberative process itself?
Consultation Among Agency Members
 Whether and to what extent, the duty of fairness precludes the members of an agency panel who heard a case from discussing it
with other members of an agency after hearing has ended but before rendering a decision
 Issue goes to the heart of the difference between courts and agencies in function, process and structure
International Woodworkers of America v Consolidated-Bathurst Packaging Ltd (SCC, 1983)
Facts: Union applied to Ontario Labour Relations Board seeking a determination that the employer failed to bargain in good faith and
disclose its decision to close one of its plants. Union had no idea this decision was coming, during negotiation of renewal of collective
agreement this is not brought up. A month or two after renewal, employer shuts down the plant. Union says you should have told us you
are going to shut down the plant. If you had, we would have pushed much harder for enhanced pensions and health care for our workers.
Goes to Ontario Labour Relations Board. They award damages against employer. Following this hearing by a 3-member panel, the panel
discussed the case with other members of the Board at a “full board” meeting as the Chair of the hearing felt it was a good policy issue to
discuss with the full Board, and shared their draft decision. At the meeting chairman distributes facts of the case and framing policy issues
for discussion, shares draft decision. Employer, who had to pay damages, wants judicial review, arguing that if any discussions took place
with other members or if the opinions of other members was considered, then the decision had been improperly made. Employer has no
way of knowing if outside influences influenced the decision when the employer wasn’t there to make their own submissions to full board
Decision of the Board:
 After deliberating and preparing a draft decision, any member of the panel contemplating making a policy decision (what is
bargaining in good faith), may through the chairman request a full board meeting. These full meetings have been organized to
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facilitate maximum understanding and appreciation of policy developments. Purpose of meeting is to evaluate fully practical
consequences of proposed policy changes.
o Basically, full board meeting is because panel recognizes there is a new legal issue here and before deciding on it, want
to make sure decision is the way to go. That way, one approach to the issue is agreed upon (that way, two panels
hearing substantially similar conclusions won’t reach inconsistent results with no precedent to base on)
 to do its job effectively, the Board should be able to consider all the insight it has available to evaluate the practical consequences
of its decisions.
 Full Board meetings have been institutionalized to facilitate understanding of policy developments and to evaluate practical
consequences of proposed policy initiatives, subject to the clear understanding that the panel alone is to make the ultimate
decision.
o Purpose of the meeting is not to decide the case but to enable panel to consult with other members as to their
experience in previous cases or their opinions as to how certain policy decisions might play out in the future
 If no meetings, then informal discussions would occur and better to have them institutionalized
o Full Board meetings are the same as post-hearing consultation of a judge with his law clerks, or informal discussions
between judges.
Issues: Have the rules of procedural fairness been violated by this “institutional consultation” by violating either (a) he who decides must
hear or (b) the right to know the case to meet?
Held: No.
Reasoning (Gonthier):
 Discussions at Full Board meetings are limited to policy issues.
 The rules of natural justice must take into account the institutional constraint on administrative tribunals, and should not
discourage administrative bodies from taking advantage of the accumulated expertise of its members.
 The advantages of full board meetings must be weighed against the disadvantages. Coherence in decision making should be
fostered.
 Ultimate question is whether the disadvantages of this consultation practice are sufficiently important to constitute a breach
of the rules of natural justice.
o Advantages: benefit from the cumulative acquired experience of all board members, use tripartite nature to promote
exchange of opinions, addresses problem of conflicting results which are not inadvertently reached depending on what 3
member panel runs hearing, increased efficiency
o Disadvantages: danger without the parties knowledge of new evidence and ideas being introduced, reduced personal
responsibility on decision-maker
 Adjudicative independence was maintained
o Discussions with colleagues do not constitute, in and of themselves, an infringement of a panel member’s capacity to
decide the issues independently.
o Decision makers are entitled to change their minds – either through reflection or discussions
o Criteria for independence is not absence of influence but freedom to decide according to one’s own conscience
 Concern re: institutional consultation: that it may fetter the judicial independence of the panel members.
o The Full Board meeting is called at the option of the hearing panel, it is carefully designed to foster discussion without
trying to get consensus, no minutes are kept, no votes taken. The decision is left entirely to the hearing panel. The
consultation process does not violate the audi alteram partem rule.

Right of parties to be heard: if there are new questions of policy raised by discussions, should invite parties to make new
submissions on those issues
o Policy issues must be approached in a different manner because while adopted in a factual context they are expression
of principle or standards akin to law, involve consideration of statutes, past decisions and perceived social needs such
that decision of the panel go beyond interest of the parties before them
 Parties must be informed of any new grounds on which they have not made any representation and given reasonable
opportunity to respond – may entail supplementary hearing
o Re-open hearing and get parties’ submissions on those points
 Parties should avoid discussing facts and making finding of facts
Dissent (Sopinka):
 Given the number of board members and makeup of the board the views expressed potentially were very influential
 There is no evidence of what was discussed at the full board meeting to determine if the board changed its mind.
 Dealing with 2 distinct principles of natural justice but they arise from the same concern: a party to an admin proceeding is
entitled to a meaningful hearing
o Party must be given an opportunity to deal with the material that will influence the tribunal in coming to its decision
and to deal with it in the presence of those who make the decision
 Unfair to have board meeting because party isn’t there so have no idea what’s going on and can’t speak their
side
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
Ultimate question is regardless of the fact that the panel made the formal decision was the introduction of policy
considerations in the decision making process by either board members not present at the hearing or members present but
who heard no submission from the parties a violation of this rationale?
o Yes policy is not like law and if a party has a right to attack policy in the same fashion as fact, it follows that to deprive
parties is a denial of a full opportunity to present evidence or cross-examine.
 Cannot determine with certainty if policy developed at the board meeting and not disclosed to the parties was a factor in the
decision but that this might have happened is fatal to the board’s decision.
 Suggested Remedy: parties must be involved in the full board meeting.
o Sopinka would have struck down this decision. Legislature must specifically enable administrators to behave in this way.
If Parliament wants an immigration board to have the ability to engage in institutional consultation, should include a
provision in the enabling legislation that says that
Ratio: Advantages of institutionalized consultation process and safeguards outweigh possible disadvantages such that it does not conflict
with principles of natural justice
 Minimize risk of bias from institutional bias: full meeting should be available at request of panel, not imposed on them. Shouldn’t
vote or poll on what outcome should be, only an opportunity to use each other as sounding board, ultimate decision should be
panel’s decision.
 If new points are raised that have not been raised in the hearing, panel should write back to parties and ask them to come back
and address these issues, give them a heads up on the case against them (the new points) and give them chance to respond.
 Avoid finding of facts, panel should do that, full meeting won’t be able to add much value as they haven’t heard the evidence
 Advice to admin agency on how to construct consultation process: good way to improve quality of decisions and consistency, but
make sure you do these things to ensure you do not compromise the duty of fairness. Tremblay has points on this as well
Tremblay v Quebec (SCC, 1992)
Institutional consultation was unfair, did not adhere to Bathurst principles
Facts: Two member panel seized with decision, makes decision to reimburse Tremblay. But, couldn’t issue that decision on their own,
must send decision to Commission’s legal counsel. Commission’s counsel was away, so president of Commission, a judge, vets the
decision. He disagrees with panel’s decision, says its contrary to Commission policy. Writes back to panel saying they should have a
meeting on this. President of Commission had decided not to reimburse Tremblay (who was on social aid) for dressings and bandages,
relying on interpretation of the definition of “medical equipment” within the Act. The matter was discussed at a full meeting with
president and panel. One panel member changed her mind and sided with President. Because there was disagreement, the matter was
decided by the President as a tie-breaker, who maintained his original viewpoint and sided against Tremblay. Tremblay challenged the
decision, alleging breach of natural justice.
 Differences to Bathhurst:
o President of Commission writes to panel and says we should have a meeting (imposed on panel), unlike Bathrust where
it was requested by panel. Impartiality is being undermined, pressure on them to change their mind
o Vote taken
o Written internal protocol
 President may suggest a meeting if there is a unanimous decision
 But president not even involved with case, and wants to discuss draft decision. Gonthier J says that is unfair,
because it raises concerns of independence of adjudicative panel
o Conclusion already reached by panel (draft)
o How would Tremblay get evidence about what was discussed in institutional consultation? In Tremblay, allowed
Tremblay’s lawyer to subpoena members of Commission, as admin tribunals cannot rely on deliberative secrecy. Ellis
Don later says this is NOT allowed, cannot subpoena admin decision makers
 So if want to subpoena agency employee, use Tremblay for that point of law (Ellis Don says you can’t,
however, but still worth arguing with Tremblay)
Issues: Did the decision breach the rules of procedural fairness?
Held: Yes.
Reasoning:
 The objective of consistency responds to a litigant’s need for stability.
 As the Commission’s decisions are not subject to appeal, the Commission itself must prevent inconsistent decision-making. But,
the desire to ensure consistency should not impede the ability of a tribunal to decide as they see fit, and should not create an
appearance of bias.

Here, the meetings were essentially compulsory and accompanied by systemic pressure, a vote is taken, attendance is taken,
minutes are kept – distinguishes this situation from Consolidated-Bathurst.
 The rules for holding full meetings here can create a reasonable apprehension of bias. Compulsory consultation creates an
appearance of lack of independence, if not actual lack of independence.
 The protective devices from Consolidated-Bathurst are essentially to maintain procedural fairness.
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
Institutional consultation has many benefits, but it must be conducted in such a way that decision makers are free to make their
own decisions.
Ratio: arrangements made for discussions within an agency with members who have not heard a case must not be so coercive as to raise
a RAB that members’ ability to decide cases free from improper constraints has been undermined
Ellis Don Ltd v Ontario (Labour Relations Board) (SCC, 2001)
Facts: Parties had a dispute – key question was whether the union had abandoned its collective bargaining rights. A first draft of the
panel’s decision would have found that there was abandonment. After a full board meeting discussed the draft, a majority of the panel
found no abandonment. Panel changes their decision based on full meeting. Company applied for judicial review, alleging that the change
was of a factual nature as opposed to a legal/policy change, and claimed a breach of natural justice. Prior to hearing of application for
judicial review company obtained order compelling chair, vice-chair and registrar of the board to give evidence with respect to procedures
implemented by board in arriving at the final decision. This order was rejected by Ontario Trial Division based on finding of statutory
testimonial immunity largely on basis of Tremblay – still some secrecy that needs to be maintained (can’t do this for a trial decision, so
can’t do that here).
Issues: Did the full board meeting and the change of position from draft to final decision violate duty of PF?
Held: No
Reasoning:
 There was an evidentiary problem here: after its interlocutory motion to examine certain board member was dismissed, all
appellant has is the draft decision dismissing the grievance had been circulated at the full board meeting and it differed from
ultimate decision.
o There was no direct evidence of improper tampering with the decision of the panel, so it is little more than speculation
to say that there had been a reassessment of facts.
 Case illustrates tension between the fairness of a process and the principle of deliberative secrecy (Tremblay).
o Deliberative secrecy favours consistency by protecting a consultative process, but it causes difficulties for parties to
prove inappropriate tampering.
o But even if admin official aren’t protected to the same degree as decision-makers in civil or criminal, in Tremblay it was
recognized that deliberative secrecy plays an important role in safeguarding independence of admin adjudicators
 Without this protection, though, there could be a chilling effect on institutional consultations, which would
deprive administrative tribunals of a critically important means of achieving consistency.
 In the absence of further evidence, this court cannot reverse the presumption of regularity of the administrative process simply
because of a change in the reasons for the decision, especially when the change is limited on its face to questions of law and
policy.
Dissent (Binnie):
 Factual evidence was reweighed or reassessed at full board meeting: runs counter to Bathhurst and must be dealt with properly
if integrity in Board’s decision is to be maintained
 the Board cannot have it both ways – it cannot deny a party access to all relevant information, then rely on the absence of this
information as a conclusive answer to any complaint about procedural fairness.
 Here, the record discloses a change of position on an issue of fact, and thus a breach of procedural fairness.
General principles:





Institutional consultation is permissible, so long as: (Consolidated Bathurst)
o (1) Discussions are limited to policy issues, and factual issues are not discussed
o (2) The parties are given a reasonable opportunity to respond to any new ground that arises in the meeting
Discussions with colleagues does not, in and of itself, lead to an infringement of independent decision making
But, the desire for consistency should not impede the ability of a tribunal to decide as they see fit, and should not create an
appearance of bias (Tremblay)
Factors to consider:
o Whether the consultation was at the option of the decision maker, or mandatory
 Compulsory consultation creates an appearance of lack of independence, if not actual lack of independence
(Tremblay)
o Was it designed to get consensus? Votes taken, minutes kept, etc.
o Was the final decision left entirely to the decision maker(s)?
Rationale:
o Policy issues should be approached differently because the have an impact that goes beyond the resolution of the
dispute between the parties (Consolidated Bathurst)
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Lessons to Administrative Agencies on Ensuring Institutional Consultations are Procedurally Fair:




Emphasize that the panel itself always must retain the final decision, and it is not required to adopt any positions advanced in the
board meeting
Ensure that the board meeting is called at the option of the panel, and not the other way around
Ensure issues are set out – only general policy implications of a decision should be discussed
If a new policy is raised, need to call back the parties and invite submissions
Substantive Review
Substantive review: review of an administrative decision on the basis of the actual outcome or decision that was made. Is the decision
justifiable?
 Can be distinguished from a review of the administrative process
 There can be some overlap between substantive review and procedural fairness
o Ex: there is a procedural duty to give reasons that are at least intelligible, but those reasons become the focal point for
substantive review
o Ex: if the process isn’t fair, the substance of the decision may be bad
 Instead of focusing on whether the decision-making process was fair (notice, hearing, disclosure) substantive review focuses on
whether the substance of an admin decision is reasonable
 Superior courts have an inherent power to review administrative action and ensure that it does not exceed its jurisdiction
pursuant to ss. 96-101 of the Constitution
 Purpose of substantive review: to uphold the rule of law. Connected to fundamental constitutional values.
o Having judicial oversight of administrative decisions provides a check and balance, and ensures that there is an
independent institution to scrutinize decisions and ensure they are legally defensible
o Ensures a degree of accountability and transparency on the part of administrative decision makers
Reflects an underlying tension:
 Tension between (Dunsmuir):
o The rule of law; and
o The foundational democratic principles, which find expression in the initiatives of government to create broad
administrative bodies
Historical Overview of Substantive Review
(1) Substantive review of an administrative decision is distinguishable from assessing the procedural fairness of the administrative
decision-making process.
(2) Instead of focusing on whether the decision-making process was fair (notice, hearing, disclosure, etc.), substantive review focuses on
whether the substance of an administrative decision is reasonable.
 Review can be correctness or reasonableness
o Correctness: does judge agree with the decision the admin board came to?
o Reasonableness: was the decision the admin board came to reasonable?
o Correctness is a lower standard that reasonableness. Correctness judge can change it if he disagrees with outcome.
Reasonableness just cannot change decision if he disagrees with outcome, only if decision is unreasonable
(3) The line between process and substance can be blurry at times. For example, the duty to give reasons (Baker and Administrative
Procedures and Jurisdiction Act) has both a procedural and substantive aspect.
Pre-Nicholson and pre-CUPE (1979): substantive review governed by CL doctrine of “jurisdictional error” (the “ultra vires” doctrine).
 Judges were entitled to quash an administrative decision whenever the judge disagreed with the administrator’s assessment of a
“jurisdictional” issue or question of law
o If main issue in admin decision was jurisdictional issue, decisions made without legal authority, given the boundaries of
the statute, courts could intervene.
o If not a jurisdictional issue, courts said it’s a political issue and wouldn’t intervene
 Limited to ensuring that statutory authorities operated within their jurisdiction and not in bad faith
 But, there were some problems with this approach
o Problem 1 - judges never explained what constitutes a “jurisdictional” issue.
 Concept was expanded so far that it is unclear if there was such a thing as a non-jurisdictional issue
 Basically, judges would ask themselves “how would I have decided that case”
 Judicial review “too hot”
 If non-jurisidictional question, courts said it’s a matter for political discretion, we don’t get involved
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
o
o
Judicial review “too cold”
o If judges are simply determining the parameters of judicial review in that fashion, they are in
essence saying give whatever reasons you want, or may not even have any reasons
Problem 2 - Doctrine assumes that judges have a monopoly on interpreting the law
 the legislature has already authorized an official to decide these questions, and are telling judges to stay out
 Criticized as elitist, reflecting the court’s suspicion of the legislative regime
 Created friction re: the proper role of judges
Problem 3 –Judicial review in Canada was initially interventionist with respect to “new” forms of administrative law, like
collective bargaining regimes (practice of judicial review in Canada was hostile to “new” forms of administrative law, like
collective bargaining regimes)
With the expanding administrative state and greater government intervention in the private sector, courts became more interventionist
 Courts were far less hospitable to the advent of administrative tribunals and the new social order generally
 Courts were often hostile to the removal of their jurisdiction to administrative bodies
 The presence of any statutory right of appeal from an administrative decision invited severe scrutiny of the substantive merits of
the authority’s decision
1979: CUPE v New Brunswick Liquor (SCC)
Facts: labour dispute between government and government liquor store employers; statute governing labour relations between public
employees and employers, including that during strike employer can’t use replacement employees; public employer was using managers
to fill void left by retail employees; union brought complaint to board saying this was contrary to statute – board agreed. The store applied
for judicial review on the basis that decision was wrong because board misinterpreted statute
 At this point: prospect for substantive review was quite good – proven question of law at stake and jurisdictional issue but SCC
comes up with totally new approach
Brought key changes to the law of judicial review: brought the doctrine of deference. Judicial review should be respectful of
administrative decisions.
 (1) Where the meaning of the statute is ambiguous or unclear, administrative officials have a legitimate role in determining the
proper interpretation of a statute
o This challenged the prior assumption that judges had a monopoly on interpreting the law

(2) Judges shouldn’t rely too heavily on the concept of jurisdictional review – should not brand too many issues as
“jurisdictional”
o Curtail power of jurisdictional review – tells judges not to rely on this concept
 (3) Judges should consider different reasons for deferring to administrative interpretations of the law
o (a) The legislature has designated the administrative official to be the primary decision maker – this should command
respect from judges
 Legislative supremacy
o (b) Administrative officials have relevant expertise and experience interpreting and applying certain statutes, which
judges do not possess
 Social policy experience that far exceeds superior court judges and this experience and expertise is relevant to
interpretation of the statute
 (4) Judges can only overturn an administrative decision where it is “so patently unreasonable that its construction cannot be
rationally supported by the relevant legislation” and so demands intervention by the court
o This is a very high threshold, provided the issue is not jurisdictional (which shouldn’t be relied on too frequently)
o Pre-CUPE: a judge would look at an admin decision and could say: Board is interpreting the duty to bargain in good faith,
this is a jurisdictional issue, in my view, the duty to bargain in good faith doesn’t apply to situation when employer has to
disclose its plans to shut down a plant, so I’ll overturn the Board’s decision.
o Post-CUPE: No more using jurisdictional issue. Where there is ambiguous legal concept, like duty to bargain in good faith,
concept that is open and contextual, I should respect decisions being made by Board, not my place to decide on it, as
they confront questions like this every day
 If a judge would want to overturn Board’s decision, would have to say decision is unreasonable and not
supported by legislation, or decision has fundamental errors: finding of facts are not based on evidence, or
decision ignores important Acts, like immigration decision that ignores Convention on the Rights of the Child.
Then a judge could step in
 Doctrine of deference – admin officials have legitimate role in interpreting the law and judges can only intervene where there
interpretation of the law is unreasonable
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Modern Approach = pragmatic and functional




Reviewing courts were instructed by SCC to assess the extent of their engagement with the admin process from a pragmatic and
functional perspective
Dictated respect for legislature’s choice of decision-maker = primary vehicle for carrying out the statutory mandate
Called for greater attention to legislative signposts indicating restraint on part of reviewing courts, awareness of the expertise of
many statutory regimes and the courts’ lack of familiarity with the working of those regimes as well as purposive/contextual
approach to statutory interpretation
Outcome of approach is courts’ selection of a “standard of review” that defines the intensity with which they review an admin
decision
Standard of review analysis 1988: Pushpanathan v Canada (SCC)
Attempted to refine and elaborate on the CUPE framework.
To determine the proper standard of review, consider:
1. Is there a privative clause?
a. Privative clause: a statutory provision which restricts judicial review. E.g. “decisions of the Board are final and not
subject to appeal.”
b. A privative clause signals to judges to show deference
2. Does the tribunal have specialized expertise?
a. Can be theoretical or practical/experiential expertise
3. What is the purpose of the statute, and the particular provision in question?
a. Is this a statute that the tribunal is familiar with? Is this question within their normal practice?
4. Is the question one of fact, law, or mixed fact and law? Can often be a difficult distinction to make.
a. Questions of fact: high degree of deference owed
b. Questions of law: lower degree of deference
c. Mixed law and fact: intermediate standard required
This assessment could lead to one of three potential standards of review:
1. Correctness: the court can intervene when they disagree with the reasons offered in support of the administrative decision.
a. Low level of deference
b. Don’t have to show that it was unreasonable or irrational, just that they would have interpreted it differently
2. Patent unreasonableness: the court can only intervene if the defect is “immediate or obvious” and “so flawed in terms of
implementing legislative intent that no amount of curial deference” can justify letting the decision stand.
a. High level of deference
b. This was the standard mentioned in CUPE
3. Reasonableness simpliciter: the court cannot intervene merely because it disagrees with the decision, but it is also not limited to
correcting merely “patently unreasonable” decisions.
a. An intermediate standard between correctness and patent unreasonableness
b. Key question: in all the circumstances, is the decision reasonable?
Dunsmuir v New Brunswick
Two Stage Process 2008: tried to simplify this area of the law
 Main Question=should this administrative decision be reviewed according to a “correctness” or “reasonableness” standard?
 Reaffirmed and renovated “pragmatic and functional approach” = standard of review analysis
 This modern approach is more respectful of the comparative strengths of tribunals and of legislative intentions re: their
expanded role
 2 Stage Process
o Stage 1: Determine appropriate standard of review
 Dunsmuir = series of factors used in this determination
 Only 2 possible standards of review:
 Intrusive correctness standard
 Deferential reasonableness standard
o Stage 2: Apply the standard on the merits of the case in order to decide the outcome of judicial review
 SCC conveyed to lower court judges, counsel and parties involved in judicial review that they should be encouraged to simplify
the process of determining the appropriate standard of review
o Where there is existing jurisprudence that determines “in a satisfactory manner” the applicable standard of review, it
should be applied without further consideration of the various factors in the standard of review analysis
o In the absence of such guidance from past decisions, it is sometimes unnecessary for a court to review all factors –
standard of review may be assumed to apply automatically based on the question at stake
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Streamlined methodology (in response to what had become very complex and abstract issue)
Standards of Review (SOR)
The Modern Approach
 Today, the possible standards of review are:
o Correctness: an intrusive standard
o Reasonableness: a deferential standard
 These were reduced from 3 in Dunsmuir (previously: correctness; reasonableness simpliciter; patent unreasonableness)
 Where there is existing jurisprudence that determines in a satisfactory manner the applicable standard of review, it should be
applied without further consideration of the various factors in the standard of review analysis (Dunsmuir)
 Dunsmuir lays out the current framework – the “standard of review analysis”
The current analytical framework: Dunsmuir v. New Brunswick
Main Question=should this administrative decision be reviewed according to a “correctness” or “reasonableness” standard?
(1) Ascertain whether an existing line of precedent has already determined the standard of review with respect to a particular legal
question or issue;
(2) If existing precedent is not determinative, then identify the appropriate standard of review by applying the “standard of review
analysis”:
a) The presence or absence of a privative clause that restricts judicial review (or statutory right of appeal);
(1) E.g. “decisions of the Board are final and not subject to appeal.”
(2) Signals that the judge should show deference to decision
b) A purposive understanding of the tribunal as set out in the enabling legislation;
(1) What is the point of the tribunal?
(2) Is this a statute that the tribunal is familiar with? Is this question within their normal practice?
c) The nature of the question at issue (question of law, fact, or mixed law and fact); and
(1) Questions of fact: high degree of deference owed
(2) Questions of law: lower degree of deference
(3) Mixed law and fact: intermediate standard required
d) The expertise of the tribunal.
(1) Can be theoretical or practical/experiential expertise
Dunsmuir v New Brunswick (SCC, 2008)
Standard of review to complicated, courts wanted to simplify it. Lawyers and judges spent so much time talking about standard of review,
is it patent unreasonableness, is it correctness, is it reasonableness simplicter? At end of decision, they’d finally get around to the actual
issues between the parties. A little ridiculous. In this decision, say two standards: correctness and reasonableness
Facts: Dunsmuir was a court official with the NB Department of Justice – public servant and a statutory office holder at pleasure; was
dismissed after he had been reprimanded 3 times (for not serious things, basically, a little difficult to work with). Schedule a performance
review, but on eve of that review, decide to fire him. Given 4.5 months salary in lieu of notice. Labour Act gives non-unionzed employees
(which he is) the right to grieve. So he grieves. Goes before adjudicator, who was a former Court of QB Justice. Government relied on s.20
of Civil Services Act to support its act that it could dismiss D in this manner. However in order for his dismissal to fit under this section he
could not have been terminated with cause (due to the reprimands) so government officials claimed dismissal was due to the fact he was
not suitable for the position. D argued he was dismissed for cause and was therefore entitled to seek reinstatement. The PSLRA
adjudicator held that termination was not disciplinary but based on employer’s concerns about the appellant’s performance and
suitability for the position held; based on CL on dismissal of public officers he held D should have been informed of reasons and given a
opportunity to respond: declared termination void and ordered him reinstated; on appeal, NBQB applied “pragmatic and functional
approach” and concluded that the appropriate standard of review was correctness – concluded that adjudicator got it wrong and didn’t
have jurisdiction; NBCA held that standard was reasonableness but that decision to not accept the employer’s portrayal of the dismissal
as not for cause was unreasonable.
Issues: Given the decision of the adjudicator, what was the appropriate standard of review?
Held: Standard of review is reasonableness.
Reasoning:
 Judicial Review in general:
o Seeks to address an underlying tension between the rule of law and Parliamentary supremacy with ability to create
admin bodies and endow them with powers
o All decision-making powers have legal limits – judicial review is the means by which the court supervises those limits
o Function to ensure legality, reasonableness and fairness of admin process and its outcomes
 Purpose is to uphold rule of law
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Check and balance: ensures independent institution is in charge of scrutinizing decisions to see if they are
legally defensible
o Standard of review analysis strives to determine what authority was intended to be given to the body in relation to the
subject matter
o In essence rule of law is maintained because courts have last word on jurisdiction and legislative supremacy is assured
because determining appropriate standard accomplished by establishing legislative intent
o Legislative action cannot remove judiciary’s power of review, even by privative clause, because power stems from
judicature provisions of ss.96-101 of Constitution
Should only be 2 standards: Correctness and Reasonableness
o Not the previous 3 (correctness, reasonableness simpliciter and patent unreasonableness)
TWO STEP PROCESS
o (1) Courts ascertain whether jurisprudence (a line of precedent) has already determined satisfactory manner the
standard degree of deference to be accorded with regard to a particular category of question
o (2) where first inquiry proves unfruitful, courts must proceed to analysis of the factors making it possible to identify
the proper standard of review
(1) Jurisprudence
o Existing jurisprudence may be helpful in determining some of the questions that generally fall to be determined on a
correctness standard, for example
 Constitutional issues involving division of powers
 True questions of jurisdiction
 Jurisdiction meant in broadest sense whether or not tribunal had the authority to make the inquiry
 True jurisdictional question explicitly determining whether statutory grant of powers gives it the
authority to decide the particular matter
 Question regarding jurisdictional lines between 2+ specialized tribunals
o Lewans: list is problematic because it uses same language that caused issues in the past
o Question to ask: is there an authoritative decision from a respected appellate court in Canada that has decided standard
of review for the same category of question?
 Probably still want to undertake contextual analysis just to check if SOR is right
o So consult precedent, see if it answers question about appropriate SOR but just to be safe be prepared to argue
contextual analysis
(2) Contextual Analysis of the basis of 4 factors (for determining appropriate SOR)
o (1) presence or absence of a privative clause
 Presence strong indication of reasonableness standard because legislature’s intent that admin decisions be
given deference
 Lewans: whereas statutory right of appeal suggests leg wants court review
o (2) purpose of tribunal as determined by interpretation of enabling legislation
 What is the policy behind the legislation and the administrative regime?
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The fact that there is a specialized forum for administrative adjudication is often taken as an indication of a
desire to have a different way to resolve disputes than the common law.
 This shows legislature wanted to avoid long drawn out trials (10 years). Board decides, and either the QB and
Dunsmier need to learn to get a long, or D looks for a new job
o (3) Nature of the question under review
 Key distinction:
 Questions that are of central importance to the legal system as a whole (constitutional questions, res
judicata questions, questions about concurrent jurisdiction between tribunals)
 Questions of law raised by the enabling legislation itself
 Questions that generally attract a correctness standard:
 General questions of law that are of central importance to the legal system
 Questions of law outside the specialized area of expertise of the decision maker
 Constitutional questions (e.g. division of powers), because of the unique role of s. 96 courts as
guardians of the constitution (may also include Charter questions)
 Questions re: the jurisdictional lines between 2 or more specialized tribunals
 “True” questions of jurisdiction
 Questions that generally attract a reasonableness standard:
 Questions of fact, discretion, and policy
 Questions of law about the enabling legislation itself
 Questions of mixed law and fact
o (4) Expertise of the tribunal.
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Expertise can mean:
 Theoretical expertise: academic credentials
 Experiential expertise: an understanding of the subtext of disputes that judges won’t have.
 Procedural expertise: flexibility in fact-finding, getting to the bottom of a matter more efficiently
 Where tribunal is interpreting its own statute or a statute closely connected to its function with which it is
familiar – deference will usually result – reasonableness
 Where tribunal has developed particular expertise in application of a general common law or civil law principle
in a specific statutory context – reasonableness
 Dealing with discrete and special admin regime in which decision-maker has special expertise
o May not be necessary to consider all the factors
 Application Here
o (1) full privative clause: ruling of adjudicator is final and shall not be questioned or reviewed in any court = increased
deference & that reasonableness is SOR
o (2) legislative purpose of the act is to establish a time and cost effective method for resolving employment disputes –
increases deference and points to reasonableness
 D thinks he got fired for wrong reason and want adjudicator to look at facts and determine if he should be
reinstated – have judicial review could take years instead of months based on statute
 In order to achieve the purpose of the adjudicator role in enabling legislation, judges should not intervene
unless there is a very good reason
o (3) legal question at stake is not one that is of central importance to legal system or otherwise outside specialized
expertise of the adjudicator = increased deference and point to reasonableness
 Issue is in adjudicators own statute
o (4) mutually selected labour adjudicator has relevant expertise in interpreting collective agreements and interpreting
enabling labour relations legislation = increased deference points to reasonableness
 The appropriate standard of review is reasonableness.
Dissent (Deschamps)
 Adopted correctness standard and overturned decision (despite privative clause and longstanding role of labour adjudicators in
resolving workplace dismissal grievances)
 Alternative approach: aims to re-characterize the issue of judicial deference in the review of admin factors based on method
used by appellant courts to scrutinize lower court decisions
o Focuses more on the nature of the question – absent statutory directive to the contrary courts should defer to admin
tribunals on questions of fact and usually on questions of mixed law and fact or on discretion but presumptively not
questions of law
o On questions of law, deference is warranted only where there is a privative clause and specifically not where there is
statutory right to appeal
o Deference also precluded where issue falls outside of regular activities of the decision-maker
 Applied here: adjudicator had to identify the rules governing the contract, which is a question of law; since common law not the
enabling statute is the starting place of the analysis and since adjudicator does not have special expertise in interpreting common
law, courts do not have to defer to his decision, court can make own interpretation of the contractual rules and therefore
applicable standard is correctness
Remaining Questions Post-Dunsmuir
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No generic formula can decide when a specific question is better answered by administrative decision and when it is better
decided by the court: no test for how to be deferential, has to be a fine line drawn in each particular case
What is the role of precedent?
o Should avoid allowing the standard of review to occupy a central role in litigation where there is a sufficiently clear
record of past decisions that govern the issue
o Dunsmuir suggest this will occur where: same decision-maker, same category of question and sufficiently
comparable statutory terms including privative clause or stat right of appeal
o But, where the existing jurisprudence amounts to one or two decisions by a lower court (even an appellate court) is
there a residual case to be made for applying the standard of review analysis in full?
What do we do about cases where existing jurisprudence (or statute) mandates a standard of review that no longer exists
after Dunsmuir in the common law?
o Per Binnie in Khosa, despite Dunsmuir, “patent unreasonableness” will live on in BC, but the content of the
expression and the precise degree of deference it commands in the diverse circumstances of a large provincial
administration will necessarily continue to be calibrated according to general principles of administrative law. That
said, the legislature in BC was and is directing the BC courts to afford administrators a high degree of deference on
issues of fact, and effect must be give to this clearly expressed legislative intention
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Proper scope of judicial review on questions of law?
o Dunsmuir advises that a court should show deference where a tribunal is interpreting its own statute, closely
connected to its function, where it has particular familiarity or expertise
o BUT, Dunsmuir also leaves open intervention where a question of law is one of general law that is both of central
importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise
o What are questions of law of central importance to the legal system as a whole?
 Constitutional questions
 Issues involving overlap between the jurisdictions of different tribunals
 Conflicts between statutes that fall outside the decision-maker’s expertise
Role of factors in general in standard of review analysis?
o Could be redundant to go through them all
o But brief discussion provides useful means of support and solidifies conclusions by demonstrating awareness of all
factors at play
Whether majority’s approach will provide, as it aspires to do, a coherent and workable framework for the system of
judicial review as a whole?
o SCC has referred to SOR analysis in admin areas other than tribunals
Interaction between different factors?
o Particularly role of privative clauses – in Dunsmuir, affirmed longstanding tradition of deference in labour arbitration
only to overturn decision – and dealing with his “home” statute
What are the categories of issues that will be determined according to a standard of correctness?
In Dunsmuir, the SCC suggests that the following issues attract correctness review:
(1) Constitutional questions;
(2) “True” questions of vires;
(3) General questions of law which are “of central importance to the legal system as a whole and outside the adjudicator’s area of
expertise”; and
(4) Questions regarding the jurisdictional lines between two or more competing specialized tribunals.
In 2011-2012, the SCC issues a series of decisions which suggest that correctness review should be reined in:
(1) “True” questions of jurisdiction: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, [2011] 3 SCR
654; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10.
(2) Constitutional questions: Doré v Barreau du Québec, 2012 SCC 12.
(3) General questions of law: Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals, [2011] 3
SCR 616.
(4) Concurrent authority: British Columbia (Workers’ Compensation Board) v. Figliola (?)
Considerations in the Modern Standard of Review Analysis
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Tension (Dunsmuir):
o Courts must be sensitive to the necessity of avoiding undue interference with the discharge of administrative functions;
and
o Courts still should exercise their constitutional functions of judicial review and be sensitive to the need to uphold the
rule of law
Standard of review analysis strives to determine what authority was intended to be given to the administrative body in relation to
the subject matter
o Maintains the rule of law because the courts have the last word on jurisdiction
o Legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing
legislative intent
Components in the Standard of Review Analysis
(1a) Privative Clauses and Statutory Rights of Appeal
Key: where a privative clause or a right of appeal (or both) are present in a statute, they will influence, but not determine the standard
of review.
Privative Clauses
 Privative clause – statutory provision by which the government purports to limit the scope or intensity of judicial review of a
statutory decision-maker
 Privative clause = reasonableness (Dunsmuir)
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Ex: “the decision of the board under this act on all questions of fact/law are final and conclusive…”
Rationale: this clause is a statutory direction from government indicating the need for deference
Presence of such a clause challenges the pervasive assumption that it is ultimately the constitutional function of a court
to determine the rights of individuals according to law
A privative clause cannot oust the authority of the superior courts to carry out judicial review on constitutional issues, or its
authority to ensure that an administrative actor has the statutory authority that it claims and that it is acting within the
bounds of this authority (or intra vires)
o Even if there is a privative clause, superior courts have a fundamental constitutional authority to ensure that a statutory
decision maker has not exceeded its delegated authority
However although judges will always have a right to review the decision they must respect privative clauses by adopting a
more forgiving standard of review
o There are instances where courts have downplayed clauses by expanding concept of jurisdictional error in the past
Statutory provisions meant to trim the scope of judicial review.
Crevier v. Quebec=s. 96 of the Constitution Act, 1867 guarantees right to judicial review of administrative decisions. See also
Dunsmuir at para. 31 (“judicial review is constitutionally guaranteed in Canada”).
Bottom line: judges must respect privative clauses by adopting a more forgiving standard of review.
o For Dunsmuir: push standard of review towards reasonableness standard (less judicial deference), but they aren’t
determinative in that they cut off the inquiry (doesn’t mean: there’s a privative clause, we (judges) can’t look at this)
Reasons why legislatures may insert privative clauses:
o Time: Avoid protracted delays that accompany applications for judicial review
o Cost: Avoid costly litigation in the courts – allowing unrestricted access to the courts confers an advantage on the
wealthy (e.g. employers in labour situations) and may discourage those with less resources from using the tribunal in the
first place
o Expertise/experience of Tribunals: tribunals are sometimes created as an alternative to the courts – meant to keep
disputes from being legalized in court because tribunal has understanding of the subject matter, workplace realities etc.
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Allowing the courts to scrutinize these decisions runs contrary to this purpose
The wording of the provisions historically mattered a great deal in determining the appropriate standard of review
o Judges would draw distinctions between strong clauses and weak clauses
o Generally this is no longer the case – what matters is that the statute has a provision which tells judges to stay out
Current state of law: retain importance in SOR analysis as signal of deference but just one aspect of Dunsmuir framework,
suggests turn away from idea that privative clauses convey clear message about legislative intent
o Dunsmuir could over time dilute impact of privative clauses
(1b) Statutory Rights of Appeal
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Right of appeal = suggests correctness
o A statutory provision meant to provide judicial oversight of administrative decisions
o Ex: “Any party to the proceedings before the board under this Act may appeal from this decision or order to the
Divisional Court …”
o Rationale: the legislation indicates a role for judges, so this will weigh against deference (away from reasonableness)
But, this is not automatic - judges must still respect administrative expertise and the fact that the administrative decision-maker
has primary responsibility for the decision (Pezim and Southam)
o In Pezim (see below), there was a right of appeal, but the court still found the standard of review to be reasonableness
based on:
 Securities regulation as a highly specialized activity, requiring specific knowledge and expertise
 Legislative intent indicated wide discretion re: policy and implementation in the industry
 Commission played a role in policy development
 Question went to the core of the statutory scheme
o In Southam, there was a statutory right of appeal, but reasonableness was the standard of review based on the expertise
of the tribunal
Broadest when it encompasses all possible questions – tends to weigh against deference
Since such provisions also serve purpose of the route that legislature intends judicial review application to follow, judicial
deference signals given by a right of appeal are not as singular as those of a privative clause
Statutes can limit the right of appeal to questions of law, fact, or both
Majority in Dunsmuir did not mention rights of appeal and their impact on the standard of review analysis
o Suggesting they did not speak to alter existing position
o Statute at issue did not contain a right of appeal
o Per Binnie’s concurring reasons in Dunsmuir, role of a broad right of appeal in signaling no deference was emphasized
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So where right of appeal encompasses Q of law, Dunsmuir implicitly suggest that the conventional position (court can
intervene with its own conclusions) may be altered or clarified: decision of tribunal on interpretation of its own statute or
closely related statutes are “usually” entitled to deference and that questions of law (not of central importance to legal system)
outside expertise “may” be compatible with reasonableness standard
Historically, if there was a statutory right of appeal, judges would always review on a correctness standard
o Today, this is no longer the case (Pezim)
Bottom line: where a privative clause or a right to appeal (or both) are present in a statute, they will influence but not
determine outright the standard of review
Constitutional Limits on Privative Clauses
 General rule: the constitution implicitly guarantees the authority of courts to review administrative decisions for errors of law or
jurisdiction or procedural unfairness (Crevier v Quebec)
o S. 96 guarantees a right to judicial review of administrative decisions
o Applies regardless of how strongly worded a privative clause is
 Public statutory authorities’ powers are legally limited – it is ultimately the role of the courts t determine what those limits are
 General rule: a legislature cannot oust the court’s power to review an administrative decision - it is beyond the constitutional
capacity of the legislature
 Legislation that confers power on public authorities is always subject to challenge on the basis of:
o Violation of the division of powers
o Violation of the Charter or other Constitutional grounds
o Failure to observe limits on legislative capacity under the Constitution, or unwritten principles of the constitution
 So, privative clauses can’t insulate completely, but aren’t irrelevant – judges must respect privative clauses by adopting a more
forgiving standard of review
(2) Expertise of the Decision Maker
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Expertise of the decision maker is measured by the court in light of the relevant statutory provisions, and relative to the court’s
understanding of its own expertise
Consider:
o Indicators in the statute itself
o Court’s understanding of the legislature’s aim when creating the statutory regime
Types of expertise:
o Composition of an administrative body – might endow it with unique knowledge as to questions put before it
 May mean professional or personal expertise, or
o Relative institutional experience – body might be so habitually called upon to make findings of fact in certain context
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the expertise of the collective history and institutional memory of a decision maker and its membership, or
years of operation in the field
More deference will be awarded where:
o The tribunal is interpreting its own statute or statutes closely connected to its function
o The tribunal is dealing with an issue with which it will have particular familiarity, or where it has developed particular
expertise in the application of a general common law rule in relation to the specific statutory context
A relative concept, not an absolute one – greater deference will only be called for where the decision making body is more expert
than the courts and the question falls within the scope of this greater expertise (Dr Q)
Per Southam, expertise is the single most important factor in the standard of review analysis
o After Dunsmuir, this likely isn’t the case – now it is the nature of the question
o In that case, the expertise was in economics and commerce, and the question fell directly within this expertise –
“involves matters that business women and men and economists are better able to understand than a typical judge” (a
controversial statement)
Pezim v British Columbia (Superintendent of Brokers) (SCC, 1994)
Facts: A junior resource company that explores mine sites in interior BC. High energy, high risk investment. Team of geologists going
through bush, staking out claims they hope will result in finding a vein of gold/copper/nickel/etc. Over a period of time in summer months,
board of executives for company is getting reports from the field of geological tests. Sometimes, these reports indicated they might have
something. Prior to making that information public, the board issues options to purchase shares to members of the board. Looks like
insider trading. Using inside information to allow certain people to purchase shares. BC Securities Commission found Pezim failed to make
appropriate disclosure of material change in company assets in regards to transaction with stock options, so suspended them from trading
shares for 1 year. Pezim argued that only thing to change was the assessment of the land already owned. Appealed, as permitted under
the Securities Act, to the CA, arguing that the commission erred in law in its interpretation of “material change” in the affairs of the
reporting issuer of shares, CA allowed appeal. Argued a material change is when company’s physical assets change: our inventory
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increased significantly, we bought more trucks. When that happens, we need to disclose. But here, we’ve always had the same stakes
claimed out, it’s the same patch of ground. Only difference is we’ve acquired more knowledge about what’s underneath the surface, but
no material change in that asset. BCCA agrees, overturns SEC decision. Goes to SCC. SCC says we see a statutory right of appeal here, but
members of the SEC are better situated to interpret their enabling legislation, they have a more sophisticated understanding of what
makes a material change then generalist judges
Issues: What is the appropriate standard of review of a decision of a securities commission where there exists a statutory right of appeal,
and the case turns on a question of interpretation?
 Lewans How if at all is question of expertise relevant to the interpretation of that term in the statute?
Held: Even though there is a statutory right of appeal which suggests correctness, expertise supports deference and appropriate standard
of review is reasonableness.
Reasoning:
 Nature of statute – regulatory part of a much larger framework regulating securities
o Primary goal is protection of investors but also includes capital market efficiency
o Securities regulation is a highly specialized activity that requires specific knowledge and expertise.
 Principles of judicial review
o Central question in determining standard of review is to examine legislative intent in conferring jurisdiction on the
admin tribunal. Will look at numerous factors
 Tribunals role or function
 Privative clause
 Whether question goes to jurisdiction of tribunal involved
o Two extremes of spectrum:
 Deference highest (reasonableness): privative clause, deciding matter within jurisdiction, no statutory right to
appeal
 Deference Lowest (correctness): interpretation of provision limiting tribunal’s jurisdiction, statutory right of
appeal and where tribunal has no greater expertise than court on issue in question
o Here case falls between: there is a statutory right of appeal, but this is a highly specialized tribunal dealing with an issue
at the core of its regulatory mandate and expertise –
o Even where there is no privative clause and there is a statutory right of appeal, concept of specialization of duties
requires that deference be shown to decisions of specialized tribunal
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the tribunal has more knowledge of what impact disclosure will have on the trading of securities across the
whole market.
o Lewans: at this point in history SOR analysis probably would have led to correctness, as CA found but SCC changes this
by recognizing legislative intent
o Courts must recognize that they simply may not be as well-equipped as admin tribunal or agency to deal with issues
which Parliament has chosen to regulate through bodies exercising delegated power
 Other Dunsmuir factors:
o Role of commission: Where a tribunal plays a role in policy development, a higher degree of deference is warranted with
respect to its interpretation of the law.
o Question of law at issue: material change and material fact defined in act
 Here: Given the nature of the securities industry, the Commission’s specialization of duties, the policy development role, and the
nature of the problem, considerable deference is warranted notwithstanding a statutory right of appeal and no privative clause
so appropriate SOR is reasonableness.
Commentary: decided before Dunsmuir changed the framework. A wider reading of the purpose of the BC Securities Act was a major
factor in this decision. Case is ground-breaking because it established that courts should defer to an agency even in the face of a right of
appeal.
Canada (Director of Investigation and Research) v Southam Inc
Companion case to Pezim – also contains statutory right of appeal but SCC also applies deference to tribunal’s decision
Facts: Southam Inc. wanted to improve its share of the community newspaper market by purchasing more community newspapers.
Respondent applied for order requiring S to divest itself of 3 strongest papers, alleging that concentration of all papers in one person
hands lessened competition substantially. The Competition Tribunal determined that this was likely to lessen competition substantially,
and ordered Southam to divest itself of 1 of the papers. Key issue was whether the consolidation of newspapers was “substantially
reducing” competition in the industry. There was a statutory right of appeal. And the director of investigation appealed the decision and
S appealed the remedy.
Issues: What is the appropriate standard of review of the Competition Tribunal’s decision and was this the appropriate remedy?
Held: Appropriate standard of review was reasonableness – it chose appropriate remedy
Reasoning:
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Where a statute confers a right of appeal, appellant court need not look to see whether tribunal has exceeded its jurisdiction by
breaching natural justice or by rendering a patently unreasonable decision
o The standard of review should be determined with regard to the nature of the problem, the statute and its purpose
(applicable law properly interpreted in light of its purpose), and the expertise of the tribunal.
 The nature of the problem: is a question of mixed law and fact and suggest deference
o Q of law – Q about what the correct legal test is
 Judges can interfere more
o Q of fact – Q about what actually took place between parties
 Greater deference to admin board
o Q of mixed law and fact – whether the facts satisfy the legal test.
 In-between Q of law and Q of fact in terms of deference to admin board
o Here: mixed because applying a legal standard to the facts – bound up with the facts, cannot separate question from
the facts – is the legal test satisfied on these facts.
 But Lewans: could classify as purely question of fact – fact driven inquiry into what the company did in this case
and how its actions impacted degree of competition in this industry
 Words of Enabling Statute: confers broad, even unfettered right of appeal as if decision was one of a trial court – suggests a less
than deferential posture for appellate courts than if a privative clause was present
o Absence of privative clause is not determinative
 Purpose of the statute that tribunal administers: The purpose of the Competition Act is to maintain and encourage competition
in Canada to promote efficiency in the economy.
o More economic purpose then legal
o In order for tribunal to fulfill purpose it has to engage in complex economic analysis
o Appellate court likely to encounter difficulties in understanding the economic and commercial ramifications of the
tribunal decisions and consequently less able to secure the fulfillment of this purpose, so the natural inference is that the
purpose of Act is better served by tribunal.
 Area of Expertise most important factor that a court should be considering when trying to determine appropriate SOR
o The tribunal has specialized expertise to oversee this scheme whose objectives are economic.
 The expertise here lies in economics and commerce, and the dispute falls squarely within this expertise.
Involves matters that businessmen and economists are better able to understand than a typical judge.
o Dispute here concerns definition of relevant product market – falls squarely within Tribunal’s expertise
Commentary: case established the “middle” standard of reasonableness simpliciter. States that expertise is the most important factor –
but after Dunsmuir, the nature of the question is the primary factor.
(3) The Nature of the Question


Pre-Dunsmuir: most important factor in pragmatic and functional approach was expertise
After Dunsmuir, the nature of the question became the focus of the standard of review analysis
o In some cases, the nature of the question will presumptively determine the standard of review
o But, the nature of the question is the most amenable to manipulation
 Traditional approach: distinguish decisions on the basis of –
o Questions of law: questions about what the correct legal test is (suggested less deference)
o Questions of fact: questions about what actually took place between the parties (suggested more deference)
o Questions of mixed fact and law: questions about whether the facts satisfy the appropriate legal tests (suggested more
deference)
 The problem with the traditional approach:
o Distinction between questions of law and questions of mixed law and fact is difficult
o Challenging to distinguish these categories from the further “discretionary” category: jurisdictional questions –- involved
doctrine of preliminary question and collateral fact used to find jurisdictional error and enabling court to assert its
authority to overturn decisions even against strong privative clauses
Approach to the “nature of the question” inquiry pre-CUPE:
 Scope of judicial review hinged on an analytical distinction between:
o Jurisdictional issues: court could re-assess the question for itself
o Non-jurisdictional issue
 The problems:
o Judges never explained what constitutes a “jurisdictional” issue – so the creep of jurisdictional review became more
invasive
o Doctrine assumes that judges have a monopoly on interpreting what the law requires
 Demonstrated by historical analysis of judicial review as the administrative state is growing, judges are
becoming interventionist
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o
Practice of judicial review in Canada was hostile to “new” forms of administrative law (ie: collective bargaining)
The approach in CUPE:
 SCC articulates a new “pragmatic and functional” approach to judicial review, which emphasizes judicial respect or deference
towards administrative decisions.
o Rationale: legislature has delegated legal responsibility to an administrative official for the issue, and administrative
officials have relevant expertise
 Moves away from the jurisdictional/non-jurisdictional distinction
o But not completely eliminated
 Cases decided under this method: Pezim, Southam
o Focus is on expertise, the nature of the problem (i.e. is it a question of law, fact, or mixed law and fact)
The approach in Dunsmuir:
 Issues likely to be addressed on a correctness standard:
o (1) Constitutional questions re: division of powers between Parliament and Provinces
 Potentially also includes Charter questions
o (2) “True” questions of jurisdiction or ultra vires
 Unclear what this means
o (3) “General” questions of law which are of “central importance to the legal system as a whole”
 Ex: issues of res judicata, Pushpanathan
 Rationale: to ensure “uniform and consistent” answers
 Characterizing a question as a general question of law may put it beyond the specific expertise of a Board (e.g.
Pushpanathan)
o (4) Questions re: the jurisdictional lines between two or more competing specialized tribunals
 In order to have a coherent legal system the courts as an independent authority needs to be able to specify
jurisdictional lines so conflicting decisions aren’t rendered
o (5) Questions of law that are outside the expertise of the tribunal (ex: human rights/ international treaty interpretation
in Pushpanathan)
 Issues likely to be addressed on a reasonableness standard:
o (1) Questions of fact
 Questions of fact or credibility are generally due considerable deference, notwithstanding any statutory right of
appeal (Dr Q)
 Rationale: the primary decision maker has had 1st hand access to the information, and so is better positioned to
evaluate and weigh the evidence
o (2) Questions of law arising from interpretation of the enabling statute (or closely connected statutes)
 But not those arising from outside the expertise of the tribunal (Pushpanathan)
o (3) Questions involving the exercise of administrative discretion
 Where the statute gives broad discretion to an agency, commands deference (Khosa)
 Prior approach was to treat these questions separately, but they were brought into the standard of review
analysis with Dunsmuir and Baker
 Look for language like “in the circumstances” or “in the opinion of…” – conveys that the decision maker must
use its powers in good faith for the purposes that the legislature intended
o (4) Public policy (as opposed to individual legal rights)
 E.g. “polycentric” issues which require the consideration of numerous interests simultaneously (Pushpanathan)
o (5) Questions of mixed law and fact
 Same justification for deference as for questions of fact
 Recognizes that the core of many decisions is applying a rule to the facts of a particular case
Factual Questions
 Dunsmuir where question is one of fact, discretion or policy deference will usually apply automatically
 Same for questions where factual and legal issues are intertwined and cannot be separated
 Why do factual questions call for deference?
o Primary decision maker has had first-hand access to the info on which factual assessments are made
 Thus better positioned to evaluate and weigh the evidence in relation to factual issues in dispute
o Factual findings made in a specific case are of less concern for the court where they are unlikely to affect future cases
or the legal system in general
 So long as decision maker arrived at factual conclusion reasonably (supported by evidence) court will not
intervene
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
Same justification where factual issues cannot readily be separated from legal issues
o Court treat decision as single act, subject to 1 SOR – recognize that the core of many decisions is the activity of applying
a rule from law to the facts of a particular case
Dr. Q v College of Physicians and Surgeons of British Columbia (SCC, 2003)
Example of court deferring to admin board decision even though there was a statutory right of appeal because of the nature of the
question
Facts: College committee found the doctor had taken physical and emotional advantage of a female patient, and suspended him for 18
months and imposed conditions on his return. Case turned on assessment of credibility of patient and doctor – on basis of the manner
and internal inconsistency of their testimony, the corroborative evidence, committee stated that it accepted the evidence of the
patient as to the occurrence of the sexual acts and disbelieved the doctor where he denied that the events occurred. On appeal under
the Medical Practitioners Act, the reviewing judge set aside the committee’s decision, disagreeing with findings of credibility.
Issues: What is the appropriate standard of review of the committee’s decision that the appeal should have used?
Held: Appropriate standard of review is reasonableness simpliciter and the reviewing judge exceeded the limits of judicial review
authorized by the Act by engaging in reconsideration of the committee’s findings of fact
Reasoning:
 Role of reviewing judge is not to substitute his view of evidence for those of the tribunal but to review the decision with
appropriate degree of curial deference
 Incorrect approach by reviewing judge based on 2 mistaken assuptions:
o Since the Standard of proof was the intermediate standard of “clear and cogent” evidence the reviewing judge was
entitled to review the evidence and make her own evaluation of whether it reached this standard
 No –“clear and cogent” requirement relates to legal standard of proof employed at the committee level – does
not instruct reviewing court on how to scrutinize decision because this is solely a question of SOR
 Even though statute gives right to appeal, after Pezim and Southam, this doesn’t mean that judge gets to
substitute their own opinion on questions of fact and law – judge should afford some measure of deference to
admin decision maker
o Because the act expressly conferred right of appeal, the review was not to be treated like the usual review of an admin
tribunal’s decision (where judge would first determine SOR then apply that to the decision)
 Pragmatic and functional approach, SOR is determined by considering 4 contextual factors
o Statutory mechanism of review
 Broad right of appeal or provision for a certified question to be posed for review by court –less deference
 Silence – neutral, does not imply high standard of scrutiny
 Privative clause – more deference
o Relative expertise - greater deference where decision making body is one that in some way is more expert than the
courts and question under consideration falls within scope of this greater expertise
o Purpose of state –increased deference where legislature intended to resolve and balance competing policy objectives or
the interest of various constituencies, or when tribunal given range of remedial choices or admin responses, concerned
with protection of public, engages policy issues or involves balancing multiple sets of interest
 Decreased deference where statute requires resolution of 2 party disputes (more judicial)
o Nature of the problem
 Pure fact – more deference, pure law (especially where decision is one of general importance or great
precedential value) – less deference
 Lewans how would you assess the reasonableness of finding of fact
o Is this a logical narrative? Glaring inconsistencies?
o Are inferences reasonably supported by facts?
 Here: seems like College is actually making a reasonable assessment of evidence, paying attention to
both direct and indirect evidence
 Determining credibility = question of fact
 Standard of proof issue = question of law
 Here: low degree of deference indicated by broad right to of appeal and fact that committee is no more expert than court is on
issue in question.
o Also: analyzing purpose of statute and provision in question yields ambivalent result: legislature intended college to
balance competing interests and policy objectives but adjudicating claim of professional misconduct is quasi-judicial in
nature
 Need for deference heightened by nature of problem: question of credibility
o This is a quintessential question of fact
o Relative advantage of committee that heard viva voce evidence must be respected
 Role of Court of Appeal
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o
o
o
CA stated standard was if the judge was clearly wrong when review the evidence
Not the appropriate test: CA was supposed to determine whether reviewing judge had chosen and applied correct SOR
and if she hadn’t, to assess the admin decision in light of the correct SOR, reasonableness
At this stage, CA is dealing with appellate review of a subordinate court not judicial review of admin decision so normal
rules apply – reviewing judge’s question of what standard to apply is one of law and thus must be answered correctly
Questions of Law
 Dunsmuir outlines categories of questions of law that will invite correctness SOR
o Consitituitonal questions involving division of powers as well as other constitutional issues
o Question regarding jurisdictional lines between tribunals
o Questions of “general law” that are both of “central importance to legal system as a whole” and “outside the
adjudicator’s specialized area of expertise” and that “impact on the administration of justice as a whole”
 Rational “uniform and consistent answers
Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC, 1998)
Facts: Pushpanathan applied for convention refugee status. Claim was never adjudicated because he was granted permanent residency.
He was later arrested for conspiracy to traffic in heroin ($10 million street value), which meant he could be deported. So, he renewed his
convention refugee claim under UN Convention relating to Status Refugees. Immigration and Refugee Board refused on the basis of a
clause which stated that the provisions of the convention did not apply to a person “who has been guilty of acts contrary to the purposes
and principles of the UN,” deeming that drug trafficking is contrary to the purposes and principles of the UN. This provision is really
concerned with what happens when a war criminal comes to Canada and claims refugee status when they are going to be tried back home
for war crimes (or going to be punished). In that case, a war criminal claiming refugee status, this provision applies. But what about
someone found guilty of trafficking narcotics, is that an act contrary to the principles and purposes of the UN. Immigration Appeal Board
said yes, this provision applies, so we’re going to deport him. P seeks judicial review, asking court to look at decision on basis of procedural
component (got fair hearing and disclosure, etc) BUT that the reasoning behind the decision is flawed. Wants substantive review. First
thing court asks: what is appropriate standard of review: correctness or reasonableness s.83(1) of Immigration Act justifies appeals for
“question of general importance” which was certified by the Fed Court
Issues: What is the appropriate standard of review of the Board’s decision?
Held: Correctness standard applies to determination of law by Board. Board incorrect, made a mistake in interpreting the UN convention.
 That standard of review is correctness means that it is like a de novo review of the facts. If apply correctness to finding of facts, it
says you don’t need to look at any finding of fact made by lower court. Appellate court can look at the record and make its own
finding of facts.
o Similar with question of law. Correctness standard of review says you don’t have to look at admin decision, can proceed
directly as a court to consider how you would have interpreted the UN convention
 Standard here:
o If Board decides Convention applies to drug trafficking, it will apply to hundreds of future cases that come to Board, so
this looks like an application of law, so a question of law question
o Is it possible to define the clause in Convention without thinking about the facts of this case? This makes it seem like a
mixed question of fact and law
o Looking at Statutory mandate of Immigration Appeal Board, do they have expertise in interpreting the UN Convention
relating to the status of refugees?
 In this case, it is a specific part of IAB that deals with Convention refugee claims only. Do they have relevant
expertise and special book learning regarding this issue? Experience? Fact-finding procedures that allow them
to better interpret the UN Convention relating to refugees?
 On questions of fact regarding what the political situation is in a country (Sri Lanka), whether or not a
person faces real prospect of threat, torture, life in danger, YES, they have expertise on this. They know
how to use intelligence reports to decide if someone is a Convention refugee
 In interpreting a provision of the UN Convention relating to acts which are contrary to the principles
and purposes of the convention, on a question of law, they don’t necessarily have expertise
Reasoning:
 SOR was not argued in either decision below and despite reluctance of court to decide issues not fully canvassed before it,
determined the SOR is prerequisite to disposition of this case.
 SOR not established in previous jurisprudence on IRB so must apply pragmatic & functional analysis to Act
 Relevant experience or expertise
o Familiar with category of immigration appeals but not with interpreting international treaties
o No expertise, abstract question of law outside IAB experience, so court equally able to answer question
 Purpose of the acts as a whole and the provision in particular
o Where purpose of statute is conceived by decision-maker as balancing constituencies, deference is supported
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o

Other factors include range of admin responses, fact that commission plays a “protective role” towards public, and
having role in policy development = part of broad principle of polycentric issue
 Polycentric issue is one which involves large number of interlocking and interacting considerations
o Here context of adjudicative function is not polycentric – not a give and take between different groups but vindication
of a set of relative static human rights and ensuring that those who fall within prescribed category are protected.
Nature of the Problem
o Focus is on interpretation of treaty provision so is question of law – whether it applies to trafficking in narcotics or
whether it applies to a smaller subset of cases dealing with war crime
 No real dispute about facts of the case
o Pure questions of law may be granted deference where other factors suggest this
 But where other factors are ambiguous then less deference should be shown to a pure determinations of law
o Generality of the question decided will weigh in favour of correctness – Case involves determination which could
disqualify numerous future refugee applicants as a matter of law
o Without an implied or express legislative intent to the contrary as manifested in other factors, legislature should be
assumed to have left generalized propositions of law to the Courts
Discretionary and Policy Questions



Not really settled area of law but to the extent it is settled it is from Baker
Discretionary decisions - choices between different options – not exclusive or previous categories
o Ie: Q of law – silence or ambiguity in the statute allow for different interpretations each of which may be reasonably
supported by the terms used, context and purpose
o Ie: Q of fact – discretionary choices in evaluation of the factual assertions by the parties or in the judgment of whether
an evidentiary threshold has been met
o Ie: Q of mixed F/L – evaluate factual findings in light of legal tests
To identify discretionary question key is to look to relevant statute to determine whether it frames the decision maker’s authority
in broad and general terms such that it requires choices to be made from wide variety of options
o Language may include
 In the public interest
 In the circumstances
 In the opinion of
o Such phrases may suggest there are no limits but decision-maker always limited to using its power in good faith and for
legislatively intended purpose connected to statute
Canada (Citizenship and Immigration) v Khosa (SCC, 2009)
Facts: Khosa, a landed immigrant, was found guilty of criminal negligence causing death with regard to alleged street racing incident, and
applied unsuccessfully to the Immigration Appeal Division to avoid deportation. Khosa maintained he was not street racing, and he feels
horrible, but it was not street racing. He was found guilty, and deportation procedures were started. He was a landed immigrant but
hasn’t relinquished his Indian citizenship. Argued he should stay on humanitarian and compassionate ground: no immediate family back
home, my new wife is here, if you send me back to India you will be separating me from everyone that I care about. He appealed, and the
reviewing judge dismissed the appeal using the patent unreasonableness standard of review. Fed CA applied reasonableness simpliciter
standard and set aside IAD decision. The key issue was whether Khosa had shown sufficient humanitarian and compassionate
considerations to warrant relief from the deportation order.
 Did not argued that he didn’t get a fair hearing (oral hearing, introduced evidence, etc) argued that the reasons that IAD gave
does NOT match up with decision making rubric that IAD has adopted, they weighted some factors more than others (more than
humanitarian reason)
Issues: What is the appropriate standard of review of the Immigration Appeal Division?
Held: The appropriate standard of review was reasonableness – Fed CA erred in intervening to quash IAD decision
Reasoning:
 How would this decision be characterized? Question of law, question of mixed law and fact, question of fact?
o Question of mixed law and fact: just applies to him, fact based determination of whether he should stay in the country,
discretionary decision (may be allowed to stay in Canada if you raise humanitarian conditions, not shall stay in Canada if
you raise these issues)
o Public policy issues: IAD is deciding if he constitutes a danger to society, whether lack of remorse means he’ll get behind
wheel again and do it again
 Majority of FedCA felt IAD disposition was unjust to K but parliament saw fit to confine that decision to the IAD, not to judges
 Nature of the question – mixed law and fact
o Suggest SOR of reasonableness – deal with this statute more routinely, delegated decision making authority over therse
issues
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
The debate in the lower courts between patent unreasonableness and reasonableness simpliciter has been rendered moot by the
intervening Dunsmuir decision. The appropriate standard is reasonableness. SOR is reinforced by reference to factors:
o Privative clause grants exclusive jurisdiction to determine all questions of law and fact
o Purpose of IAD as determined by statute is to determine a wide range of appeals – Parliament recognized hardship
may come from removal of resident so provided a power to grant exceptional relief
 Left IAD to determine what counts as “humanitarian and compassionate considerations”
o The IAD decision required the application of broad policy considerations to the facts.
 Here: The IAD decision to withhold relief was based on assessment of all the facts, had the benefit of conducting the hearings and
have considerable expertise.
Ratio: characterization of decision as discretionary not determinative of SOR but plays important role
Commentary: Lewans thinks that this approach to reasonableness is problematic – assuming the proper SOR is reasonableness, how
should one go about determining whether admin decision is in fact reasonable?
 See Baker for BEST example of how court goes about assessing reasonableness
o Solid methodology
o Q: why was B denied leave to remain in Canada on humanitarian and compassionate grounds?
 (1) What was the Decision? (text of immigration officer’s decision, wording, justification)
 Start with actual text of admin decision: try to understand it on its own terms
 Because duty to give reasons is flexible, admin decision might come in a variety of different formats
(oral, written, informal notes) – try to understand logic
 Decision likely isn’t reasonable if you can’t determine why it was made – must be transparent and
intelligible
 (2) Were reasons given consistent with relevant law that bears on this question? (see if a decision that is
fundamentally at odds with purpose of statute, ministerial guidelines, international conventions – indicates
decision might not even meet this higher SOR)
 Confirm that reasons are consistent with evidence – or is there prejudice/bias?
 Apparent that reasoning based on stereotypes, unfound inference
 (3) Whether reasons given are commensurate with interests affected? (some decisions in our legal system
have great impact on individuals, some lesser – where greater, we usually expect better reasons)
 Didn’t have regard for purpose/objectives of statute (to keep families together) or the ministerial
guidelines that repeated those guidelines and treaty conventions
Correctness Review
Dunsmuir at para. 50:
“When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will
rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of
the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.”
 Correctness review on findings of fact: the reviewing court is entitled to engage in de novo fact finding on the basis of the record.
 Correctness review on questions of law: the reviewing court is entitled to disregard the administrative decision and develop its
own interpretation of the enabling legislation, common law doctrine, Charter jurisprudence, etc.
Reasonableness Review




More forgiving standard
Different definitions of reasonableness
o CUPE v. New Brunswick Liquor – the decision “cannot be rationally supported by the relevant legislation”
o Canada (AG) v. PSAC – the decision is clearly irrational, that is to say evidently not in accordance with reason
Reasonableness review of findings of fact: the court is only entitled to intervene where the conclusion is unjustifiable or irrational
in light of the evidence.
o You ignored something or you concluded something that is not supported by the facts
 Baker: Officer based his conclusion on fact that Baker will never work again and we can’t afford that as a
country. When SCC looked at those conclusions (that were pretty stereotypical and basically said who cares
about the facts, this is what I think) and compared those with actual record (reports filed by Social Worker who
said she’s worked most of her time in Canada and will work again soon, and psychologist who said as long as
she stays on her meds and has family she’ll go back to gainful employee soon), which wasn’t reported,
concluded that Officer decision was unreasonable and not based on facts
Reasonableness review on questions of law: the court is only entitled to intervene where the conclusion is unjustifiable in light of
relevant law (enabling legislation, regulations, common law doctrine, Charter values, departmental guidelines, international law,
etc.)
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o
Baker: in addition to discounting evidence, the Officer seemed to discount a lot of relevant sources of law: declared
purposes and objectives of the enabling legislation, departmental guidelines that fleshed out those objectives,
international law (UN Convention on the right of a child)
 Don’t need to quote every source, but need to be alert to these laws, and if you send Baker back home, you are
breaking up the family, and you do not undertake this decision lightly
 Maybe a way to reasonably make a decision to send Baker back home (maybe she’s a threat to public safety,
she’s been found guilty of abusing her kids, something), but the way the decision was made, it was not
reasonable
Practically speaking, how should judges assess whether an administrative decision is “reasonable”?
1.
2.
3.
4.
“In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within
the decision-making process.” Dunsmuir v New Brunswick.
a. Adequate justification: justification which demonstrates that decision maker was alert, alive, and sensitive to relevant
legal considerations
i. Relevant law: can be wide-ranging. Includes the purposes and objectives of enabling legislation, but may extend
to common law, soft law (departmental regulations, policy documents – not in statute)
b. Transparent and intelligible
The decision must demonstrate that the decision-maker was “alert, alive and sensitive” in relation to a purposive understanding
of relevant law (statutes, common law, regulations, guidelines, treaties, etc.). Examine the reasons and ask whether they
articulate an adequate justification under the circumstances, in the sense they indicate appropriate regard for relevant law and
do not ignore or discount important legal considerations. Baker v Canada
a. Alert, alive and sensitive
The decision does not have to include all the arguments, statutory provisions, jurisprudence or other details that a reviewing
judge would have preferred. It just has to provide a reasonable justification for the outcome. Newfoundland Nurses’ Union v
Newfoundland and Labrador (Treasury Board)
a. Decision doesn’t have to be perfect
Because reasonableness “takes it colour from the context”, consider whether the onus of reasonableness review becomes more
demanding when the practical consequences of the decision become more significant for the individual affected by the decision.
Canada v Khosa
a. What is reasonable for denying someone a liquor licence, may be more forgiving of decision
b. What is reasonable for deporting someone, may want more reasons and better job making decision
c. Reasonableness review tends to shift in the same way as the duty of procedural fairness shifts
(4) The Purpose of the Legislation, and the provision in particular



Involves a question of the general purpose of the statute scheme in which the decision is taking place
General principle: increased deference is called for where:
o The legislation is intended to resolve and balance competing policy objectives or the interests of various constituencies
(Dr Q)
o The statute requires a tribunal to select from a range of choices (Dr Q)
o The statute engages policy issues (Dr Q)
o The legislative purpose deviates substantially from the normal role of the courts, suggesting that the legislature intended
to leave the issue to the discretion of the decision maker (Dr Q)
Purpose can be discerned from:
o Express language of a statute
Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC, 1998)
Facts: See above facts
Issue: Was the tribunals interpretation of the UN convention correct.
Decision: No, the tribunals interpretation was incorrect
Reasoning:
 Court found that the tribunals interpretation of the convention was incorrect
o He concludes that trafficking does not fit the exception in article 1F(c)
 Intended was to prevent people who have committed acts against humanity from getting refugee status
Calgary v Alberta (Municipal Government Board)
Facts: Dealt with property tax assessment and it was levied on owners of a shopping mall. The owners thought it was outrageous and
launched a challenge and eventually reached an agreement with municipality that was acceptable. The tenants were not satisfied because
they had to pay a proportional part of the property tax and they brought an appeal to the Municipal government board to challenge the
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tax assessment. The municipal board adopted a broad interpretation of who was an assessed body which allowed the tenants to appeal
the assessment based on the enabling legislation
o The complaint may only be made by an assessed person or taxpayer and the board said this was broad enough to allow the
bay to challenge and the city of Calgary challenge this decision of the board
Issue: what is the appropriate standard of review
 Dunsmuir analysis for what is the appropriate standard of review
 Concluded reasonableness because when looking at all the factors it points to this
 IS the decision reasonable?
Decision: Yes the decision is reasonable even though the court may have reached a different conclusion
Reasoning:
 First step is look at the tribunal's reasons and why they thought in enabled by to challenge
 Act simply says an assessed person or taxpayer may file a complaint instead of the assess person.
 The plain language is broad enough to capture the bay and allow them to challenge
 The board also said that adopting this broad interpretation will not create a flood-gate problem based on our
expertise
o The court looks at this analysis and says this looks consistent with the plain reading of the legislation and therefore this
rationale should be respected because it is justifiable based on the enabling legislation and the law
 In reasonableness key is the analysis of the tribunals findings (emphasis on this)- administrative rationale
Exam question:
 Go through Dunsmuir analysis to get to Dunsmuir
 Then ask is the decision reasonable
o Is it supported by the evidence
o Is it reasonable as a matter of law
 Look at enabling legislation
 The specific provision involved
 If it conflicts then there is a good argument for saying it is unreasonable
Dore v. Barreau du Quebec (SCC 2012)
Facts: Law society of Quebec disciplines Dore for sending an inappropriately worded letter to a judge of the Superior Court of Quebec;
Lawyer alleges that the penalty (21 day suspension) infringes his charter right to freedom of speech under s.2(b) and seeks judicial review
Issue: What is the SOR when a discretionary admin decision involves analysis of Charter values?
Decision: Reasonableness
Reasoning:
 Look at Dunsmuir analysis:
o Expertise – there is an expertise argument because the Law Society has exclusive right regarding the conduct of its
members however with examining charter issues they may not have expertise
 The court makes a point that the charter analysis is largely factual and dependent on the context of the case
and here the law society has a great deal of context sensitivity that the court should respect
o The nature of the question
 The court says even if a charter value is implicated, understanding it on the basis of this case is largely factual.
o These factors pull SOR towards reasonableness
 Was the decision reasonable
o Council said that yes lawyers should look after clients best interest and sometimes that means criticizing the courts
conduct but there are limits and they were crossed when Dore called the judge loathsome and that he lacked social skills
o The decision could be reasonable, they have demonstrated an awareness of the need to balance the issues, and have
given sufficient reasons
o The SCC is opening the door for admin decision makers to come into the charter issues
 Saying that as long as the admin tribunal are demonstrating an awareness of the charter issues within your
mandate then courts will respect that if it I reasonable
Ratio: While SOR regarding decision about constitutionality of legislation still seem to be correctness under Dunsmuir, the SOR for
discretionary decision that involve the charter values is reasonableness.
Jurisdiction and the Constitution
Issue #1=Do administrative decision-makers have the legal authority to determine whether their enabling legislation infringes Charter
rights? (Cooper, Martin & Laseur, s 11 of the APJA and regulations)
Issue #2=Can administrative decision-makers refuse to apply their enabling legislation on the grounds that it infringes Charter rights?
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s. 52(1) Charter:
“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.”
s. 24(1) Charter:
“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
Cooper v. Canada (Human Rights Commission)
Lamer CJ:
1. Canada is a Parliamentary democracy in which the legislative branch is supreme and primarily accountable to the electorate for
its decisions;
a. Parliamentary sovereignty (Parliament is supreme law giver, monopoly on making new laws. Judges have their own
monopoly on interpreting law, especially with fundamental constitutional legal values. Admin officials are responsible for
implementing the law as legislated by Parliament and interpreted by Judges in light of common law principles. But admin
officials don’t have independence judges do, can be hired and fired at will, so admin officials will interpret Charter values
in a way corrupted by politics
2. While legislation is also subject to judicial review under the Charter, that practice is inherently controversial because it gives
unelected officials the power to strike down democratic decisions;
3. Therefore, the power of reviewing legislation for Charter compliance should be reserved exclusively for the judiciary, and one
should not assume that administrative officials have this authority unless they have been explicitly empowered by legislation.
a. If Parliament gives admin official the express power to interpret constitutionality of enabling legislation, that’s one thing.
But shouldn’t assume/imply this power (point 3)
b. Whenever there is a situation involving a challenge to enabling legislation, that is exclusively within jurisdiction of
Canadian superior courts, only judges can handle these issues
 Basically: No, shouldn’t ever assume that admin officials can deal with constitutional challenges UNLESS EXPRESS authority (WCB
can hear Charter challenges, for example)
o Charter so important that only judges should be assumed to have jurisdiction to do Charter challenges
LaForest J.:
1. Administrative agencies do not have any “freestanding” jurisdiction to engage in Charter review of enabling legislation by virtue
of s. 52;
a. Parliament determines authority of admin officials, and unless admin granted the power to challenge enabling legislation
cannot assume they have it
b. By virtue of s. 52, so don’t have access to the Charter review power
2. Administrative agencies only have authority to engage in Charter review of enabling legislation if the legislature has given them
express or implied power to determine questions of law;
3. In order to determine whether an administrative agency has implied authority to engage in Charter review, one should consider:
a. the composition and structure of the tribunal (any legally trained staff on the panel);
b. the procedure before the tribunal (simply a paper hearing or a full oral hearing before the panel);
c. the appeal route, if any, from tribunal decisions; and
d. the expertise of the tribunal.
e. Like Pezim and Southam: holistic and purposeful interpretation of legislation to see if agency has been given power to
interpret)
4. While there may be some practical advantages for giving administrative agencies the power to engage in Charter review, the
primary consideration remains whether the legislature intended to give this power to administrative officials.
 In the middle between Lamer and McLachlin: even though Charter is supreme law of Canada does not give admin officials the
right to interpret constitutionality of their enabling legislation BUT jurisdiction to apply the Charter to one’s enabling legislation
can arise expressly or implicitly through interpretation of legislative framework
McLachlin J. (dissenting):
1. The majority approach disregards the constitutional significance of s. 52 of the Charter, makes it more difficult for the HRC to
fulfill its function, and places additional burdens on victims of discrimination;
a. Making legal hurdles on litigants who contest things to Human Rights Board, means they need to get a lawyer, and most
of the time they are unrepresented
b. Limits section 52 by requiring implied or express permission to do Charter review of enabling legislation
2. Every administrative tribunal which has the duty to decide questions of law has the concomitant power to review enabling
legislation for Charter compliance unless the legislature expressly withholds that power;
3. “The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the
people. All law and law-makers that touch the people must conform to it.”
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a.
b.
Facts
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If Charter is meaningful to ordinary people, must be a part of tribunals
Anyone making decision with state power backing it has to be Charter compliant and decision has to be Charter
compliant
i. If concern over ability to do that, raise it on judicial review or appeal
Pilots forced to retire when they’re 65, argued discriminatory and unconstitutional
Need to get over a hurdle in Canadian Human Rights Code that allows this clause in a Collective Agreement
Can they raise this argument in front of Canadian Human Rights Commission?
SCC says no
CHRC does NOT have express authority for Charter challenge, and can’t find implied jurisdiction to hear these questions
HRC serves a screening function, determines which complaints go ahead, not used to sitting in adjudicative role. No full hearing
either
HRC do NOT have expertise on these sorts of issues, their expertise is limited to fact finding
But when you look at enabling legislation, says HRC is supposed to be fostering quasi-constitutional things like equality and
looking at other statutes to see if they are compliant with human rights
BUT, they do not have jurisdiction to consider the Charter compliance of their enabling legislation
Nova Scotia (Workers’ Compensation Board) v. Martin & Laseur
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SCC tried to speak with one voice here, unlike in Cooper
Constitutionality of Nova Scotia Workers’ Comp Act
SCC starts with section 52 (like McLachlin in Cooper) but uses La Forest’s framework from Cooper
o Does admin board have power to decide constitutionality of enabling legislation?
 It depends, see framework below
What was the Charter problem with the enabling legislation and regulations in this case?
 Martin and Laseur try to claim comp for chronic pain syndrome. Boards across Canada have been trying to wrestle with this
because people claiming comp for an injury that lasts longer than normal, pain they report seems to be disproportionate to
trauma initially suffered, and the medical profession can’t identify the pathological source of this pain
 Nova Scotia capped the amount recoverable for chronic pain
 M and L claim for chronic pain, told claim is limited to rehab program (4 week cap) and say: not fair. If I broke my arm I would
have gotten full amount (6 weeks). Not fair, offends s. 16 of the Charter
 Issues goes before SCC: Worker’s Comp Board tribunal has the authority to entertain this type of Charter challenge
 Reasoning: Base this authority not on express statutory provision that WCB can entertain charter challenges, but on holistic
reading of legislation saying that WCB is given authority generally over questions of law, which extends to questions of
constitutionality
o Courts need these issues adjudicated at the ground level because don’t have as in depth knowledge of how this
legislation is being applied on a daily basis, the context of the legislation
o If there’s a problem, it’ll be reviewed on correctness standard: judges don’t defer to these types of decisions. Judges
have fairly robust role in reviewing decisions like this
o Similar to what McLachln says, BUT adopts La Forest framework
 Admin officials only have authority to determine constitutionality of their enabling legislation if given express or
implied authority by legislature
 Does not rise directly by s. 52, need some provision in the legislation or some implied legislative intent to grant
that power
o That jurisdiction can be rebutted
Jurisdiction to Determine Constitutionality of Enabling Legislation (from above case)
(1) Does the admin tribunal have explicit or implicit jurisdiction to decide questions of law in relation to the impugned provision?
a) Explicit jurisdiction includes provisions which give the tribunal the power to determine questions of law (unusual);
b) Implicit jurisdiction may arise when considering the purpose, function, and capacity of the administrative tribunal (more
common)
(2) If the tribunal has jurisdiction to decide questions of law it will be presumed to include jurisdiction to determine the
constitutional validity of the impugned provision.
(3) The party alleging lack of jurisdiction may rebut the presumption by
a) Asserting explicit withdrawal of authority to consider the Charter; or
b) Asserting that a holistic interpretation of the enabling legislation “clearly leads to the conclusion that the legislature
intended to exclude the Charter …from the scope of the questions of law to be addressed by the tribunal.”
Exam:
 Can I raise a Charter challenge to enabling legislation of WCA?
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Explore the issue of Charter objection: legislation violates section 15 of the Charter, section 7 of the Charter, violates freedom of
speech, etc.
Does tribunal have explicit or implicit jurisdiction to consider questions of law?
o Sometimes explicit jurisdiction, sometimes conclude that power by reading statute as a whole
If conclude that tribunal has power to consider question of law, assume they can consider Charter challenge
UNLESS: rebutted explicitly in legislation OR explicitly by reading legislation as a whole
Example of Rebuttal:
Administrative Procedures and Jurisdiction Act
s. 11
Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a
regulation made under section 16 has conferred jurisdiction on that decision maker to do so.
Bring Administrative Procedures and Jurisdiction Regulations to exam!!!!
APJA Regulations
All questions of constitutional law: Alberta Labour Relations Board, Alberta Energy and Utilities Board, Law Society, labour arbitrators,
Alberta Securities Commission, Alberta Utilities Commission, Energy Resources Conservation Board.
Division of powers issues: Alberta Human Rights Tribunal, Workers’ Compensation Board.
R v Conway
How did Conway change the law concerning whether administrative agencies have the power to grant remedies under s. 24(1) of the
Charter?
 In Conway, tried to make law relating to Charter remedies consistent with law relating to Charter challenges of enabling
legislation
 Facts: person committed to mental health facility, found NCR by reason of mental illness
o Raising for years a number of complaints regarding his treatment at facility and way in which review board has been
determining whether he can be released
o Brings argument saying that institution treatment of him and province’s continued treatment of him violate a number of
his Charter rights
o Asks for: absolute discharge
 Asking for extraordinary remedy from review board: declare his continued detention to be a violation of his
Charter rights and he must be released immediately
 Court applies same framework from M and L: whether admin board given explicit or implicit powers to determine questions of
law to grant charter remedies
 Held: Parliament could not have intended to grant this type of remedial power to review board
o Power to release someone, even though they constitute a threat to the public
 Dominant purpose of review board is to ensure public safety. Would be inconsistent for Legislature to give the
power to release somebody who they think is a continuing threat to public safety
 When read enabling legislation in Conway, read that main purpose of review board is to ensure no
dangerous people get out of hospital. They thought this amounted to a removal of the authority to
grant an absolute discharge
Doré v Barreau du Quebec
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Lawyer sends nasty letter to judge
Raises defence of freedom of speech
o Shouldn’t be punished for this, criticizing bench is important thing. Didn’t do it in public, sent a private letter (gave him
more courtesy than he gave me)
Law Society finds him guilty of unprofessional conduct, suspends him for 1 month
Dore challenges decision on ground that it disregarded his right to freedom of speech, didn’t demonstrate adequate regard to
value of freedom of speech
Law Society:
o Give up some right to freedom of speech by privilege of joining legal profession. Can’t say certain things in open court,
that’s professional misconduct
o Law Society has expertise in matching statutory objectives and Charter values
o Different issue than M and L or Conway
 Not arguing that Law Society of Quebec Provisions are unconstitutional
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Arguing that admin decision that found him guilty was unreasonable because it failed to demonstrate regard to
his Charter rights
Discipline Committee: we understand you have a freedom of speech argument, but we think that lawyers, by joining the
profession, have agreed voluntarily to modify their behaviour to uphold the admin of justice. By being a member of legal
profession, lawyers give up some freedom of speech
o On judicial review, courts applied different standards of review
 One court applied correctness, another used Oakes (because it’s a Charter question)
 SCC tried to simplify it: these types of decisions that involve Charter values should be given some degree of
deference. The standard of review should be reasonableness
 Admin officials applying these policies have a degree of expertise and specialization that deserve
judicial respect
o In this case, involves a self-regulating professional body, that body’s expertise relates to
interpreting ethical standards for the legal profession
Judicial Deference and Charter values
o Any public official exercising delegated power “does not have the power to make an order that would result in an
infringement of the Charter.” Slaight Communications v Davidson, [1989] 1 SCR 1038 at 1078.
o Baker says that administrative authority “must be exercised in accordance with the boundaries imposed in the statute,
the principles of the rule of law (like fairness), the principles of administrative law, the fundamental values of Canadian
society, and the principles of the Charter.” Baker v Canada (Minister of Citizenship and Immigration, [1999] 2 SCR 817,
para 56.
Big Question = Should judges defer to administrative decisions that involve Charter values?
Answer = Yes.
When admin official considers Charter values like freedom of speech, judges should exercise some restraint
“administrative decisions are always required to consider fundamental values.” [para. 35]
o Reasons of admin decision MUST consider fundamental values of Charter
“When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of
facts. Dunsmuir tells us this should attract deference….” [para 36]
o Fact specific, context matters. Therefore, Charter values like this are mixed question of law and fact, not simply
dealing with abstract formulations, applying them to case before you
“An administrative decision-maker exercising a discretionary power under his or her home statute has, by virtue of expertise and
specialization, particular familiarity with the competing considerations at play in weighing Charter values.”
o Fact that law society has heard evidence first hand, has a lot of experience in determining whether conduct was
unprofessional, gives them power to even interpret Charter values in this context
Dunsmuir: must give reasons, reasons must be intelligible, justification being offered seems adequate in light of relevant law.
Baker: reasons must show official was alert, alive, and sensitive to relevant sources of law. These considerations apply to Charter
values as well.
o Someone raises Charter argument but not challenging enabling legislation (M and L) but saying decision infringes Charter
value (can’t practice law for a month, this infringes my freedom of speech), decision should be transparent, intelligible,
demonstrate alert, alive, and sensitive to fact my freedom of speech is engaged
o Doesn’t mean judge has to agree with how balancing is done, just that reasons are adequate
Abella sets this standard in Dore: reason should show there was a sincere attempt to balance statutory objectives, like
maintaining the integrity/reputation of admin of justice in Law Society Regulation with Charter values like freedom of speech, and
this attempt to balance should be proportionate
Bottom line: “the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of
the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at
play.” [para. 57]
o When dealing with admin decision attempting to balance statutory objectives with Charter values, assess whether
decision reflects proportion
 Was it minimally impairing?
 Dore may not have been minimally impairing
 Letter sent privately to judge (judge also disciplined) and had salary taken away for one month…pretty
harsh penalty
Reasonableness Review and the Charter
How to determine whether an administrative decision dealing with Charter values is “reasonable”?
(1) The decision should outline an attempt to balance Charter values with statutory objectives. [para 55]
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(2) The decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at
the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the
Charter protection with the statutory objectives.” [para. 56]
Bottom line: “the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the
decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.” [para.
57]
What is the appropriate standard of review when an administrative decision involves an analysis of Charter
values?
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Recent SCC case says reasonableness (Dore v Barreau du Quebec, SCC 2012)
o Instead of correctness, or the traditional Oakes proportionality test
o But, the same basic considerations inform both standards of review (statutory objectives, balance, and proportionality)
o Signals that administrative decision makers are entitled to a degree of deference, even where the decisions involve
constitutional issues
Combining this with Dunsmuir we get:
o Admin decisions re: constitutionality of enabling legislation: correctness (Dunsmuir)
o Discretionary admin decisions re: Charter values: reasonableness (Dore)
Another view: Dore is part of a more general trend about giving administrative tribunals more constitutional power
o Cooper  Martin & Laseur  Conway  Dore
Administrative law and the Charter
Issue #1 = Do administrative decision-makers have the legal authority to determine whether their enabling legislation infringes Charter
rights? (Cooper, Martin & Laseur, s 11 of the APJA and regulations)
 It depends.
 If the legislature has expressly or implicitly delegated jurisdiction over questions of law, then the presumption is that the
decision-maker also has jurisdiction to consider whether provisions in the enabling legislation comply with the Charter.
 This presumption may be rebutted by an express legislative provision which removes this power, or by “clear” implication. (See s
11 of APJA)
Issue #2 = Do administrative decision-makers have the authority to grant Charter remedies? (Conway)
It depends.
 If the legislature has expressly or implicitly delegated jurisdiction over questions of law, then the presumption is that the
decision-maker also has the jurisdiction to grant Charter remedies under s 24(1).
 This presumption may be rebutted by an express legislative provision which removes this power, or by “clear” implication.
Issue #3 = Should judges defer to administrative decisions involving Charter values? (Doré)
 Yes.
 “administrative decisions are always required to consider fundamental values.” [para. 35]
 “When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of
facts. Dunsmuir tells us this should attract deference….” [para 36]
o Context matters. These regulatory bodies and admin officials are on the front lines. They have insight into how to strike
balance between Charter and the statutory objectives of the Admin body
 “An administrative decision-maker exercising a discretionary power under his or her home statute has, by virtue of expertise and
specialization, particular familiarity with the competing considerations at play in weighing Charter values”.
Remedies
Assuming that there are cogent procedural or substantive grounds for challenging an administrative decision, how should those defects be
remedied?
1. Request a reconsideration of the case;
a. Ask the tribunal to reconsider
b. Low cost
2. Lobbying for legislative change or legitimate executive intervention;
a. Low cost
3. Refer the matter to an independent ombudsman;
a. Ombudsman: independent of government, role is to investigate allegations of wrongdoing and make recommendations
on how to remedy it
b. Low cost – cost of investigating and coming up with a remedy is on Ombudsman
4. Statutory right of appeal to appellate tribunal or court;
a. Getting more costly
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5.
b. But must use this right of appeal to appellate tribunal first before going to superior court for judicial review
Application for judicial review;
a. Appropriate if there is no statutory right of appeal
Practical considerations for clients in selecting the best method:
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Some methods of challenging an administrative decision are more expensive than others
Consider which appellate tribunal or court has jurisdiction over the case and what the legal grounds of your appeal/application
for judicial review are:
o If there is a statutory right of appeal, have to exhaust appeal rights before seeking judicial review
 Otherwise, there may be a jurisdictional question
o Consider which court to apply to for judicial review
o Sometimes appeal to Court of QB, sometimes it’s to an appellate tribunal. Must be familiar with enabling legislation.
Don’t show up in the wrong place (like going to QB instead of Worker’s Compensation Tribunal)
Even if you succeed, an award of court costs is rare
o Exception: if you can show that the other side was stone-walling, acting inappropriately in the conduct of the case in
some manner
The usual remedy for most defects is to quash the decision and remit it back to the original decision-maker for another
determination
o Doesn’t necessarily mean that the exercise is futile – but it is a consideration
o Even if you are successful, the original decision maker may still come up with the same conclusion (as long as they are
acting procedurally fairly or substantively rationally)
If your client appears before an administrative tribunal frequently, may have to weigh political factors regarding the continuing
relationship with that agency
o May wish to try informal channels first, as judicial review may ruffle feathers
o May want to avoid racketing up the rhetoric, unless justified by inappropriate behaviour
Historical Overview of Administrative Remedies
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Remedies originate in the various prerogative writs by which the monarch controlled the exercise of authority by officials who
acted on behalf of the King
o Prerogatives were vehicles for ensuring that the administrative arms of government were kept under control
o System was aimed at control of public, not private bodies
o Originally a matter of executive prerogative, but issued through the Court of Queen’s Bench
o Courts started using this power to supervise the King’s own officials, which set up a battle between the Court of Queen’s
Bench and the King
o Though the parties are different today, the exercise and the writs are the same
Superior court judges have access to ancient common law remedies used to be known as prerogative relief or prerogative writs:
o Certiorari – remedy used to quash, nullify, or set aside an admin decision
o Prohibition – remedy used to order tribunal not to proceed with a matter
o Mandamus – remedy used to compel an admin official to perform a duty
o Habeas Corpus – remedy used to compel an administrative official to justify a person’s detention or imprisonment
The problems with the historical approach:
o Problem 1 - Common law relating to prerogative relief was both highly technical and ultimately discretionary
 Solution: litigants began exploring other forms of relief, equitable forms, associated with private law remedies,
especially applications for “declaratory” relief
o Problem 2 - Sometimes government would contract out public functions in order to devolve cost and escape judicial
review. Like privatizing prisons in the US
 Solution: courts began extending judicial review to private bodies that exercise “public” functions through
prerogative and declaratory relief
Alberta Rules of Court – for decisions made by provincial bodies
3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant
seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to
judicial review:
(a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus;
(b) a declaration or injunction.
(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and
served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.
 Limitation period = 6 months!
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3.16(1) An originating application for an order in the nature of habeas corpus may be filed at any time and must be served under rule
3.15(3) as soon as practicable after filing.
3.18(1) An originating applicant for judicial review who seeks an order to set aside a decision or act must include with the originating
application a notice in Form 8, addressed to the person or body who made or possesses the record of proceedings on which the decision
or act sought to be set aside is based, to send the record of proceedings to the court clerk named in the notice.
 (2) The notice must require the following to be sent or an explanation to be provided of why an item cannot be sent:
o (a) the written record, if any, of the decision or act that is the subject of the originating application for judicial review,
o (b) the reasons given for the decision or act, if any,
o (c) the document which started the proceeding,
o (d) the evidence and exhibits filed with the person or body, if any, and
o (e) anything else relevant to the decision or act in the possession of the person or body.
 (3) The Court may add to, dispense with or vary anything required to be sent to the court clerk under this rule.
3.24(1) If an originating applicant is entitled to a declaration that a decision or act of a person or body is unauthorized or invalid, the
Court may, instead of making a declaration, set aside the decision or act.
 (2) The Court may
o (a) direct a person or body to reconsider the whole or any part of a matter,
o (b) direct a person or body to reconsider the whole or any part of a decision if the Court has set aside the decision under
subrule (1), and
o (c) give any other directions it considers necessary.
 (3) If the sole ground for a remedy is a defect in form or a technical irregularity, the Court may, if the Court finds that no
substantial wrong or miscarriage of justice has occurred, despite the defect,
o (a) refuse a remedy, or
o (b) validate the decision made to have effect from a date and subject to any terms and conditions that the Court
considers appropriate.
Federal Courts Act – for federal admin bodies, like Immigration Board. Don’t use provincial rules of court, bring application in Federal
Court so must use Federal Courts Act
 Again, don’t show up in wrong court. If it is a deportation order, go to Federal Court, not QB
 2(1) … “federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting
to exercise jurisdiction or powers conferred by or under an Act of Parliament by or under an order made pursuant to a
prerogative of the Crown….
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18(1) …the Federal Court has exclusive original jurisdiction:
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph
(a)….
18.1(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the
matter in respect of which relief is sought.
o (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal
shall be made within thirty days after the time the decision or order was first communicated by the federal board,
commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected
thereby, or within such further time as a judge of the Federal Court may, either before or after the expiration of those
thirty days, fix or allow.
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Limitation period = 30 days
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18.1(3) On an application for judicial review, the Federal Court may
o (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or
has unreasonably delayed in doing; or
o (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such
directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board,
commission or other tribunal.
18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission, or other
tribunal
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o
o
o
o
o
o
(a) acted without 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…
(d) based its decision or order on an erroneous finding of fact…
(e) acted, or failed to act, by reason of fraud or perjured evidence….
(f) acted in any other way that was contrary to law.
Volker Stevin NWT v Northwest Territories (Commissioner) (NWTCA, 1994)
Government in the conduct of business
Facts: Advisory Committee of civil servants and business reps was established under a directive of a policy document of the NWT
government. The Committee’s purpose was to designate businesses as “northern businesses”, thus making them eligible for various
government incentives. The Committee revoked the applicant’s designation, and the applicant applied for an order to quash the decision.
The chambers judge dismissed, holding that decisions of the Committee were not subject to judicial review – judicial review is available
only to review the exercise of statutory authority and this was not an exercise of statutory authority but government procurement of
goods and services (a commercial decision).
 Volker Stevin was removed from northern businesses list, delisted. Depends on government contracts for work
 Wanted Certiorari to quash order removing him from list
 First court held that certiorari wasn’t available, as government contracting is governed by private law, not public law remedies
o But for Volker: don’t have a contract so can’t use breach of contract. It’s a government privilege to be on that list
o So they appealed
 CA finds in their favour: not just government exercising its government contract power, this is counsel advising the government
and therefore it’s subject to the principles of admin law
Issues: Is judicial review ever available to review (Essentially what is the nature of the function or role of business advisory committee)?
Held: Yes.
Reasoning:
 Chambers judge emphasizes that government should have freedom to contract – this is setting up a committee advising the
government on how to exercise its freedom of contract, which is beyond the scope of judicial review and courts should not be
interfering
 But CA finds more convincing public interest element to this decision
o Judicial review is available to review both decisions of public bodies exercising statutory duties and of administrative
bodies which obtain their authority from prerogative powers
 Their decisions affect the rights of others who come under their discretion.
o The committees business incentive policy and authority exercised by virtue of the policy go beyond mere decisions by
civil servants regarding procurement of goods and services
 Advisory committee is a public body exercising power which effects the status of business enterprises and their
ability to compete effectively in NWT
 Decisions affect right of business to contract with government of NWT and organizations funded by it
o Decisions of admin bodies are reviewable on certiorari if analysis of their functions disclose a duty of PF
 Purely commercial decisions relating to the procurement by government of goods and services generally do
not fall under the class of cases which will be subject to judicial review (there should be freedom of contract),
 But the decisions here go beyond this not a simple acceptance or rejection of a specific tender or bid
 The decision affects the ability of the business to compete with others in contracting with the
government, and affects the availability of financial assistance through government departments.
 The function is characterized as a matter that affects the public interest, and is an exercise of public
power, so it should be subject to administrative law principles and the decision should be made in
accordance with procedural fairness and substantive reasonableness.
 Ratio: decisions of admin bodies are reviewable on certiorari if an analysis of their functions discloses a duty of PF; purely
commercial decisions are generally not reviewable.
 Commentary: adhoc council created by executive branch to advise it on who should be able to bid on gov contracts: Does admin
law or private contract law apply? Court here says this is a public body exercising a public function with important consequences
for the public so PF should apply.
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