Reaching the Threshold  assessing the Content of the Duty of Fairness
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Very first threshold question  is there a public decision maker who has made a decision that has affected someone in some way
o If not then need go no further because admin law does not apply to private actors
o Pretty stupid question though because this is admin law exam
If there is a relationship existing between the decision maker and the affected party it will be necessary to assess the relationship
o Where there is no relationship then you can just use the one-line threshold statement from Cardinal
 Duty of fairness applies to all decisions where a persons rights, interests or privileges are affected
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Getting to Fairness  the Process
Three to Five factors in assessing the threshold of the Duty of Fairness
The Nature of the Decision
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Factors to be considered
o Do not need to distinguish between judicial, quasi-judicial and administrative (Knight)
o Not all administrative bodies are under a duty to act fairly (Knight)
o A preliminary decision will not generally trigger the duty, a final decision will (Knight)
o How serious is the decision, are the consequences of the decision (Suresh)
Relevant cases for applicant
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Relevant cases for opposing party
Statutory Scheme
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Relevant considerations would include such factors as:
o Is there a right of appeal from the decision  if not there is a greater need for fairness (Baker)
 Can also look to see if other sections of the same Act have appeal procedures, if they do then there will be a
need for greater fairness in respect of the provision under attack (Suresh)
o Does the decision making body determine the rights of an individual
o Is the decision determinative  is so then there is a greater need for fairness (Baker)
Relevant cases for the applicant
Relevant cases for the opposing party
Importance of the decision to the individual
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What factors (from the facts provided) would indicate that this particular decision was or was not important to the individual
Which cases support each of these positions
o The more important the decision and the greater its impact the greater the necessary protections (Baker)
o There is a right to procedural fairness only if the decision is a significant one and has an important impact on the
individual (Knight)
o The greater the effect on the life of the individual by the decision the greater the need for protections (Suresh)
Legitimate Expectations
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Is there a legitimate expectation in this particular circumstance  would need to flow from the facts
o General doctrine:
 This expectation may arise out of a representation that one will be given a hearing or out of the past
practices or a combination of the two
o There is no such thing as a legitimate expectation as to the outcome of the hearing itself just that one may have an
expectation as to the actual hearing taking place
o Legitimate expectation does not give substantive rights, only procedural rights
o Cannot have a legitimate expectation as to a particular outcome
Cases in support of legitimate expectations
o If the claimant has a legitimate expectation of a certain result then they are deserving of greater protections (Baker)
i
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Are there criteria laid out in the statute that indicate that once a person has attained them they may be admitted to a
profession or calling  if so that may give rise to a legitimate expectation (Hutfield)
Where the party has been led to believe that they will have an opportunity to be heard before their rights will be affected
then they have recourse available (Old St. Boniface (SCC))
Legitimate expectations may be regarded as an extension of the rules of natural justice and procedural fairness which
may afford a party affected by the decision of a public official an opportunity to make representations in circumstances
in which there otherwise would be no such opportunity (Old St. Boniface (SCC))
Doctrine of legitimate expectations looks to the conduct of the public authority in the exercise of its power including
established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified (Mount
Sinai Hospital)
The doctrine of legitimate expectations is limited to procedural relief  even though it may be difficult in some cases to
distinguish the procedural from the substantive (Mount Sinai Hospital)
The doctrine of legitimate expectation is "an extension of the rules of natural justice and procedural fairness (CAP)
The doctrine of legitimate expectations informs the duty of procedural fairness; it gives no substantive rights (Black)
No Canadian citizen can claim a legitimate expectation of receiving an honour (Black)
In my view, with respect, the conditions precedent to the application of the doctrine are not established in this case. The
evidence of past practice is equivocal, and as a result the evidence of a promise to "return to" past practice is also
equivocal (CUPE v MOL)
The fact that the school consulted with parents in 1989 raised the expectation that in the future they would be consulted,
the failure to do so was a violation of procedural fairness (Furey)
Choice of Procedures
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What procedures were chosen by the agency/decision maker in this particular instance
o This is particularly important where the legislature has left it to the decision maker to choose its own procedures or when
the agency has expertise (Baker)
Should any deference be given to the agency/decision maker in relation to their choice of procedure in this instance
Minister is free under the statute to choose procedures in making this decision  favours discretion (Suresh)
The need for deference must be offset by the need to ensure sufficient procedural protections for those who may face significant
consequences (such as torture) (Suresh)
Delegation is not per se problematic, just depends on whether there is the authorization in the statute to do it and depends on what
is being delegated (Vine)
Consultation among Agency Members
Will depend upon the purpose of the consultations (Consolidated Bathurst, Tremblay)
Will depend upon the process for the consultations
o Is it the ultimate decision makers who have the power to call/not call the meeting (Consolidated Bathurst, Tremblay)
 Because must abide by the rule that “those who hear must decide”
I am unable to agree with the proposition that any discussion with a person who has not heard the evidence necessarily vitiates
the resulting decision because this discussion might "influence" the decision maker (Consolidated Bathurst)
The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern
administrative tribunals as well as the risks inherent in such a practice (Consolidated Bathurst)
Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision
makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them
and a denial of the choice expressly made by the legislature (Tremblay)
If the quorum has the advantage of the experience and opinions of its colleagues it may be in a position to render a more
thoughtful decision. However, it is the quorum, and only the quorum, which has the responsibility of rendering the decision. If
it does not wish to consult, it must be truly free not to do so (Tremblay)
The case reveals a tension between the fairness of the process and the principle of deliberative secrecy (Ellis-Don)
Deliberative secrecy also favours administrative consistency by granting protection to a consultative process that involves
interaction between the adjudicators who have heard the case and the members who have not, within the rules set down in
Consolidated-Bathurst (Ellis-Don)
Satisfying those requirements of consistency and independence comes undoubtedly at a price, this price being that the process
becomes less open and that litigants face tough hurdles when attempting to build the evidentiary foundation for a successful
challenge based on alleged breaches of natural justice (Ellis-Don)
The Essence of Fairness – Some Quotes from Cases
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The obligation to act fairly perhaps lacks precise definition and doubtless it involves something less than the strict application
of the rules of natural justice but it may in some circumstances involve the application of some or all of those rules (Abel)
ii
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If the rules of natural justice may apply notwithstanding that the proceeding will result in a recommendation only, I can think
of no case where those rules should be more readily applied than the case at bar (Abel) – was an issue about disclosure of
reports about a patient confined to a psychiatric institution under warrant of the lieutenant governor when found not guilty by
reason of mental insanity
A party must have an adequate opportunity of knowing the case he has to meet, of answering it and of putting his own case
(Abel)
Individual should have the opportunity to fairly and fully represent their case to the decision maker (Baker)
What lies behind this fairness is the idea that it is difficult to determine when exactly a decision is judicial, quasi-judicial, or
administrative (Nicholson)
There is an emerging consensus that in non judicial decision making there is a duty to act fairly (Nicholson)
The fact that a decision maker does not have a duty to act judicially does not mean that there may not be a duty to act fairly
(Martineau)
The content of the principles of natural justice and fairness will vary on a case by case basis (Martineau)
The simple question is whether the decision maker acted fairly in making its decision (Martineau)
There is a general common law principle that a duty of procedural fairness exists for every public authority making an
administrative decision which is not of a legislative nature and which affects the rights, privileges, or interests of an individual
(Cardinal)
Denial of a right to a fair hearing will always render a decision invalid  because the right to a fair hearing is an independent
right that exists outside of the circumstances of the particular case (Cardinal)
The concept of procedural fairness is variable depending upon the circumstances involved (Knight)
Duty of fairness applies to any situation in which a public body acts in a way that limits or takes away the rights of an
individual (Homex)
Generally the rules of natural justice are not applicable to legislative or policy decisions (Regulated Importers)
Rights vs. Privileges
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So long as the person adversely affected is advised of the case against him and is permitted to give an answer through the
servants or agents of the investigating body, that is sufficient, unless there is evidence of improper bias on the part of the
servant or agent or evidence that the answer, if made, did not reach the body making the decision or determination. (Webb)
A distinction in kind between the scope of judicial review and the expected standards of procedural fairness in the case of the
modification or extinguishment of existing rights and interests, and the scope of judicial review and the expected standards of
procedural fairness in the case of an application for a permission or consent not previously enjoyed, is a distinction that is not
founded in principle (Hutfield)
Such a body, if its decision will modify, extinguish or affect a right or interest of a person when that person's rights or
interests are being considered and decided upon in a way that is in law or for practical purposes final or final subject to
appeal, must adhere to procedural standards the precise nature of which will depend upon the nature and extent of the right or
interest. (Hutfield)
A failure on the part of the adjudicating body to attain the procedural standards that are appropriate to the particular situation
will attract quashing of the decision by the remedy of certiorari and, if though necessary or desirable, the remedy of
mandamus in aid (Hutfield)
The Committee and the Minister have an obligation to act fairly in carrying out their duties in the sense that decisions cannot
be made arbitrarily and they must make an effort to treat equivalent cases in equivalent fashion. (Singh – Wilson)
o I do not think, however, that the courts can import into the duty of fairness procedural constraints on the Committee's
operation which are incompatible with the decision-making scheme set up by Parliament (Singh – Wilson)
Determination of Fairness
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Once these factors have each been looked at and weighed – determined whether they agitate in favour of or against fairness – they
all need to be amalgamated to determine what level of fairness the overall process dictates
o This is largely a subjective exercise supported by the objective arguments put forward under each of the five criteria
 So long as the arguments are supportable it should be okay
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In emergencies it is not necessary to have a hearing before a right is taken away  but in most emergencies there is an
opportunity for a hearing after the right has been taken away to determine whether or not it should be restored
A purely ministerial decision, on broad grounds of public policy will typically afford no procedural protection  any attack on it
will have to be made upon the basis of abuse of discretion
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After determining the level of fairness that is due to the applicant then it lies to determine whether the duty of fairness was
fulfilled in the particular case
o At this point one important consideration is the language of the enabling statute
iii
o
If the enabling statute states that a hearing is to be provided that generally will trigger the SPPA
 Under the SPPA a hearing is taken to mean an oral hearing
 Although with the amendments it can now be an electronic or other hearing
So we have Fairness – Now What – What Does that Entail
SPPA applies
Disclosure applies
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Cases supporting this contention
R. v. Stinchcombe also recognized that the "fruits of the investigation" in the possession of the Crown "are not the property of
the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done" (at p. 7).
We are of the opinion that this point applies with equal force to the proceedings before a board of inquiry and that the fruits of
the investigations are not the property of the commission (Ontario (HRC) v. Ontario)
o We are also of the opinion, while not necessary to our decision, that the role of commission counsel is analogous to that
of the Crown in criminal proceedings (Ontario (HRC) v. Ontario)
the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to
criminal proceedings (CIBA-Geigy)
Cross-examination of witnesses
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Cases in support of this
Right to counsel
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Cases in support of this
SPPA does not apply
Is there a right to a hearing?
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Is the Charter involved in some way
o Singh – Wilson
o It is possible that an oral hearing before the decision-maker is not required in every case in which s. 7 of the Charter
is called into play.
o Written submissions may be an adequate substitute for an oral hearing in appropriate circumstances
o Where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the
basis of an oral hearing
 Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility
are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of
hearing the testimony of witnesses in person
o However the s.7 right to a fair hearing may be limited under a s.1 justification
Is the Bill of Rights involved in some way  only applies if it is a federal decision making body
o Singh – Beetz – s.2(e)
o Have under s. 2(e) of the Canadian Bill of Rights, the right to a fair hearing in accordance with the principles of
fundamental justice
Other cases support a hearing where credibility is an issue (Khan)
o first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility was a
critical issue on her appeal. By an oral hearing, I mean a hearing in which she had an opportunity to appear in
person before the Committee and an opportunity to make oral representations to it (Khan)
For the applicant's benefit, however, it must be emphasized again that the Premier was not conducting a trial. Clearly, an
adversary trial is much more likely to produce "truth" and the perception of "fairness" than a mere investigation. (Masters)
o It should, therefore, be understood that the allegations made against the applicant were never adjudicated. The
investigatory process deployed to inquire into his alleged conduct, by its very nature, did not afford him all the
safeguards of a trial and Nicholson and Knight do not require otherwise. To hold that they do would be to transform the
nature of the discretion at issue. (Masters)
Natural justice may or may not require an oral hearing; so long as the person concerned be given a fair opportunity to be
heard  The consequences of the application of this basic requirement vary, however, with the circumstances (Gallant)
iv
Disclosure may still apply but need to find source in common law
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Decisions to disclose materials – when weighing competing considerations – must be made in consideration of the rules of
natural justice (must act fairly) (Abel – see above under the Essence of Fairness)
o Because in that case, although the court that fairness was not abided by it remitted the matter back for reconsideration, it
did not order production of the materials requested
Must be made aware of the facts raised by the president and given a real and effective opportunity to correct or meet any
adverse statement made (Kane)
The rules of natural justice apply to the hearings before the boards of review and the commissioners sitting on appeal, and
that therefore the file contents must be disclosed (Re Napoli)
What is required is enough disclosure to enable the applicant to properly answer the case against him (Gough)
Agency only has to disclose the information if it seeks to rely on it  if it does not need to rely on the information then it does
not have to disclose it (Gough)
Confidential Information
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The obvious first step in the ordinary case would seem to be that the evidence be taken in camera. What further steps require
to be taken would depend on the circumstances. The most extreme step that might be required would be, we should have
thought, to exclude all competitors or rivals while the evidence is being taken and to provide such parties afterwards with the
sort of report of the evidence taken in their absence that is contemplated for the parties with reference to confidential evidence
taken under section 28 (Magnasonic)
Staff Studies
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Participants in administrative processes argue that they should have access to these reports for two reasons
o The information may assist them in preparing their submissions
o Confidence is undermined when staff submissions are not open to the public
Where it can be shown that the decision was based on staff reports which the parties have not had access to containing
evidentiary material to which the parties have not had an opportunity to respond it may well be possible to make out a case for
requiring that they be included in the case for review (Trans Quebec – Page 33)
As an attempt to establish the Board’s reasons for decisions the staff reports are irrelevant (Trans Quebec – Page 33)
Most of the information is of a general nature and mostly well known and most of the information became public through the
course of the hearing so the breach of natural justice, at the most, was technical (Toshiba – Page 33)
One concern with staff reports is that often staff members are experts in the field and they may have significant persuasive powers
 they may be more expert than the decision maker and what role do they ultimately play in the decision that is taken. This is no
problem where staff has no input but when they start having input then questions start arising over the role they play in the
process and what influence they have on the outcome
Law reform commission of Canada recommended that  agencies should, in appropriate cases, release and distribute information
at their disposal, including research papers prepared by individual staff members which outline issues and disclose relevant
information not elsewhere disclosed in documentation available to participants but agency documents should not attribute to the
staff as a whole any official position taken with respect to any issues raised
Cross-examination of witnesses
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Cross-examination is one of the most effective ways to test the other side’s story and to get at the heart of an issue
It can be one of the central tenets of natural justice
The right to cross-examine while of principal importance to our judicial system is not an absolute right. (Armstrong)
Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose upon a board their procedures
and technical rules of evidence. (Armstrong)
Identity of Sources of Information
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In sanction or punishment cases fairness dictates that the person charged be given all available particulars of the offence. But not
in a decision to transfer made for the orderly and proper administration of the institution based on a belief that the inmate should,
because of behaviour concerns, not remain where he is. (Gallant)
Right to counsel
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Must consider the following factors (New Brunswick v G. (J.))
o The seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant
o The enactment of s. 7 has not created any absolute right to counsel in all such proceedings. (Howard v. Stony Mtn)
v
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The refusal of the appelant’s request for counsel was a refusal of the opportunity to which he was entitled to adequately
present his case and that prohibition should have issued (Howard v. Stony Mtn)
The complexity of the hearing can vary dramatically from case to case. Some hearings may be very short, involve relatively
simple questions of fact and credibility, and have no expert reports. Others might take days and involve complicated evidentiary
questions, troublesome points of law, and multiple experts. (New Brunswick v G. (J.))
Notice
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The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to
participate and to prepare
The length of time will depend on the nature of the interests and the issues
The notice must also give enough information about the issues to enable the party to prepare to respond
Cases
o Torchinsky – page 24, Nymal – page 24, Krever – page 24
The question, therefore, is whether these circumstances were sufficient to relieve the appellant from the obligation to give a
more detailed notice. In my view, they were. Parliament cannot have intended, when it gave the Commissioner and his
delegates the power to transfer inmates from one penitentiary to another, that they should be bound by the rules of procedural
fairness even when the application of those rules would endanger the lives of other inmates. (Gallant)
In the Demaria case, the failure to give proper notice to the inmate was not justified by any valid reason. That is not the
situation here (Gallant)
Official Notice  akin to judicial notice
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The cardinal distinction which more than any other governs the use of extra-record facts by courts and agencies is the distinction
between legislative facts and adjudicative facts
When a court or agency finds facts concerning the immediate parties – who did what, when, where, how, and with what motive or
intent – the court or agency is performing an adjudicative function
o These facts are called adjudicative facts
When a court or agency develops law or policy it is acting legislatively  the courts have created the common law through
judicial legislation and the facts which inform the tribunal’s legislative judgments are called legislative facts
Adjudicative facts  facts to which the law is applied in the process of adjudication
Legislative facts  facts which help the tribunal determine the content of law and of policy and help the tribunal to exercise its
judgment or discretion in determining what course of action to take
Legislative facts are usually general and do not concern the immediate parties
In most cases the legislative facts are either absent or unimportant because the law and policy have been previously established
o But that is not always the case
The practical difference between adjudicative and legislative facts is that adjudicative facts must be supported by the evidence
whereas legislative facts either need not, nor in some cases cannot be supported by the evidence
The two major considerations in developing a system of judicial notice are fairness and convenience
o The essential problem is to accommodate one with the other in such a way that neither will be unduly sacrificed
The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that
convenience should always yield to the requirement of procedural fairness that parties should have opportunity to meet in the
appropriate fashion all facts that influence the disposition of the case
Reasons
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Both the SPPA and equivalent Alberta legislation require reasons
The Supreme Court, in Baker, stated that it would be the importance of the interest at stake that would trigger the reasons
requirement in the exercise of statutory or prerogative powers
 One threshold seems to be the statutory right of appeal
 The tendency of the courts, since Baker, has been to require reasons
What will satisfy the duty to give reasons?
 Are the reasons sufficient to enable the court to effectively scrutinize the decision
 Balanced against this is the consideration that to require unduly elaborate reasons would likely put an unjustifiable burden on the
tribunal
 The balance is going to be value of the reasons vs. the cost of providing the reasons
 If the decision involved an exercise of discretion the reasons should demonstrate that the tribunal recognized that it had a power to
choose and the factors that it considered in making its choice
 Where credibility is an issue a tribunal may not have to expound to any great extent on credibility
Effect of Breach of Duty to Give Reasons
vi
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If it is apparent from the reasons that the decision maker misinterpreted the legislation or committed some other error of law the
decision may be set aside
If an agency is required to give reasons and fails to do so a court may require them to do so through mandamus
Generally if there is a duty to provide reasons, and none are given, the court will remit the matter back to the tribunal for reasons
or they may reverse the decision altogether
Where there are numerous reasons – some good, some bad – the court could opt to reject the bad reasons, but that is not likely to
happen and rather the court is not likely to speculate as to how the tribunal would have decided the dispute if it had realized that it
could not rely in law on all of the reasons given
Summary of Materials on Reasons
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The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the
decision maker on the relevant factors and evidence (Via Rail)
Reasons also provide the parties with the assurance that their representations have been considered (Via Rail)
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a
basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine
whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when
the decision is subject to a deferential standard of review. (Via Rail)
I conclude, therefore, that the Agency erred in law by failing to provide adequate reasons for its decision that the tariff was an
obstacle. Its reasons did not provide sufficient insight into the reasoning process followed. Moreover, they were not sufficiently
clear with respect to the conclusion that is in issue (Via Rail)
In summary, the Agency failed to provide sufficient insight into the reasoning process that it followed or the factors that it
considered in determining that any obstacle provided by the tariff was undue. In so doing, it erred in law. (Via Rail)
Standard of Review
Some General Points
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Where there is an appeal on a general question  as is seen in some of the refugee cases (Pushpanathan, Baker)
o The certification of a "question of general importance" is the trigger by which an appeal is justified. The object of the
appeal is still the judgment itself, not merely the certified question. One of the elements necessary for the disposition
of an application for judicial review is the standard of review of the decision of the administrative tribunal whose
decision is being reviewed, and that question is clearly in issue in this case. (Pushpanathan)
Some provisions within the same Act may require greater curial deference than others, depending on the factors assessed
under the pragmatic and functional approach
o For example in Toronto v CUPE (Oliver) the labour arbitrator was entitled to a high degree of deference on some
aspects of the decision but not on the issue of whether the criminal conviction could be relitigated
The Preliminary Questions Doctrine
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Under this theory courts were entitled to intervene in the process if it found that some condition precedent to the agency’s
exercise of its jurisdiction was not satisfied  the agency’s determination of preliminary questions were subject to
independent review by the courts on the basis of their correctness
o Those questions of law falling within the agency’s jurisdiction, on the other hand, were immune on the basis of the
preclusive clause
However CUPE v NB Liquor Control Board did away with the preliminary questions doctrine (sort of b/c it was mentioned in
Bibeault)
o With respect, I do not think that the language of "preliminary or collateral matter" assists in the inquiry into the Board's
jurisdiction. One can, I suppose, in most circumstances subdivide the matter before an administrative tribunal into a
series of tasks or questions and, without too much difficulty, characterize one of those questions as a "preliminary or
collateral matter". As Wade suggests in his Administrative Law (4th ed., 1977) at p. 245, questions of fact will naturally
be regarded as "the primary and central questions for decision", whereas the "prescribed statutory ingredients will be
more readily found to be collateral". This is precisely what has occurred in this case, the existence of the prohibition
described in the statute becoming the "collateral matter", and the facts possibly constituting breach of the prohibition,
however interpreted, the "primary matter for enquiry". Underlying this sort of language is, however, another and, in my
opinion, a preferable approach to jurisdictional problems, namely, that jurisdiction is typically to be determined at the
outset of the inquiry
vii
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The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert
to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so (Bibeault)
The concept of the preliminary or collateral question diverts the courts from the real problem of judicial review: it substitutes
the question "Is this a preliminary or collateral question to the exercise of the tribunal's power?" for the only question which
should be asked, "Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?" (Bibeault)
Thus was born the new era of judicial review
The Modern Approach  the Pragmatic and Functional Approach
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Use the pragmatic and functional approach to determine the appropriate standard of review
o The difficulty presented by the concept of the preliminary or collateral question is the absence of any coherent test for
distinguishing what is in fact preliminary (Bibeault)
o Bibeault, Pushpanathan
o Critique  Toronto v CUPE
Four factors to consider in the standard of review analysis
Presence or absence of a privative clause
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Even where a privative clause is present it does not speak to a high standard of review
Must also consider the strength of the privative clause
The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard.
(Pushpanathan)
The presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's
decision, unless other factors strongly indicate the contrary as regards the particular determination in question.
(Pushpanathan)
A full privative clause is "one that declares that decisions of the tribunal are final and conclusive from which no appeal lies
and all forms of judicial review are excluded" (Pushpanathan)
Example of a strong privative clause  from the Ontario Labour Relations Act (s.116)
o No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no
order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory
judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the
Board or any of its proceedings
Expertise of the Board/Decision maker
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Factors to consider in assessing expertise
If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of
the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a
greater degree of deference will be accorded (Pushpanathan)
Expertise must be understood as a relative, not an absolute concept (Pushpanathan)
Making an evaluation of relative expertise has three dimensions: (Pushpanathan)
o The court must characterize the expertise of the tribunal in question;
o It must consider its own expertise relative to that of the tribunal; and
o It must identify the nature of the specific issue before the administrative decision-maker relative to this expertise
A decision involving to some degree the application of highly specialized expertise will militate in favour of a high degree of
deference, and towards a standard of review at the patent unreasonableness end of the spectrum (Pushpanathan)
Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and law, or fact
alone. The composition of an administrative body might endow it with knowledge uniquely suited to the questions put before it
and deference might, therefore, be called for under this factor (Dr. Q)
Greater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the
question under consideration is one that falls within the scope of this greater expertise (Dr. Q)
Simply put, "whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of
implementing the Act", an administrative body called upon to answer a question that falls within its area of relative expertise
will generally be entitled to greater curial deference (Dr. Q)
viii
Purpose of the Statute and the Provision
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The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement
mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific
qualifications of its members. (Pushpanathan)
Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as
between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the
appropriateness of court supervision diminishes. (Pushpanathan)
That legal principles are vague, open-textured, or involve a "multi-factored balancing test" may also militate in favour of a
lower standard of review (Southam)
While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require
the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance
benefits and costs for many different parties. (Pushpanathan)
o Where an administrative structure more closely resembles this model, courts will exercise restraint.
A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is
concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or
considerations will demand greater deference from a reviewing court (Dr. Q)
For example, provisions that require the decision-maker to "have regard to all such circumstances as it considers relevant" or
confer a broad discretionary power upon a decision-maker will generally suggest policy-laden purposes and, consequently, a
less searching standard of review (Dr. Q)
A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature intended to
leave the issue to the discretion of the administrative decision-maker and, therefore, militates in favour of greater deference.
(Dr. Q)
Nature of the Question
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Is it a question of law or of mixed fact and law
Even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional
analysis suggest that such deference is the legislative intention (Pushpanathan)
Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure
determinations of law. (Pushpanathan)
Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear
whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of
circumstances that is not apt to be of much interest to judges and lawyers in the future (Southam)
In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the primary finder of fact.
Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular
familiarity with issues of law. While there is merit in the distinction between fact and law, the distinction is not always so clear.
Specialized boards are often called upon to make difficult findings of both fact and law. In some circumstances, the two are
inextricably linked. Further, the "correct" interpretation of a term may be dictated by the mandate of the board and by the
coherent body of jurisprudence it has developed. In some cases, even where courts might not agree with a given interpretation,
the integrity of certain administrative processes may demand that deference be shown to that interpretation of law. (Mossop)
For example, as the [court] has made clear, judicial decisions of first instance on factual issues will only be interfered with
where the appellate court can identify a "palpable and overriding error" or where the finding was "clearly wrong": (Dr. Q)
When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more deference towards the
tribunal's decision. Conversely, an issue of pure law counsels in favour of a more searching review (Dr. Q)
Once these four factors are assessed and each is determined as to whether they indicate more or less deference for the decision
being made it will be necessary to arrive at a standard of review  there are three standards of review that are available
o Ryan  factors do not have to all point in the same direction to get to either correctness or patent unreasonableness
The Standard of Review
Correctness
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2. if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to
lose jurisdiction and subject the tribunal to judicial review (Bibeault)
When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges
correct. (Ryan)
There is only one correct answer
ix
Reasonableness
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The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect
(Southam)
if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently
unreasonable. (Southam)
Those reasons cannot be said to be without foundation or logical coherence  must have some support in the evidentiary
record for the reasons (Southam)
[W]hen deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the
correct decision would have been... . The standard of reasonableness does not imply that a decision maker is merely afforded a
"margin of error" around what the court believes is the correct result (Ryan)
Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to
it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally
supported by the relevant legislation and demands intervention by the court upon review? (CUPE – 79)
There is no one interpretation which can be said to be "right". (CUPE – 79)
An unreasonable decision was one that does not stand up to a somewhat probing analysis. (Southam)
A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or
decided as the tribunal did (Southam)
"After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" (Ryan –
paraprhasing Southam?)
A court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (Ryan)
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing
examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any
reasons support it. (Ryan)
A court should not at any point ask itself what the correct decision would have been (Ryan)
Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the
standard of reasonableness (Ryan)
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it arrived. (Ryan)
o If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a
somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere
(Ryan)
This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this
explanation is not one that the reviewing court finds compelling (Ryan)
If a decision maker applies the wrong criteria in making its decision its decision would be unreasonable (Chamberlain)
If there are guidelines and/or regulations in place that the decision maker does not follow that decision may be unreasonable
(Chamberlain)
Patent unreasonableness
o
o
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o
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o
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o
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1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently
unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject
to judicial review (Bibeault)
A patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that
the decision is defective (Ryan)
A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might
only be discovered after "significant searching or testing" (Ryan)
In some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it
may be no less unreasonable but this can only be understood upon an in-depth analysis (National Corn Growers)
Where a tribunal is interpreting a legislative provision, the test is (Toronto (City) Board of Education v OSSTF)
o was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the
relevant legislation and demands intervention by the court upon review?
It has been held that a finding based on "no evidence" is patently unreasonable. However, it is clear that a court should not
intervene where the evidence is simply insufficient (OSSTF  variant for labour arbitrators)
Even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only
substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's
findings. (OSSTF)
Absence of evidence supporting the reasons (of decision maker) makes the decision patently unreasonable (OSSTF)
If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. (Southam)\
x
o
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o
o
o
o
acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the
provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not
remitted to it (CUPE – 1979 – factors that would make a decision patently unreasonable)
Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to
it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally
supported by the relevant legislation and demands intervention by the court upon review? (CUPE – 1979)
in assessing whether administrative action is patently unreasonable, the goal is not to review the decision or action on its
merits but rather to determine whether it is patently unreasonable, given the statutory provisions governing the particular body
and the evidence before it (CUPE – 2003)
To pass a review for patent unreasonableness, a decision must be one that can be "rationally supported"; this standard cannot
be met where, as here, what supports the adjudicator's decision -- indeed, what that decision is wholly premised on -- is a legal
determination that the adjudicator was required, but failed, to decide correctly. (CUPE – 2003)
To say, however, that in such circumstances a decision will be patently unreasonable -- a conclusion that flows from the
applicability of two separate standards of review -- is very different from suggesting that a reviewing court, before applying the
standard of patent unreasonableness, must first determine whether the adjudicator's decision is (in)correct or that in applying
patent unreasonableness the court should ask itself at any point in the analysis what the correct decision would be. In other
words, the application of patent unreasonableness itself is not, and should not be, understood to be predicated on a finding of
incorrectness, for the reasons that I discussed above (CUPE – 2003)
courts must be careful [under a standard of patent unreasonableness] to focus their inquiry on the existence of a rational basis
for the decision of the tribunal, and not on their agreement with it" (CUPE – 2003)
Critiquing the Standard
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CUPE (2003)
"even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional
analysis suggest that such deference is the legislative intention"
o The critical factor in this respect is expertise
while administrative adjudicators' interpretations of external statutes "are generally reviewable on a correctness standard", an
exception to this general rule may occur, and deference may be appropriate, where "the external statute is intimately connected
with the mandate of the tribunal and is encountered frequently as a result"
Where an administrative adjudicator must decide a general question of law in the course of exercising its statutory mandate,
that determination will typically be entitled to deference (particularly if the adjudicator's decisions are protected by a privative
clause), inasmuch as the general question of law is closely connected to the adjudicator's core area of expertise
This Court has set out a number of definitions of "patent unreasonableness", each of which is intended to indicate the high
degree of deference inherent in this standard of review.
o There is some overlap between the definitions and they are often used in combination. I would characterize the two main
definitional strands as, first, those that emphasize the magnitude of the defect necessary to render a decision patently
unreasonable and, second, those that focus on the "immediacy or obviousness" of the defect, and thus the relative
invasiveness of the review necessary to find it.
 I would place in the first category Dickson J.'s (as he then was) statement in Canadian Union of Public
Employees, Local 963 v. New Brunswick Liquor Corp., ("CUPE"), that a decision will only be patently
unreasonable if it "cannot be rationally supported by the relevant legislation"
 In the second category, I would place Iacobucci J.'s description in Southam, supra, of a patently unreasonable
decision as one marred by a defect that is characterized by its "immediacy or obviousness":
It has been suggested that the Court's various formulations of the test for patent unreasonableness are "not independent,
alternative tests. They are simply ways of getting at the single question: What makes something patently unreasonable?"
The lack of sufficiently clear boundaries between patent unreasonableness and reasonableness simpliciter has its origins in
the fact that patent unreasonableness was developed prior to the birth of the pragmatic and functional approach and, more
particularly, prior to (rather than in conjunction with) the formulation of reasonableness simpliciter in Southam, supra.
Under both patent unreasonableness and reasonableness simpliciter, mere disagreement with the adjudicator's decision is
insufficient to warrant intervention
Applying the patent unreasonableness standard, "the court will defer even if the interpretation given by the tribunal ... is not
the 'right' interpretation in the court's view nor even the 'best' of two possible interpretations, so long as it is an interpretation
reasonably attributable to the words of the agreement"
In the case of reasonableness simpliciter, "a decision may satisfy the ... standard if it is supported by a tenable explanation
even if this explanation is not one that the reviewing court finds compelling" (Ryan, supra, at para. 55). There seems to me to
be no qualitative basis on which to differentiate effectively between these various characterizations of a rationality analysis;
how, for instance, would a decision that is not "tenably supported" (and is thus "merely" unreasonable) differ from a decision
that is not "rationally supported" (and is thus patently unreasonable)?
There is a second approach to distinguishing between patent unreasonableness and reasonableness simpliciter that requires
discussion
xi
o
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The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the
defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently
unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable
but not patently unreasonable
In my view, two lines of difficulty have emerged from emphasizing the "immediacy or obviousness" of the defect, and thus the
relative invasiveness of the review necessary to find it, as a means of distinguishing between patent unreasonableness and
reasonableness simpliciter.
o The first is the difficulty of determining how invasive a review is invasive enough, but not too invasive, in each case.
o The second is the difficulty that flows from ambiguity as to the intended meaning of "immediacy or obviousness" in
this context: is it the obviousness of the defect in the sense of its transparency on the face of the decision that is the
defining characteristic of patent unreasonableness review or is it rather the obviousness of the defect in terms of the
ease with which, once found, it can be identified as severe?
This brings me to the second problem: in what sense is the defect immediate or obvious? Southam left some ambiguity on this
point. As I have outlined, on the one hand, a patently unreasonable decision is understood as one that is flawed by a defect that is
evident on the face of the decision, while an unreasonable decision is one that is marred by a defect that it takes significant
searching or testing to find.
o In other places, however, Southam suggests that the "immediacy or obviousness" of a patently unreasonable defect
refers not to the ease of its detection, but rather to the ease with which, once detected, it can be identified as severe
Thus, both patent unreasonableness and reasonableness simpliciter require that reviewing courts pay "respectful attention"
to the reasons of adjudicators in assessing the rationality of administrative decisions
o While a defect may be readily apparent because it is severe, a severe defect will not necessarily be readily apparent; by
the same token, a flaw in a decision may be immediately evident, or obvious, but relatively inconsequential in nature.
On the assumption that we can distinguish effectively between an unreasonable and a patently unreasonable decision, there
are situations where an unreasonable (i.e., irrational) decision must be allowed to stand.
o This would be the case where the standard of review is patent unreasonableness and the decision under review is
unreasonable, but not patently so.
Constitutional Questions
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If a constitutional question arises the preeminent cases are two: Paul v BC and Martin v NS
Cooper
o
Cooper was the old way
 in my opinion, s. 52 can only be used by the courts of this country, because the task of declaring invalid legislation
enacted by a democratically elected legislature is within the exclusive domain of the judiciary. I should make it very
clear at the outset of my reasons that I am not addressing the role of administrative tribunals in relation to s. 24(1) of
the Canadian Charter of Rights and Freedoms (Lamer – Cooper)
 I would even go so far as to say that tribunals cannot be expressly given the power to consider the constitutionality of
their enabling legislation, for the same reasons. (Lamer – Cooper)
 I must emphasize that this conclusion does not detract from the power of the Commission to determine whether
complaints fall within federal jurisdiction according to the division of powers (Lamer – Cooper)
 The assumption by administrative tribunals of jurisdiction over the Charter does no less than to invert this
hierarchical relationship. (Lamer – Cooper)
 Instead of being subject to the laws of the legislature, the executive can defeat the laws of the legislature. On each
occasion that this occurs, a tribunal has disrupted the proper constitutional relationship between it and the
legislature. Indeed, I would go so far as to say that a tribunal has, in these circumstances, unconstitutionally usurped
power which it did not have. (Lamer – Cooper)
 If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) that it must
be able to address constitutional issues, including the constitutional validity of its enabling statute. This principle was
clearly enunciated by this Court in Cuddy Chicks (LaForest – Cooper)
o There is no doubt that the power to consider questions of law can be bestowed on an administrative tribunal
either explicitly or implicitly by the legislature. (LaForest – Cooper)
o
All the parties agree that there is no provision in the Act that expressly confers on the Commission a
general power to consider questions of law. (LaForest – Cooper)
 There being no such express authority, it becomes necessary to determine whether Parliament has granted it implicit
jurisdiction to consider such questions (LaForest – Cooper)
 When Parliament has failed to vest an administrative body with such a jurisdiction (which is the case here), then it is
not the role of a court to create such jurisdiction. (LaForest – Cooper)
 Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be
respected (LaForest – Cooper)
xii
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Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its
enabling statute, it logically follows that a tribunal appointed under the Act, and indeed a review tribunal appointed
pursuant to s. 56, must also lack the jurisdiction to declare unconstitutional a limiting provision of the Act. (LaForest
– Cooper)
As with the Commission there is no explicit power given to a tribunal to consider questions of law. (LaForest –
Cooper)
However, unlike the Commission, it is implicit in the scheme of the Act that a tribunal possess a more
general power to deal with questions of law. Thus tribunals have been recognized as having jurisdiction to interpret
statutes other than the Act and as having jurisdiction to consider constitutional questions other than those noted
above. (LaForest – Cooper)
I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter
arguments. (LaForest – Cooper)
 First, as already noted, a tribunal does not have any special expertise except in the area of factual
determinations in the human rights context.
 Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the
inevitable judicial review proceeding is brought in the Federal Court.
 Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights
complaint determination but is inappropriate when addressing the constitutionality of a legislative provision.
 Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a
tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in
creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints
Martin
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Martin laid out a new test for whether administrative agencies have the authority to assess constitutional questions (¶48)
 The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to
Charter scrutiny can be summarized as follows: (Martin)
 (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide
questions of law arising under the challenged provision.
 (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority.
o (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will
include the statutory mandate of the tribunal in issue and whether deciding questions of law is
necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other
elements of the administrative system; whether the tribunal is adjudicative in nature; and practical
considerations, including the tribunal's capacity to consider questions of law.
o Practical considerations, however, cannot override a clear implication from the statute itself.
 (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative
provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that
provision under the Charter.
 (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by
o (a) pointing to an explicit withdrawal of authority to consider the Charter; or
o (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion
that the legislature intended to exclude the Charter (or a category of questions that would include
the Charter, such as constitutional questions generally) from the scope of the questions of law to be
addressed by the tribunal.
o Such an implication should generally arise from the statute itself, rather than from external
considerations.
Paul
o
Paul relates to issues dealing with aboriginal rights and reaffirms the approach of Martin
 there is no principled basis for distinguishing s. 35 rights from other constitutional questions (Paul)
 the power of an administrative board to apply valid laws is the power to apply valid laws only to those factual
situations to which they are constitutionally applicable, or to the extent that they do not run afoul of s. 35 rights.
 This Court's decision in Cooper, supra, has too easily been taken as suggesting that practical considerations relating
to a tribunal may readily overcome this presumption.
 I am of the view that the approach set out in Martin, in the context of determining a tribunal's power to apply the
Charter, is also the approach to be taken in determining a tribunal's power to apply s. 35 of the Constitution Act,
1982
 Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide
questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in
xiii
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determining what is the most appropriate way of handling a particular dispute where more than one option is
available.
the power to find a statutory provision of no effect, by virtue of s. 52(1) of the Constitution Act, 1982, is distinct from
the remedial power to invoke s. 24(1) of the Charter  s.35 does not fall under the Charter so this issue is moot
Tranchemontagne
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Tranchemontagne – deals with Human Rights Statute and incorporating it into other legislation
o Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of its tribunals however it sees
fit. (Tranchemontagne)
o it is one thing to preclude a statutory tribunal from invalidating legislation enacted by the legislature that created it.
 It is completely different to preclude that body from applying legislation enacted by that legislature in order
to resolve apparent conflicts between statutes.
o The former power -- an act of defying legislative intent -- is one that is clearly more offensive to the legislature; it
should not be surprising, therefore, when the legislature eliminates it. Yet the latter power represents nothing more
than an instantiation of legislative intent -- a legislative intent, I should
o Two elements of the Code regime, in addition to those discussed under the ODSPA and OWA, confirm this legislative
intention.
 The first is found at s. 47(2). This section provides not simply that the Code takes primacy over other
legislative enactments, but that this primacy applies "unless the [other] Act or regulation specifically
provides that it is to apply despite this Act [the Code]".
 The second element in the statutory scheme that confirms the jurisdiction of the SBT to apply the Code is the
non-exclusive jurisdiction of the OHRC concerning the interpretation and application of the Code
 In its present form, the Code can be interpreted and applied by a myriad of administrative actors.
o I therefore conclude that the SBT has jurisdiction to consider the Code. The ODSPA and OWA confirm that the SBT
can decide questions of law.
o It follows that the SBT is presumed to have the jurisdiction to consider the whole law. More specifically, when it
decides whether an applicant is eligible for income support, the SBT is presumed able to consider any legal source
that might influence its decision on eligibility. In the present appeal, the Code is one such source
o There is no indication that the legislature has sought to rebut this presumption.
o The analysis that the respondent invites is premised on the assumption that the SBT could decline jurisdiction if it
determines that the OHRC is a more appropriate forum in which the applicants could advance their claim.
o Where a tribunal is properly seized of an issue pursuant to a statutory appeal, and especially where a vulnerable
appellant is advancing arguments in defence of his or her human rights, I would think it extremely rare for this
tribunal to not be the one most appropriate to hear the entirety of the dispute.
o I am unable to think of any situation where such a tribunal would be justified in ignoring the human rights
argument, applying a potentially discriminatory provision, referring the legislative challenge to another forum, and
leaving the appellant without benefits in the meantime
Independence and Impartiality
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The general test for whether an adjudicator or decision maker should be disqualified comes from Committee for Justice and
Liberty v National Energy Board (1978) (de Grandpre in dissent at 394-395)
o The 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”
The other, which has since become a sort of legal axiom, is that it "is of fundamental importance that justice should not only
be done but should manifestly and undoubtedly be seen to be done (Energy Probe)
As I see it in practice, to operate disqualification, the pecuniary interest ought to be more immediate and certain and the nonpecuniary interest must give rise to very substantial grounds for apprehending lack of objectivity. All this may give rise to
difficult problems of application in real life but the idea is of course valid (Energy Probe)
 Some factors which may lead to an apprehension of bias include (Energy Probe)
o kinship, friendship, partisanship, particular professional or business relationship with one of the parties, animosity
towards someone interested, predetermined mind as to the issue involved
A plurality of functions in a single administrative agency is not necessarily problematic. This Court has already suggested that
such a multifunctional structure does not in itself always raise an apprehension of bias (Brousseau)
In matters of institutional bias, it is the reasonable apprehension of the informed person that we must consider and not the
proven or presumed existence of an actual conflict of interest (2747-3174 Quebec Inc)
xiv
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there is no suggestion that there were "flagrant violations" of procedural fairness or otherwise This is not, in my view, the
exceptional case in which there is manifest error on the part of the appeal tribunals nor is it a flagrant case of injustice at any
level of the proceedings which demands that the court interfere. (Paine)
The question is whether, at the end of the day (to use an English expression), Mr. Paine has shown that he was treated with
such manifest unfairness as to call for intervention by the court (Paine)
In our view, the unique aspect of this case is that Miss Backhouse went beyond the position of an advocate and descended
personally, as a party, into the very arena over which she has been appointed to preside in relation to the very same issues she
has to decide (Great Atlantic and Pacific)
By becoming a personal complainant before the very commission that was prosecuting the similar case before her, she
personally selected one of the parties before her as her own advocate to pursue her personal complaint about the same issue
(Great Atlantic and Pacific)
Impartiality is the fundamental qualification of a judge and the core attribute of the judiciary (Wewaykum)
Saying that there was "no actual bias" can mean one of three things: that actual bias need not be established because
reasonable apprehension of bias can be viewed as a surrogate for it; that unconscious bias can exist, even where the judge is
in good faith; or that the presence or absence of actual bias is not the relevant inquiry. (Wewaykum)
o The third is often viewed as "it is not merely of some importance but is of fundamental importance that justice should
not only be done, but should manifestly and undoubtedly be seen to be done" (Wewaykum)
Of the three justifications for the objective standard of reasonable apprehension of bias, the last is the most demanding for the
judicial system, because it countenances the possibility that justice might not be seen to be done, even where it is undoubtedly
done -- that is, it envisions the possibility that a decision-maker may be totally impartial in circumstances which nevertheless
create a reasonable apprehension of bias, requiring his or her disqualification.
If every time the government announced that it wanted to change something that it would create a reasonable apprehension of bias
then the whole system would grind to a halt and this could not be what was intended by anyone (because of independence) (Sethi)
It is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but
also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the
tribunal giving rise to this apprehension (Canadian Pacific – Lamer)
Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be
applied in light of the functions being performed by the particular tribunal at issue. (Canadian Pacific – Lamer)
The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and
other indices of independence, in order to determine whether a reasonable and right-minded person, viewing the whole
procedure as set out in the assessment by-laws, would have a reasonable apprehension of bias on the basis that the members of
the appeal tribunals are not independent (Canadian Pacific – Lamer)
The Valente principles are flexible in their application to administrative tribunals, but they cannot be ignored. (Canadian
Pacific – Lamer)
In these circumstances, I am of the view that the directors have sufficient security of tenure within the meaning of Valente,
since sanctions are available for any arbitrary interference by the executive during a director's term of office (2747-3174
Quebec Inc)
All aspects of the tribunal's structure, as laid out in its enabling statute, must be examined, and an attempt must be made to
determine precisely what combination of functions the legislature intended that tribunal to serve, and what procedural
protections are appropriate for a body that has these particular functions. (Bell Canada)
 There is no indication in the Act that the legislature intended anything less than a high degree of independence of
Tribunal members. (Bell Canada)
o Members hold fixed terms and the Chair is only removable for cause
o These features of the statutory scheme suggest that the legislature intended the Tribunal to exhibit a high degree of
independence from the executive branch
The same test applies to the issue of impartiality as applies to independence
As an administrative tribunal subject to the supervisory powers of s. 96 courts, the Tribunal does not have to replicate all
features of a court. (Bell Canada)
If the discretionary power of the Chief Justice and Judicial Council of the provincial courts to extend the tenure of judges does
not compromise their independence in a manner that contravenes the requirements of judicial independence, then neither
does the discretionary power of the Tribunal Chairperson compromise the independence of Tribunal members in a manner
that contravenes common law procedural fairness. (Bell Canada)
The decision-maker must approach the issue submitted to him or her with an open mind, not influenced by personal interests
or outside pressure. It is not sufficient that the decision-maker be impartial in his or her own mind, internally, to the
satisfaction of his or her own conscience. (Imperial Oil)
The principles of natural justice do undeniably govern the actions of administrative decision-makers (Imperial Oil)
The appellant's reasoning thus treats the Minister, for all intents and purposes, like a member of the judiciary, whose personal
interest in a case would make him apparently biased in the eyes of an objective and properly informed third party. (Imperial
Oil)
xv
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This line of argument overlooks the contextual nature of the content of the duty of impartiality which, like that of all of the
rules of procedural fairness, may vary in order to reflect the context of a decision-maker's activities and the nature of its
functions (Imperial Oil)
The only interests the Minister was representing were the public interest in protecting the environment and the interest of the
State, which is responsible for preserving the environment (Imperial Oil)
There was no conflict of interest to warrant judicial intervention, let alone any abuse or misuse of power (Imperial Oil)
the legislature's choice of the Minister as the proper authority to exercise the power of appointment is clear and unequivocal.
(CUPE v MOL)
For the court to require the Minister to delegate the choice to an official in his Ministry in the face of the text of s. 6(5) would
amount, I think, to a judicial amendment of the legislation. (CUPE v MOL)
Discretionary decision making and the application of the standard


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Some points of reference that courts use in assessing the width of the discretionary power in question
o The statutory language in which the discretion is granted
o The nature of the interest affected by the discretionary power
o The character of the decision
o The character of the decision maker
However it is a requirement of the concept of government under the law that discretionary powers are presumptively limited in
scope and the agency’s discretion does not extend to defining the limits of its own powers.
o It is for the courts to ensure that the agency does not use its power for some purpose not authorized by the legislature or
base its decision on a range of factors that are either narrower or broader than those intended by the legislature to inform
the exercise of the discretion
Discretion necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is
intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption
For many years after Bibeault the SCC did not consider whether the pragmatic and functional approach requires that
questions of relevancy and propriety of purpose should be characterized as jurisdictional and thus reviewable for correctness,
when the agency’s decisions are protected by a privative clause
o Rather the court simply substituted its view for that, for example, of labour relations boards as to whether the remedy
granted under a broad statutory power does, as the statute provides, further the objectives of the legislation, or
counter the consequences of the unfair labour practice that has been committed
But Baker changed things  SCC emphasized the lack of a bright-line distinction at the margins between questions of law
and exercises of discretion
o Led the SCC to recognized that the pragmatic and functional approach was of use in determining the intensity with
which reviewing courts should be approaching decisions in the discretionary section of the spectrum between pure
questions of law, at one end, and completely unfettered discretion to be exercised on the basis of the subjective
judgment of the repository of power, at the other end
o Thus came standard of review discourse to the world of discretion
The court's task, if called upon to review the Minister's decision, is to determine whether the Minister has exercised her decisionmaking power within the constraints imposed by Parliament's legislation and the Constitution. (Suresh)
o If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his
decision. (Suresh)
o It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion (Suresh)
o The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by
the evidence or fails to consider the appropriate factors. (Suresh)
o If the Minister has considered the correct factors, the courts should not reweigh them. (Suresh)
Judicial intervention is warranted only where a municipality's exercise of its powers is clearly ultra vires, or where council has
run afoul of one of the other accepted limits on municipal power. (Shell)
Prerogative Powers and Non-Justiciability


Action by the state or, conversely, inaction by the state will frequently have the effect of decreasing or increasing the risk to the
lives or security of its citizens. It may be argued, for example, that the failure of government to limit significantly the speed of
traffic on the highways threatens our right to life and security in that it increases the risk of highway accidents. Such conduct,
however, would not, in my view, fall within the scope of the right protected by s. 7 of the Charter (Dismantle)
At the very least, it seems to me, there must be a strong presumption that governmental action which concerns the relations of
the state with other states, and which is therefore not directed at any member of the immediate political community, was never
intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury
that individuals generally have to face. (Dismantle)
xvi

the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals (Black)
o If the executive in pursuance of the statutory power does an act affecting the rights of the citizen, it is beyond
question that in principle the manner of the exercise of that power may today be challenged on one or more of the
three grounds which I have mentioned earlier in this speech (Black)
Standing



The issue of standing in this appeal, as I conceive it, may be approached by asking the following questions: (Finlay)
o 1. Does the respondent have a sufficient personal interest in the legality of the federal cost-sharing payments to bring
him within the general requirement for standing to challenge an exercise of statutory authority by an action for a
declaration or an injunction?
o 2. If not, does the Court have a discretion to recognize public interest standing in the circumstances of the present
case?
o 3. If the Court does have such a discretion should it be exercised in favour of the respondent?
traditional judicial concerns about the expansion of public interest standing may be summarized as follows: (Finlay)
o the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody;
o the concern that in the determination of issues the courts should have the benefit of the contending points of view of
those most directly affected by them; and
o the concern about the proper role of the courts and their constitutional relationship to the other branches of
government
One issue is whether the tribunal or agency has the ability to represent its case when its decision is appealed
o Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or review
proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question
(Northwestern Utilities)
o The issue of whether or not a board has acted in accordance with the principles of natural justice is surely not a matter
upon which the board, whose exercise of its functions is under attack, should debate, in appeal, as a protagonist
(Northwestern Utilities)
o But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable,
there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is the tribunal is in the
best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise
of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the
intricacies of the specialized area (CAIMAW)
o Two competing interests: fully informed adjudication (CAIMAW) and maintaining tribunal impartiality
(Northwestern Utilities) underlie the temptation to exclude tribunals from further proceedings (Children’s Lawyer)
o Where there is no other way of fully adjudicating the issues – where there is no “other party” it may be advisable to
have the tribunal present its case (Children’s Lawyer)
Alternative Remedies
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The courts will sometimes regard the existence of a specific remedy in the empowering statute as excluding the availability of
common law judicial review as a matter of jurisdiction
More frequently however, the question of alternative remedies is dealt with by reference to the courts’ overriding discretion to
refuse relief even where the substance of the applicant’s or plaintiff’s case may have been made out
In such instances the questions to be asked tend to be about the relative or comparative convenience of judicial review as opposed
to the alternative forms of relief that are also available
It is not simply enough to assert that there are alternative avenues of relief available and that, given the historically
“extraordinary” nature of prerogative relief in particular, those other avenues are therefore, the more appropriate ones to pursue
The issue whether a particular remedy is the more appropriate is not always an easy one to resolve
The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right
(Harlekin)
Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise,
then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If however, there is a convenient
alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy
and inexpensive as well as efficacious administration of justice ... (Harlekin)
On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they
should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure.
(Canadian Pacific)
These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body
(i.e., its investigatory, decision-making and remedial capacities). (Canadian Pacific)
xvii

In this case, when applying the adequate alternative remedy principle, we must consider the adequacy of the statutory appeal
procedures created by the bands, and not simply the adequacy of the appeal tribunals. This is because the bands have provided
for appeals from the tribunals to the Federal Court, Trial Division (Canadian Pacific)
Notes After CP case
o
o
Concern about whether an appeal tribunal can afford appropriate relief is one concern
 For example whether or not the appeal tribunal could dismiss the proceedings of a junior board that is
investigating a complaint (Misra v College of Physicians and Surgeons (Sask))
In some situations it may be better to have the administrative tribunal hear the matter
 For example where there are multiple issues being heard at the same time in front of the tribunal and there is the
potential for divergent results
 CNR and the OMB case about the railway lands in Toronto and the court refused to deal with it
Remedies

There are three major issues in respect of remedies
o In relation to applications for interlocutory reliefe to prevent governmental action pending the determination of an
application for JR
o Arguments to the effect that the court, as a matter of discretion and irrespective of the merits of the claim being
advanced, should deny relief
o Problems of standing to seek JR
Key Questions that may arise at the remedial end of a case
o
o

Are there alternatives other than recourse to the courts for resolving the matter in dispute?
If recourse to the courts appears to be the only or indicated course of action what is the nature of that recourse
 Judicial review or some other form of common law, equitable or statutory remedy (such as a right of appeal)
o If judicial review is the appropriate course of action, is the matter in dispute one that involves federal or provincial
agencies?
o Within the options provided by the public law of judicial review what is the nature of the relief that is needed
o Are there any limitations on the availability and scope of judicial review as manifested in leave to apply requirements,
privative clauses, limitation periods, and immunities from suit and testifying
o From the perspectives of procedure and evidence is the matter one that is capable of satisfactory resolution based on
affidavit evidence in the context of summary proceedings or is a trial type process with viva voce evidence more
desirable
o Is there any potential problem with the standing of the person seeking judicial review
o Are there any discretionary reasons that may cause a court to refuse or limit the relief that is available
The issue of whether the body is public or private may arise in the context of whether or not its decisions can be reviewed at all
o Governments  to some extent – are under higher obligations that private actors
o Often this distinction comes down to whether the source of the power is legislative  is it’s power statutorily based
Judicial Review Procedures Acts

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
The language of statutes such as Ontario’s Judicial Review Procedures Act in which the remedies of public law are not only
replaced but consolidated and codified in a single application for JR can have an impact on the extent of relief
Three things need to be noted about the BC and Ontario Acts
o Some question as to whether the remedies that provide the reference point for the new application for JR created in
the Acts were to be given the content that they had at the time of the creation of the new remedy or whether their
content should be delineated on the basis of the scope that they came to possess in other jurisdictions over the course
of time  now seems clear that their content is not frozen in time at the time of the enactment of the statutes
o There is an issue as to the meaning and impact of the words “in the nature of”  prior to the enactment of these
statutes the courts did not issue the prerogative writs rather as a result of earlier procedural reforms they issued
orders in the nature of writs  this would seem to suggest that the use of this language in the Acts had no objective
other than a reference to the existing terminology of public law relief
o Reference should be made to the somewhat different terms in which the new remedy in both statutes encompasses
prerogative style relief, on the one hand, and injunctive and declaratory relief on the other. The purpose in linking
relief by way of declaration and injunction to the exercise of a statutory power always seemed fairly clear  the
object of the Act was to capture only the public, not the private law uses of those remedies. As far as relief in the
nature of the traditional prerogative writs was concerned such a limitation or qualification was unnecessary; of their
very nature they were only public law remedies
Cases
xviii
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
Before digressing I indicated that one does not look only at who the governmental person or agency is to determine if Crown
immunity attaches but at what function or power that person or agency was exercising at the critical time. (Saskatchewan
Water)
When a Crown agent is sued in his own right, no defence of Crown immunity is available to the Crown agent (Saskatchewan
Water – quoting Hogg)
Whenever the law deems the Crown agent to be liable in its own right, the Crown agent loses the protection of the Crown's
immunities. By affirming that a Crown agent may be liable in its own right in tort and contract, the courts have carved out an
important exception to the Crown's immunities. It is without doubt judicial hostility to these immunities that is one reason for
the readiness of the courts to extend the sphere of the Crown agent's personal liability (Saskatchewan Water – quoting Hogg
Interlocutory Relief

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
when the constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be restricted
to the application of traditional criteria which govern the granting or refusal of interlocutory injunctive relief in ordinary
private or civil law cases. (Met Stores)
o Unless the public interest is also taken into consideration in evaluating the balance of convenience, they very often
express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the
merits
suspension cases and exemption cases are governed by the same basic rule according to which, in constitutional litigation,
(Met Stores)
o an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in
the balance of convenience and weighted together with the interest of private litigants
In short, I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no
interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the
balance of convenience, the public interest is taken into consideration and given the weight it should carry. (Met Stores)
One must satisfy the court that the claim is not frivolous or vexatious  there must be a serious question to be tried (Met
Stores and RJR MacDonald from American Cyanamid (UK case  reformulation of the threshold))
o Reasons why this test rather than a more stringent review of the merits is appropriate in Charter cases (Met Stores)
 These included the difficulties in deciding complex factual and legal issues based on the limited evidence
available in an interlocutory proceeding, the impracticability of undertaking a s.1 analysis at that stage, and
the risk that a tentative determination on the merits would be made in the absence of complete pleadings or
prior to the notification of any Attorneys General
The court then went on to refine what the concept ot “irreparable harm” meant in the public law setting (RJR Macdonald)
o The assessment of irreparable harm in interlocutory applications involving Charter rights is a task which will often be
more difficult than a comparable assessment in a private law application. One reason for this is that the notion of
irreparable harm is closely tied to the remedy of damages, but damages are not the primary remedy in Charter cases
 Monetary harm  the money spent fighting a court challenge, will not normally amount to irreparable harm
Court also built upon how the public interest should be dealt with in this kind of Charter litigation (RJR Macdonald)
o When a private applicant alleges that the public interest is at risk that harm must be demonstrated
 Since the private applicant is usually deemed to be pursuing their own interests and not the public interest
o In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of
a private applicant.
 The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of
promoting or protecting the public interest and upon some indication that the impugned legislation,
regulation, or activity was undertaken pursuant to that responsibility.
o A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint
sought.
o Similarly, even in suspension cases, a court may be able to provide some relief if it can sufficiently limit the scope of
the applicant's request for relief so that the general public interest in the continued application of the law is not
affected
The Court had also identified its more general sense of the competing interests in litigation of this kind
o On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected
officials of its effect
o On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the
courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as
unconstitutional might in some instances be to condone the most blatant violation of Charter rights

xix
Chapter 1 – The Administrative State and the Rule of Law ..................................................... 1
Chapter 3 – The Role of Judicial Review ..................................................................................5
Baker v Canada (Minister of Citizenship and Immigration) 1999 ........................................................... 5
Part II – Procedures ..................................................................................................................8
Chapter 4 – Fairness: The Threshold .......................................................................................8
Cooper v Board of Works for Wandsworth District (1863)....................................................................... 9
Nicholson v Haldimand-Norfolk (Regional) Police Commissioners (SCC – 1979)................................ 9
Martineau v Matsqui Inmate Disciplinary Board (1980 – SCC) ............................................................. 10
Cardinal v Director of Kent Institutions (1985 – SCC) ............................................................................ 10
Knight v Indian Head School Division No 19 (SCC – 1990) ................................................................... 10
Canada (Attorney General) v Inuit Tapirisat of Canada (1980 SCC) ...................................................... 11
Homex Realty (1980 SCC) ....................................................................................................................... 12
Legitimate Expectations ............................................................................................................................. 16
Liverpool Taxi Fleet Operators’ Association .......................................................................................... 16
CUPE v Ministry of Labour [2003] 1 SCR 539 ........................................................................................ 17
Reference Re: Canada Assistance Plan (1991 SCC) ................................................................................ 18
Furey v Roman Catholic School Board for Conception Bay Centre (1991 Nfld.) ................................... 18
Mount Sinai Hospital v Quebec (Minister of Health and Social Services) (2001 SCC) ......................... 18
Chapter 5 - The Choice of Procedures.................................................................................... 20
Suresh v Canada (Minister of Citizenship and Immigration [2002] 1 SCR 3 (Can.) ............................. 20
Ahani v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 72 ...................................... 22
The Statutory Powers Procedures Act ....................................................................................................... 22
Krever Commission ................................................................................................................................ 24
Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General
Hospital) ................................................................................................................................................. 26
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) .............................................. 27
Masters v Ontario ................................................................................................................................... 28
Khan v University of Ottawa .................................................................................................................. 29
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated
Clothing and Textile Workers’ Union .................................................................................................... 30
Howard v Stony Mountain Institution ................................................................................................... 30
New Brunswick (Minster of Health and Community Services) v. G. (J.) [J.G.] ................................... 32
Kane v Board of Governors of the University of British Columbia ....................................................... 33
Re Napoli and Workers’ Compensation Board (1981) ........................................................................... 34
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) ............................................ 35
Gough v Canada ..................................................................................................................................... 37
Magnasonic Canada v Anti-Dumping Tribunal (1972) ......................................................................... 38
Sivaguru v Canada (Minister of Employment and Immigration) (1992) (FCA).................................... 39
Lawal v Canada (Minister of Employment and Immigration) (1991) (FCA) ........................................ 39
Canadian Cable Television Association v American College Sports Collective of Canada (1991) (FCA)
................................................................................................................................................................ 39
Universite du Quebec a Trois-Rivieres v Larocque (1993) (SCC) ......................................................... 40
Armstrong v Canada (Commissioner of the Royal Canadian Mounted Police) [1998] 2 F.C. 666 CA .. 40
Via Rail Canada Inc. v National Transportation Agency [2001] (FCA) ................................................ 42
Chapter Six – Institutional Decisions ..................................................................................... 44
Vine v National Dock Labour Board (1957 – AC 488 (Eng. HL)) ......................................................... 45
International Woodworkers of America, Local 2-69 v. Consolidated Bathurst Packaging Ltd
(1983)(SCC) ............................................................................................................................................. 45
Tremblay v Quebec (Commission des affaires Sociales) (1992 SCC) .................................................... 49
Ellis-Don Ltd. v. Ontario (Labour Relations Board)(2001 SCC) ............................................................ 51
Chapter 7 – Bias and Lack of Independence ......................................................................... 52
xx
Energy Probe v. Canada (Atomic Energy Control Board) (1984 FCA) ................................................. 53
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) (1996 SCC) .......................................... 55
Paine v University of Toronto (1980) Div. Ct. (1981) (C.A.) ................................................................... 56
Great Atlantic & Pacific Co. of Canada v Ontario (Human Rights Commission) (1993 Gen Div.) ..... 57
Wewaykum Indian Band v Canada [2003] 2 SCR 259 ........................................................................... 58
Canadian Pacific Ltd. v Matsui Indian Band [1995] 1 SCR 3 ................................................................ 60
2747-3174 Quebec Inc. v Quebec (Regie des Permis d’alcool) [1996] 3 SCR 919 .................................. 62
Bell Canada v Canadian Telephone Employees Association [2003] 1 SCR 884 .................................... 63
Imperial Oil Ltd. v. Quebec (Minister of the Environment) [2003] 2 SCR 624 ..................................... 65
CUPE v Ministry of Labour [2003] 1 SCR 539 ....................................................................................... 67
Part III: Substantive Review ................................................................................................... 68
The Modern Standard of Review – The Pragmatic and Functional Approach......................................... 68
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Commission [1979] 2 SCR
227 ........................................................................................................................................................... 69
Union des employes de service, Local 298 v. Bibeault [1988] 2 SCR 1048 ............................................. 72
Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982 ....................... 74
Dr. Q. v College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 ....................... 77
Law Society of New Brunswick v Ryan [2003] 1 SCR 247 ..................................................................... 78
National Corn Growers Assn. v. Canada (Import Tribunal) [1990] 2 SCR 1324.................................... 82
Toronto (City) Board of Education v. OSSTF District 15 [1997] 1 SCR 487 .......................................... 86
Trinity Western University v. British Columbia College of Teachers [2001] 1 SCR 772 ....................... 89
Canada (Attorney General) v. Mossop [1993] 1 SCR 554 ....................................................................... 92
Nanaimo (City) v Rascal Trucking Ltd. [2000] 1 SCR 342 .................................................................... 94
Canada (Director of Investigations and Research) v Southam Inc. [1997] 1 SCR 748 .......................... 95
Chamberlain v. Surrey School District No. 36 [2002] 4 SCR 710 ........................................................... 97
Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 [2003] 3 SCR 77 ......... 105
Part IV: Rule Making and Regulation .................................................................................. 114
Thorne’s Hardware Ltd. v. Canada [1983] 1 SCR 106 ........................................................................... 114
Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256 ........................................... 116
Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 ...................................... 120
Shell Canada Products Ltd. v. Vancouver (City) [1994] 1 SCR 231 ....................................................... 122
Operation Dismantle Inc. v Canada [1985] 1 SCR 441 .......................................................................... 128
Black v Canada (Prime Minister) (2001), 54 OR (3d) 215 (CA) ............................................................ 129
The Jurisdiction of Tribunals and the Constitution ................................................................................. 130
Cooper v Canada (Human Rights Commission [1996] 3 SCR 854 ....................................................... 130
Nova Scotia (Worker’s Compensation Board) v. Martin [2003] 2 SCR 504 .......................................... 134
Paul v British Columbia (Forest Appeals Commission) [2003] 2 SCR 585 .......................................... 139
Tranchemontagne v Ontario (Director, Disability Support Program) [2006] 1 SCR 513 ..................... 143
Standing ................................................................................................................................. 147
Standing in Judicial Review Proceedings ................................................................................................. 148
Finlay v Canada (Minister of Finance) [1986] 2 SCR 607 ..................................................................... 148
Canadian Council of Churches v Canada (Minister of Employment and Immigration) [1992] 1 SCR
236 .......................................................................................................................................................... 150
Harris v Canada [2000] 4 FC 37 (CA) .................................................................................................... 152
Energy Probe v Canada (Atomic Energy Control Board) [1984] 2 FC 138 (TD).................................. 154
The Status of the Authority Under Attack ................................................................................................ 155
Bibeault v McCaffrey [1984] 1 SCR 176 ................................................................................................. 156
CAIMAW v Paccar of Canada Ltd [1989] 2 SCR 983 ............................................................................ 156
Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner) (2005) 75 OR (3d)
309 .......................................................................................................................................................... 156
Alternative Remedies ................................................................................................................................ 159
xxi
Harlekin v University of Regina [1979] 2 SCR 561 ................................................................................ 159
Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3 ............................................................ 163
Statutory Appeals to the Courts ................................................................................................................ 165
Canada (Attorney General) v Saskatchewan Water Corporation (1993), 18 Admin. LR (2d) 91 (Sask.
CA) ......................................................................................................................................................... 167
Manitoba (Attornery General) v. Metropolitan Stores (MTS) Ltd. [1987] 1 SCR 110 ........................... 169
New Directions: Liability of the Crown in Tort – Duty to Consult and Accommodate ..... 174
Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 ............................................................ 174
xxii
Chapter 1 – The Administrative State and the Rule of Law
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Admin law is close to constitutional law because it deals with the legal regulation of governmental power
It is a branch of public law
Deals with the law governing the implementation of public programs
o Particularly at the point of delivery where they are most likely to impact persons
o Many of these programs are administered under statutory authority
 Government identifies a problem area and enacts laws to deal with it
Government is involved in the lives of people in many ways – as a result admin law is a huge area
Another factor is the offloading of services through privatization etc. – gov’t set up bodies to oversee
Examples of areas subject to admin law
o Employment – labour law, employment standards etc. oversee the operation of the labour market and regulate
what can, and cannot, occur
o Regulated industries – where the market is incapable of working efficiently the state has intervened and
created regulatory bodies  CRTC, and also in the areas of natural monopolies
o Economic activities – the state has a role to play in such things as takeovers  state looks at the effects on
competition and market dynamics
o Professions and trades – government, by statute, has created professional regulatory bodies – LSUC
o Social control – regulation of prisons (providing for early release, probation terms etc. that are heard by a
state body), immigration act issues that are overseen by regulatory officials
o Human rights – each province and the federal government have regulatory bodies to oversee HR law
Distinctions between systems can be based on the nature of the relationship they regulate
o Some programs achieve their goals by regulating a relationship between private person – HR law,
employment for example
o Other programs require government approval before certain things may occur – immigration, the practice of
law and other professions
Others are distinct in the manner in which they achieve their objectives
o Some confer benefits – health provision, income support etc.
o Others impose restrictions on activity – business licensing and land use controls
When the contest is between two private parties the regulation may confer benefits and impose controls at the same
time
Courts have seemed to be more protective of rights that are limited by statute than they are in ensuring that intended
beneficiaries actually receive their due
o Law has tended to uphold the status quo rather than to advance the redistributive and welfare objectives of
legislation
Nearly all public programs originate with a statute
Legislature will often also have a role to play in the subsequent administration of the statute
o This may occur through provisions allowing for the creation of regulations under the statute or through the
allowance for some discretionary involvement on behalf of the Minister or department
o Minister will also normally be responsible for appointing members of committees within their jurisdiction
o Some statutes provide for a right of appeal to the Cabinet from decisions of regulatory agencies that are
independent
Many programs that have a direct impact on people are administered at the local level
o But municipalities are subject to a measure of provincial control as their powers are devolved from the
province itself
Crown corporations also have a significant role to play
o Crown corporations straddle the line between government and private actors
o In many ways they are akin to private corporations however they have obligations to the state as well
 For example the government controls the funding for crown corporations
 Boards are also often appointed by the government, they are owned by the government etc.
o Crown corporations, in some regard have seemed to fallen out of favour as governments move towards more
privatization and in attempts to satisfy free trade and globalization pressures
Many private entities also fit under the admin law umbrella  they fulfill functions that, if they did not exist, would
likely have been mandated by statute
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Sports associations for example that establish rules, govern the operation of the sport and teams, and oversee
eligibility requirements
o Another example is stock exchanges which are ostensibly private but also fulfill regulatory functions
o Also have children’s aid societies that have powers conferred by the government and are often funded by the
government but they are still viewed as being independent
o Universities also fit in this area – they are tied to government but also have significant independence
Administrative tribunals take many forms
o ABC’s – agencies, boards and commissions are familiar names for them
o However not all are called by the ABC moniker and not all with the ABC moniker are administrative agencies
Common features of the most frequently encountered agencies
o Have a measure of independence from the government
 Necessary to provide for, at the least, the veneer of independence. This is needed so that people can
have faith in the decision making and also so that decision makers are free of any undue pressure
from their (ostensible) superiors in government
o Those liable to be affected by a decision are given an opportunity to participate in the process by producing
evidence and making submissions
 Openness underpins the legitimacy of the agencies and allows for a balancing of the interests of those
affected with the inherent role of government through its power to appoint etc.
o They typically operate at the sharp end of the stick  at the level where people are impacted
 However some agencies do also fulfill a policy making role
o They are specialized  they know their area of the law
 This is opposed to courts that deal with a broader array of issues from across the legal spectrum
Differences between administrative agencies
o There is a continuum of decisions made by agencies from those resembling courts to those that are closer to
political entities
 The former include agencies that make rulings on individual rights while the latter are those that are
more likely to have some type of policy making function
 Also the structure of agencies may resemble courts  the way they operate, the rules they have
o Some agencies – immigration for example – have a high caseload, while others have a low caseload
o Some make recommendations only while others make decisions
o Some have dramatic impacts on individuals – HR, ESA for example – while others have lesser impacts
o There is also a divergence in the composition of the bodies – some have one member, some have three
o Some members are full-time while others only appoint members for a particular issue or file
o Sometimes board members have significant expertise in the area while others have limited knowledge of the
area
The way that many administrative agencies operate is often quite different from the way that the courts operate – rules
of evidence, formalities etc. are often much different than in courts
The role fulfilled by many independent agencies could be filled by government departments
o However independent agencies are more capable of operating a more open process because of the lack of the
ability for political interference
o This independence is especially necessary where there is an individual in a dispute with the government 
what kind of independence would one expect from a government department in this type of situation
Although agencies are independent from government that does not mean that they are unaccountable – they still need
to report to government, they are appointed by government, and their budget is allocated by government
Reasons for going to an independent agency rather than a court
o The nature of decisions made by agencies may be inappropriate for the courts in that they are much more
governmental than judicial  since they often involve policy considerations that courts are not good at
o It may be necessary to have someone other than a judge make the decision  The level of experience and
expertise is beneficial, and also it may be possible for the decision maker to be more sympathetic to the issues
at hand
o Many of these disputes involves small amounts of money  courts cost more to operate and would be a waste
of public resources
o Decisions may be made more quickly due to the more informal administrative process  especially where
there is an imbalance of power and resources – many people could not take on the government in court as it
would cost too much but in administrative forums they can participate
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Over the past 20 years the demands on the administrative system have grown tremendously
o Budgets have not kept pace with inflation – or have been cut
o Also many more people are engaging in the process leading to higher workloads etc.
o Agencies have also faced criticism over the appointment of people to well paying jobs often on the basis of
political connections  this is so even though many capable individuals have been appointed to these
agencies etc.
There are many ways for administrative tribunals to accomplish their work
o Adjudication of issues through a more formalized process
o Creation of standards for participants
o Training and education for those falling under the umbrella of the agency
Law is engaged in public administration when things have gone wrong  if things have gone right no one cares and
no one hears about it
Even though legislatures are capable of exercising continuing oversight of agencies they are not capable of
investigating complaints from individuals about decisions made by agencies
o One tool created for this is the position of ombudsman to review the operation of agencies
 Investigates action taken in the administration of a government organization
 Can obtain information in connection with such investigation
 There need only be a complaint for the ombudsman to launch an investigation
 Can consider a wide range of potential problems with public program delivery
 Can ask that an organization provide a remedy – and if not provided can report to the legislature
 However the conclusion of the ombudsman is not legally binding
Administrative agencies have internal mechanisms for dealing with citizen’s grievances
o This can also include formal levels of appeal within the agency  some have the express power to revisit
their decisions and alter them
o Some agencies enabling legislation provides for a right of appeal
o Administrative appeal tribunals can often rehear the entire case and make a determination
If there is no legislatively created agency then a person can go directly to court – but cost concerns limit this for many
people
Many agencies have in their enabling statutes a right of appeal to the courts
o The statute will often set out what grounds of appeal are available
 For example it may be possible to appeal a decision on a question of fact, law, procedure, discretion
or other grounds
 Or it may be more limited
o On appeal a court may, on finding that an agency erred, either send the matter back or reverse the decision
 Due to the specialized knowledge of many agencies courts often show a degree of deference
o Their seems to be a pattern emerging that, absent some strong reason to the contrary, there should be a right
of appeal from an agency decision
 However this does not apply to labour relations and employment where it has been general legislative
policy to reduce the opportunities for judicial intervention
 One reason for this is because of the cost and delay involved
 Especially when one considers an employee who has little opportunity, due to financial
constraints, to pursue their case
o Even where there is no statutory right of appeal the superior courts have a general supervisory role and can
hear appeals
 Courts can review the exercise of public duties/powers
 Mainly through the usage of the prerogative writs
 Certiorari – to quash or set aside a decision
 Prohibition – to order a tribunal to not proceed with a matter
 Mandamus – to order the performance of a public duty
 Also, in some cases, have habeas corpus – to determine the legality of a person’s detention
o Since the 70’s courts have simplified the law relating to the remedies of judicial review and the accompanying
practice and procedure
Grounds of review
o Procedural impropriety  administrators must act in a way that is procedurally fair – if they do not then they
are open to challenge of this grounds
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Procedural fairness usually involves providing the opportunity to appear and make submissions and
that the decision maker will be impartial
o Illegality  if the action of the administrative agency is not authorized by law then it is illegal and the courts
will step in to prohibit it
o Unreasonableness  administrators must exercise their powers in a reasonable manner, if they do not then
they are open to review (more in Standard of Review)
o Unconstitutionality  administrative action must be authorized under the constitution
 May be challenged on the grounds that it breaches rights or that it is in violation of the division of
powers (for example that a provincial body intrudes on a federal area
 Since there is an overlap between constitutional law and administrative law it is necessary that they
the standards of each are informed by the operation of the other
One issue with administrative law is to what areas it attaches, and to what extent
o In this vein it is important to understand a couple of things
 Whether or not the Charter applies – applies only to government (university/college distinction)
 Whether and to what extent the remedies and grounds of review of administrative law apply
Rule of law and administrative law
o Rule of law is an ideal
o Involves a couple of components
 Laws must have their basis in the rule of law
 For example a law must be clear and unambiguous
 People must know what is expected of them
 Government action must be grounded in law
o Dicey and the rule of law
 Two concepts
 No one should be made to suffer except for a distinct breach of the law
 Government and citizens alike are subject to the general law of the land
 The first of these concepts has been used to attack the statutory grant of broad discretion that allows
for the restriction of individuals freedoms
 Main argument is that this discretion may be improperly used
 The second concept has provided a justification for the thought that superior courts have the ability to
oversee the operation of administrative agencies – limits the authority of government
 Also provides for law to have a role in the construction of administrative systems and
agencies
 This is also seen in the courts’ application of the same type of review of administrative
decisions as of lower court decisions when it comes to interpreting the law itself
o Functionalist critique of Dicey
 Say that Dicey misinterpreted the system of law in England that people were subject to a general law
and not official discretion
 Crown was immune from prosecution and many people did not, in fact, have rights
 Also say that his view that courts were appropriate oversight bodies could only lead to a type of
stalemate where courts could block the effective implementation of programs by obstructing their
operation
 Further stated that law and policy are intertwined – cannot separate language of a statute from the
impact that it will have on people, although Dicey would seem to say that this is possible
 Rather they look at things in a different way
 Felt that administrative agencies would take the path of least resistance and not do enough to
ensure that an effective program was implemented
 Stress the facilitative and legitimizing function of law – law allows administrative agencies to
operate and deliver programs and services
 Courts should only have a limited oversight role – should provide for significant deference to
the specialized decision making of agencies
o One critique of functionalist approach is that the public has a high degree of confidence in the courts
 Courts can provide effective oversight because of this – especially in the area of fairness and
procedural regularity
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It is appropriate for courts to scrutinize the decisions of agencies that seem contrary to the interests of
the intended beneficiaries – even though courts should show significant deference
 Even though it may be difficult to discern the true meaning of a statutory provision due to the fact
driven nature of many decisions the courts have expertise in many areas and are capable of making
determinations on statutory language
 Also, since the Charter has been enacted it is understood that certain rights are deserving of
significant protections and the courts are the best forum for ensuring that this is done
Three directions from which to approach administrative law
o The detail of the public program from which the particular dispute arises must be appreciated
 The terms of the statue, the nature of the program, and the administrative and political contexts in
which it operates
o A knowledge of the relevant legal principles and rules, both substantive and adjectival is essential for
analysing the dispute and locating it within the elements that comprise our legal system
 The common law, legislation and the constitution
o It is important to keep in view the theoretical dimensions of a problem and to be able to consider it from the
perspective of competing concepts of law and government.
Chapter 3 – The Role of Judicial Review
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One of the principal means of ensuring that the administrative process operates within the constraints of the principles
of legality is by way of judicial review
Baker v Canada (Minister of Citizenship and Immigration) 1999
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Baker is one of the seminal cases in administrative law
Facts  Jamaican immigrant who came to Canada, and was here for over 10 years. She had four children while in
Canada and also had four children in Jamaica. Suffered from schizophrenia but was better. Was ordered deported in
1992. She made an application for permanent residence status but in order to apply you needed to be outside of
Canada. She then applied for an exemption on the basis of H&C. Her application was denied by the Immigration
Board. She was solely responsible for two of her Canadian children and was in contact with the other two. Wanted
the Convention on the Rights of the Child to be considered in her application.
The Minister is empowered to make exemptions to the Act – specifically in this case the requirement that the
individual be outside of Canada when making an application
 S.114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any
regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is
satisfied that the person should be exempted from that regulation or that the person's admission should be
facilitated owing to the existence of compassionate or humanitarian considerations.
 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order
made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only
with leave of a judge of the Federal Court -- Trial Division.
 83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to
any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be
appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of
rendering judgment certified that a serious question of general importance is involved and has stated that
question.
The Convention indicates that the rights of the child are to be considered in government action
 One of the criteria in the convention is that children are not to be separated from their parents
Under the Immigration Act a right of appeal lies to the federal court. Once that appeal is heard the only grounds for
future appeal is whether or not the judge has determined whether there is a question of general importance deserving
of consideration
In this case the Federal Court dismissed the action but did state that there was a serious question of general
importance
 This question was “Given that the Immigration Act does not expressly incorporate the language of Canada's
international obligations with respect to the International Convention on the Rights of the Child, must federal
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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?"
At the Federal Court of Appeal it was held that the appeal was only to be determined on the basis of the question
 Sicne Canada had not implemented the treaty be codifying it into law there was no basis for the claim that the
interests of the children need be considered – appeal was dismissed
On appeal to the SCC there were several questions to be answered
 What is the legal effect of the stated question – what grounds does the appeal have to be on
 Were the principles of procedural fairness violated in this case
 Was the discretion improperly exercised in this case
The question
 Pushpanathan v Canada (SCC) – the question of general importance is the trigger by which an appeal is
justified. The object of the appeal is the judgment itself not just the stated question
 Court can therefore consider all aspects of the appeal not just the question
The nature of the decision
 H&C grounds will exist if unusual, undeserved, or disproportionate hardship would be caused to the person
seeking consideration
 The nature of the issue is whether or not the Minister exercised discretion appropriately
Procedural Fairness
 A duty of procedural fairness applies in this case
 Factors affecting the content of the duty of fairness
 Must consider all of the circumstances (Cardinal)
 Must consider the nature of the decision being made
o The more closely the system mirrors courts of law the greater the protections that need to be
considered
 Must consider the nature of the statutory scheme and the terms of the statute
o Where there is no appeal procedure there will need to be more procedural protections
o Same where the decision is determinative and further requests are not allowed
 Must consider the importance of the decision to the individual or individuals affected
o The more important the decision and the greater its impact the greater the necessary
protections
 Must consider the legitimate expectations of the person challenging the decision
o If there is a legitimate expectation the content of the duty of fairness will be impacted
 If the claimant has a legitimate expectation of a certain result then they are deserving
of greater protections
 Must take into account and respect the choice of procedures made by the agency itself
o This is particularly so where the legislature has left it to the decision maker to choose its own
procedures or when the agency has expertise
 Individual should have the opportunity to fairly and fully represent their case to the decision maker
 In this case there is no legitimate expectation that the interests of the children will be considered  since the
convention is not a representation of how the government is going to react to the situation
 As for participatory rights it is not always necessary for there to be an oral hearing – that determination will
depend upon the circumstances of the individual case
 For H&C an oral hearing is not a general requirement
 Allowing Ms. Baker to make submissions satisfies this participatory requirement
 One issue was whether or not Ms. Baker was entitled to the provision of reasons  she did not receive
reasons of the final arbiter but did receive the reasons of a subordinate officer who investigated the complaint
 Even if reasons are required by procedural fairness it is not necessarily necessary for there to be full
reasons provided. In this particular case it was deemed that reasons should be provided b/c of the
importance of the issue The provision of the notes of the junior officer, especially since they were
provided in response to a request for reasons, is sufficient
 Reasonable apprehension of bias
 Decision makers need to be free of bias, or perceived bias
 The notes of the junior officer were replete with bias in the manner in which they were written etc.
As such they do not hold up to the question of bias
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A reasonable member of the public would not be able to view the officer’s comments as
being free of bias
o The comments indicated that the officer was making conclusions unsupported by the
evidence – even contrary to it – and that he was predisposed to rejecting her application
o It would appear that his own frustrations went some way towards his decision in the case and
should be questioned
Review of the Minister’s Discretion
 Discretion relates to issues where the law does not dictate a set outcome – there is a choice for the decision
maker to make
 Discretionary decisions must be made within the bounds of the jurisdiction conferred by statute
 However considerable deference will be afforded to decision makers
 Discretion must be exercised in a manner that is within a reasonable interpretation of the margin of
manoeuvre contemplated by the legislature in accordance with the principles of the rule of law
 Most administrative decisions involve discretion of one form or another
 There are three standards of review that are available to the courts
 Paten unreasonableness – if patently unreasonable then new hearing
 Reasonableness – was the decision reasonable – if no then new hearing
 Correctness – was the decision correct – if no then new hearing
 In determining which standard applies need to look at
 Expertise of the decision maker
 Nature of the decision being made
 The language of the provision and surrounding legislation
 Discretion is constrained by the boundaries of the statute, the principles of the rule of law, the fundamental
values of Canadian society and the principles of the Charter
 The standard of review in this case
 Need to consider a number of factors
o Presence or absence of a privative clause
 Where there is none then a lower standard is appropriate
o Expertise of the decision maker
 Greater expertise = greater deference
o The purpose of the provision in question  and of the Act as a whole
 Purpose is to exempt people – there is a high degree of discretion leading to greater
deference
 But the decision relates to the rights of an individual
o Nature of the problem in question
 Does the question relate to the determination of law or facts
 If law = less deference, if facts = greater deference
 In considering these factors, and reaching a decision on the standard of review, it is necessary to
balance all of these factors
 After balancing all of these factors the court determined that the appropriate standard of review was
reasonableness
 Question became – was the decision unreasonable
o Unreasonable decision is one that is not supported by any reasons that can stand up to
somewhat probing examination
 Failing to consider the impact of the decision on the children made this an
unreasonable decision  notwithstanding the deference that should be accorded in
this situation
 The decision of the immigration officer was inconsistent with the values underlying
the grant of discretion
 As a result the decision cannot stand up to a somewhat probing examination
 A reasonable exercise of discretion requires close attention to the impact of the
decision on the children in this case
 Court also looked at the objectives of the Act
 To facilitate the reunion in Canada of Canadian citizens and permanent residents with their close
relatives from abroad
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International law also has some role to play though it is not determinative
o Canada ratified the convention so it should be given some weight in the determination of the
issues in this case
 Also a look at the Ministerial guidelines supports the inclusion of the rights of the children in the
determination of the matter
o Interests of the children are an important component of this
o Although there is no right on behalf of the applicant that a specific decision will be reached
but legitimate expectations goes to the fact that the rights of the children should be considered
The rights of the children need not be a primary consideration but they must be one of the considerations that go to
making the determination in this particular case
Because of the breach of procedural fairness there should be a new determination in this case
Part II – Procedures
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From the traditional judicial review perspective administrative law has dual concerns:
o The process by which a decision is reached
o The merits of the decision
Courts have claimed that they have the ability to resolve procedural issues that arise or have arisen in administrative
decision making
One issue is what line is to be drawn between procedural issues and substantive ones
Procedural issues have had a major role in the development of judicial review law
Procedural issues provide a useful vehicle for revealing the nature, structure and extent of the administrative process
than a study of the merits of administrative decision making
The distinction between judicial and administrative functions often led to a distinction between rights and privileges
Where a privilege – such as a license was in issue – then judges would hold that there was no need for a hearing b/c of
the privilege
Canada never got this extreme  this was from the UK
In Calgary Power v Copithorne (1959) the SCC held that the absence of any statutory duty to act judicially meant that
it was not necessary  in that case a man had property expropriated without a hearing
English law moved away from this strict interpretation in the case of Ridge v Baldwin (1964)  in that case the
House of Lords held that a constable dismissed only for cause was entitled to a hearing
o In that case Lord Reid held that the mere fact that rights were being affected was sufficient, on its own, to lead
to an imposition of a duty to comply with the rules of natural justice
o After this case the principles of natural justice did not only apply to judicial considerations but to all,
including administrative proceedings
Chapter 4 – Fairness: The Threshold
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Cooper is a case that is over 100 years old but that provides the basis for the development of fairness in administrative
decision making
Cooper relied to some extent on Dr. Bentley’s case (1723) in which Bentley had his degrees removed by Cambridge
and his status taken away.
o He challenged this on the basis of his not being allowed an opportunity to present his case
o In the judgment the judge even referred to the fact that even Adam and Eve had a hearing in front of God
In Cooper and Bentley the nature of the issue was a property right and that the decisions resulted in a finding that a
wrong had been committed leading to a penalty
Until the 1960’s the view that where a “right” was involved and a penalty was subsequently imposed dominated
procedural fairness law
These early cases involved “public” or quasi-public actors  however recent developments have seen the doctrine of
procedural fairness evolve and be applied to private entities in addition to public ones
It once was that unless the nature of the decision involved was judicial the courts would not hear the case
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Administrative or ministerial functions would not draw the attention of the courts  they did not carry any
obligation to adhere to the principles of natural justice
Lord Hewart of the House of Lords  for the rules of natural justice to be imposed and for certiorari and prohibition
to be available it was necessary that the respondent have “legal authority to determine the rights of subjects” as well
as the superadded characteristic of “a duty to act judicially”
o The first part of this was taken to preclude the possibility of applying the rules of natural justice in situations
where the respondent was not acting in a final and determinative manner
 It was also taken to create a distinction between matters of strict legal rights and mere privileges
o The second part was more troublesome
 It was not sufficient to find that rights had been impacted – or removed – but rather that there had to
be a basis for finding that there was a superadded duty to act judicially
 What this added condition often meant was a return to a look at the statute to determine
whether or not there was a basis in it for a hearing to be held
D.M. Gordon
o An administrative tribunal creates rights and liabilities through policy and expediency
o A judicial function is the determining of pre-existing rights and liabilities through the application of a fixed
objective standard
o “A judicial tribunal looks for some law to guide it: an administrative tribunal, within its province, is a law
unto itself”
In the 1960’s there began a move away from this to the acceptance that fairness in administrative proceedings was
necessary
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Cooper v Board of Works for Wandsworth District (1863)
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A by-law made it mandatory to provide the town with 7 days notice if you were to build a house
Cooper was a house-builder who claimed to have sent in the notice
The town claimed that it did not receive the notice and it tore down the house without giving Cooper any notice of its
doing so
Judgment
o There is an accepted practice that even though the statute does confer this power on the town to tear down the
house that it shall not be done without the builder having an opportunity to be heard
o The amount of power in the section – to tear down a house regardless of value, of percent of completion etc. –
is a significant amount of power
o The board ought to have given notice
o There would be no harm to the board should it allow for the opportunity to be heard, but there are a number of
advantages to be had
o No man shall be deprived of his property without being heard
 This is a oft-heard principle
 Some say it is to be limited to judicial proceedings
 But that does not make sense
 The presence of an appeal clause does give the proceeding a judicial quality
 Because on appeal each side has an opportunity to be heard
Nicholson v Haldimand-Norfolk (Regional) Police Commissioners (SCC – 1979)
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Nicholson served as a police constable for 15 months and was discharged by the board without an opportunity to
make submissions
The Police Act says that no constable is subject to any penalty except after a hearing – except if it happens within the
first 18 months
Judgment (Laskin)
o A constable who serves more than 18 months is protected, one who serves less is not
o Also addressed whether one holding an “office at pleasure” should be afforded the protection of being heard
 at that time there was no provision as an office holder at pleasure could be dismissed at any time
o Although the appellant cannot claim the same protections of one who has served 18 months that does not
mean that he cannot claim some protections
 He should be treated fairly – not arbitrarily
o There is an emerging consensus that in non judicial decision making there is a duty to act fairly
9
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What lies behind this fairness is the idea that it is difficult to determine when exactly a decision is judicial,
quasi-judicial, or administrative
 In all of these circumstances there is no good reason why one would not expect to be treated fairly
o To provide some of these with protections while not doing the same for others does not make sense
o The consequences are often serious regardless of their classification
o In this case the consequences are serious
o He should have been told why his services were no longer required, and he should have been given an
opportunity, either orally or in writing to respond
o Once the appellant had a chance to respond then the Board could have made its determination of the matter
and been free to decide as it would
Dissent (Martland)
o The decision here was that the board no longer wanted to continue to employ the appellant
o It was their right to determine whether or not they wanted to continue to employ him – his position was
probationary – it means that he is on probation, they could terminate him at will – they did this, it was
administrative in nature
o Board could have allowed him an opportunity to be heard, but it did not, it did not breach any duty
Martineau v Matsqui Inmate Disciplinary Board (1980 – SCC)
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Two inmates were disciplined and they alleged that they were not given a hearing
The courts had traditionally not looked all that kindly upon prison discipline
They applied to the Federal Court of Appeal but were denied because the court did not have jurisdiction
They made an application for certiorari but were denied because of the argument that it only applied to judicial or
quasi-judicial functions
Dickson in a set of conclusions to his judgment
o The fact that a decision maker does not have a duty to act judicially does not mean that there may not be a
duty to act fairly
o Although the discipline board is not a judicial authority it does have the duty to act fairly
o Not every breach of prison rules of procedure will bring court intervention because the issue is not whether
prison rules have been breached but whether the duty to act fairly has been breached
o The content of the principles of natural justice and fairness will vary on a case by case basis
o The simple question is whether the decision maker acted fairly in making its decision
Cardinal v Director of Kent Institutions (1985 – SCC)
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Court decided that a hearing was required for a decision by prison officials to keep a prisoner dissociated for security
reasons
Said that there is a general common law principle that a duty of procedural fairness exists for every public authority
making an administrative decision which is not of a legislative nature and which affects the rights, privileges, or
interests of an individual
o Important to note the distinction between administrative and legislative decisions
There was an argument that regardless of a hearing or not the decision of the authorities would have been the same
o Court responded that the denial of a right to a fair hearing will always render a decision invalid
o This is because the right to a fair hearing is an independent right that exists outside of the circumstances of the
particular case
Knight v Indian Head School Division No 19 (SCC – 1990)
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Knight was the director of education for the school board and was fired when he would not accept a new contract for a
shorter period than the original contract of employment
SCC said that there did not have to be cause for his dismissal and he argued that he was entitled to procedural fairness
before being dismissed
Court split 4-3 against him with the majority saying that he was owed procedural fairness but the board had met its
duty while the minority said that there was no duty owed to him
Majority
o Even though there need not be cause for his dismissal does not mean that he could be treated arbitrarily
o The duty of fairness extends from the fact that the employer was a public body
o The existence of a duty to act fairly will depend on three factors
10
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The nature of the decision made by the administrative body
 Do not need to distinguish between judicial, quasi-judicial and administrative
 Not all administrative bodies are under a duty to act fairly
o Because of the transfer of legislative powers to administrative bodies  b/c
legislative decisions do not have the duty imposed on them
 A preliminary decision will not generally trigger the duty, a final decision will
 This decision was a final one  could lead to a duty to act fairly
 The relationship existing between that body and the individual
 There are three main categories of employer-employee relationship
o Master-servant  no duty to act fairly
o Office held at pleasure  no duty to act fairly since office holder can be terminated
at any time for any reason
o Office from which one cannot be removed except for cause  there is a duty to act
fairly
 In this case it was not a pure master-servant relationship but rather of the second type
 This does not mean that there can never be a duty to act fairly especially with the evolution
of administrative law in Canada in recent years
 Fairness could be applied and mandate that the one being terminated has the ability to make
their case
 Also in cases such as this the public has the right to have some knowledge of the decision and
to know that the decision is being taken fairly
o Because the decision is based upon statutorily delegated powers
 Even though the office is one held at pleasure there is a duty to act fairly
 The effect of the decision on the individual’s rights
 There is a right to procedural fairness only if the decision is a significant one and has an
important impact on the individual
 The loss of employment against one’s will is a significant decision that could justify the
imposition of a duty to act fairly
o Taking all of these factors into consideration there is a duty to act fairly
o Must then turn to the Act allowing the board to do what it did to see if there is either an express or implied
condition allowing it to act as it did  there is not
o The Act refers to the contract of employment for terminating employees
o Under employment contracts there is a duty to act fairly  therefore the board should have acted fairly
o The concept of procedural fairness is variable depending upon the circumstances involved
o In this case the provision of reasons and an opportunity to be heard would have satisfied the duty  Knight
was provided with both of these, the duty was made out, and procedural fairness was satisfied
Minority
o There was no duty of fairness on the board
 Since the employment relationship was that of an officer holder at pleasure the duty did not extend to
Knight
 Does not mean that it would never extend to those in this type of employment relationship just that in
this case it did not
In emergencies it is not necessary to have a hearing before a right is taken away  but in most emergencies there is
an opportunity for a hearing after the right has been taken away to determine whether or not it should be restored
A purely ministerial decision, on broad grounds of public policy will typically afford no procedural protection  any
attack on it will have to be made upon the basis of abuse of discretion
o This also applies to public bodies exercising legislative functions
Canada (Attorney General) v Inuit Tapirisat of Canada (1980 SCC)
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CRTC regulates Bell’s rates, an appeal on question of law lies to the courts, and the Cabinet may vary any order of the
CRTC
Bell applied for a rate increase in 1976 and the IT intervened because they wanted conditions imposed on Bell to
provide better service in the North
11
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IT did not get a favourable decision and appealed to the Cabinet
o There was no question of law, just did not like the decision
o The Department of Communications received the materials, provided its analysis and how it felt the appeal
should be handled  forwarded this to the Cabinet but IT was not given any of it
o IT applied to the courts requesting that it be given a hearing which it felt it should have had
o Federal Court Trial division ruled against them, FC CA for them, and gov’t appealed to SCC
The Governor in Council has complete discretion to dispose of matters that come before him
There is no reason for the Governor in Council to give reasons, to hold a hearing, or to even acknowledge receipt of a
petition
Parliament has turned its mind to the situation and allowed for the Governor in Council to have complete discretion in
this matter
Homex Realty (1980 SCC)
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Quarrel over who would install services in a subdivision being built by Homex. Municipality passed a zoning by-law
that made it impossible to convey the properties in question – went to the SCC
Judgment
o The Village passed two by-laws that directly and detrimentally affected the lands of Homex and only the
lands of Homex
o There was no notice served on Homex about these changes
o One argument put forth by the Village was that it was exercising a public function and that it was only a
question of public interest
o But that would lead to anomalous results whereby a situation where there were only competing private
interests or one private and one public and only one party could avail itself of any protections
o Just because there is a public interest at play does not mean that there is no procedural protection
 Even if notice would lead to the party attempting to take steps to avoid the hearing that is something
more properly dealt with through a change in the legislation
o Duty of fairness applies to any situation in which a public body acts in such a way as to limit or take away the
rights of an individual
o The decision of the Village was not legislative but more quasi judicial and attracts fairness concerns
A vital consideration in this case was the fact that the decision targeted only one party – Homex and that no others
were impacted by the decision
Bezaire v Windsor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 (Div. Ct.)
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Faced by a financial crisis the board decided to close 9 schools  while there was an awareness in the community
that such a step could be taken the affected parents and students had no opportunity for input into the ultimate
decision though there was a form of consultation after the decision was made
Board took the position that there was no obligation on the school board to act fairly in exercising its administrative
power to close a school
o Based this on the Vanderkloet Case (Court of Appeal)
o In that case the board had reorganized schools (3 of them) by having all students up to Grade 2 attend one
school and all junion and intermediate age children attend the other schools  did not close a school
o In court of first instance the judge held that it was a school closing and attracted procedural fairness
o On appeal said it was not a closing and that a board acting in good faith has complete power over reallocation
of students within a district  “I am not satisfied that the principles of procedural fairness are applicable to a
board of education, an elected public body, who, in good faith and within the jurisdiction assigned to it by the
Legislature, resolve to reallocate the student body within its school district”
There is nothing in Vanderkloet to suggest that it would apply to a school closure case  the guidelines issued by the
Minister are clearly premised on the principle that the closing of a school is a community issue to be dealt with by the
community as a whole and not just the Board
In this case the Board had not followed either its own, nor the Ministerial guidelines
o This resulted in a denial of procedural fairness for the students and parents of the affected schools
12
Canadian Assocaition of Regulated Importers v Canada (Attorney General) [1993] 3 FC 199 (TD), rev’d., [1994] 2 FC
247 (CA)
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Issue was a ministerial decision changing the quota distribution system for the importation of hatching eggs and
chicks, a change that significantly affected historic importers
Traditionally a decision has been classified as being of a legislative nature if it sets out general rules which apply to a
large number of persons
This is counterposed to a decision which affects one specific individual
I am not convinced that even in the pre-Nicholson era this decision would have been classified as being legislative in
nature
I think it is sufficient to state that the Minister was exercising a statutory function  while the decision may have
been general the impact was specific
o The effect of the decision was to cause significant economic harm to the applicants and others
I have not been referred to any authority on the common law right to import
o At the same time I do not think that the classification of the applicant’s interest as a right is necessary in order
that they should be accorded an opportunity to make comments and representations with respect to the
particular quota system which was being adopted before it was imposed
 As I read the jurisprudence it is not necessary to find a right exists in order to bring an application for
judicial review
Although the applicants may not have a right to import they have for many years had been importing in an
unregulated market  they have established a sufficient interest  sufficient enough to found a claim for review of
the Minister’s decision
The requirements of fairness will vary with the circumstances
o Not everyone should have been given notice of the proposed changes  but some form of general notice, at
the least should have been given
 Even the umbrella organizations were not provided with notice
o The rules of fairness, at the least, require that the persons affected by the decision should at least have notice
and an opportunity to respond
Classifying a decision as policy does not necessarily immunize it from review
Appeal Court decision
o Generally the rules of natural justice are not applicable to legislative or policy decisions
o More particularly it has been held that the principles of natural justice are not applicable to the setting of a
quota policy although they may be to individual decisions respecting grants of quotas
o I can see no reason to differentiate the situation where, as here, it is a Minister rather than a Board that is
establishing the quota
o Some may be damaged while others may gain by such a quota but the exercise is essentially a legislative or
policy matter with which courts do not normally interfere  any remedy would be political, not legal
 It may have been considerate for the Minister to give the respondents notice and an opportunity to be
heard, butu he was not required to do so
Decisions Affecting Rights, Privileges or Interests
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When LeDain spoke in Cardinal about decisions affecting “rights, privileges or interests” attracting the duty of
fairness it is quite possible that he was doing to not for the purposes of setting up a test in which “rights, privileges or
interests” stood in contrast to some lesser form of claim but raher he may have been using this term in a positive or
expansive sense to indicate that the old law had ceased to be part of the terrain
o That it was no longer necessary to establish that a “right” was affected but that mere privileges and interests
also qualified to attract the duty of fairness
Looking at it another way  he may have intended this basis for a claim to procedural fairness to be a compendious
one and not to be disaggregated with the excluded category being those decisions that were of a general nature and
that did not focus specifically on the individual or discrete group of individuals
Even if the threshold no longer depends on the distinction between rights on one hand and mere interests and
privileges on the other the extent of the duty can depend on this distinction
13
Re Webb and Ontario Housing Corporation (1978), 93 DLR (3d) 187 (Ont. CA)
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Webb and her children were tenants in subsidized housing  landlord recommended termination of the lease because
of problems with her children and the termination was approved by the Ontario Housing Corporation and its Board of
Directors. Webb made an application for review of the decision to terminate her lease, the application was dismissed
and she appealed
O.H.C. is not given either the power or the obligation under the governing legislation to act judicially or quasijudicially. In the instant case it did not determine the appellant's eligibility for welfare
In my view the Board of Directors was not a tribunal here exercising a statutory power of decision conferred by an
Act of the Legislature where it was "required by or under such Act or otherwise by law to hold or to afford to the
parties to the proceedings an opportunity for a hearing before making a decision".
o As a result the power to terminate did not fall under the SPPA
Equally, I do not accept the argument that there was here a quasi-judicial act which, at common law, required the
strict application of the audi alteram partem principle so that the appellant was entitled to be notified of and to attend
at the Board or other meeting called by O.H.C. or its representatives to respond to the allegations made against her
family prior to the final determination by the Board of Directors
The submission that is made is that O.H.C., even if acting administratively, was required to treat this appellant
"fairly".
Should the respondent have the right, without notice or "hearing", to deprive the appellant of a benefit, granted by it in
the carrying out of a public interest and, substantially, as an ancillary to the appellant's established welfare status?
Such a proposition, submitted on behalf of the respondent, requires close examination.
It is clear in the instant case that the appellant is a welfare recipient who was accepted as a tenant because of the fact.
It is common ground that the appellant would not secure a three-bedroom apartment for $95 a month rent in Toronto,
other than as a tenant in publicly-subsidized housing or as a matter of benevolence
Once the appellant became a tenant she acquired a very real and substantial benefit because of her reliance on and
eligibility for welfare. The determination to grant her this benefit was made when she was accepted as a tenant. That
decision was one which, in my view, could be made by O.H.C. without any intervention of a rule or principle of
procedural "fairness". However, once she became a tenant and thus "qualified" for and received the very real benefit
of a reduced and subsidized rent, the situation changed
As pointed out by Le Dain, J., in the recent case of Inuit Tapirisat of Canada et al. v. Governor-in-Council (released
November 17, 1978) 24 N.R. 361, what is in issue in these cases is what is appropriate to require of a particular
authority in the way of procedure, given the nature of the authority, the nature of its power and the consequences of
the exercise of that power to the individuals affected, and, I would add, the nature of the relationship between the
authority and the individuals affected
In my opinion, O.H.C., in exercising its power of termination and thereby depriving the appellant of the benefit of the
lease, was required, under the circumstances, to treat the appellant fairly by telling her of the complaint(s) or case
against her and giving her an opportunity, if she wished, to make an answer to those complaints.
The newly developing extension of the principle which I have recited is there equally to protect those who, because of
their disadvantaged economic and social condition, are in the greatest need of protection from arbitrary and
unconscionable acts of public authorities
If no notice is given to a person who, as a result of an investigation by a public corporation in carrying out a public
obligation, is in danger of losing an important benefit, and no opportunity is afforded to answer the "case" against
him, such a procedure, in my view, would be unfair
So long as the person adversely affected is advised of the case against him and is permitted to give an answer through
the servants or agents of the investigating body, that is sufficient, unless there is evidence of improper bias on the part
of the servant or agent or evidence that the answer, if made, did not reach the body making the decision or
determination.
On the material which we have I am of the opinion that O.H.C. did treat the appellant fairly. It let her know of the
complaints and gave her an opportunity to remedy or answer them. There surely has to be some affirmative evidence
that she did not know of the complaints or that she did answer them and the answer (or answers) was not considered
by O.H.C. Such evidence is completely lacking in the case and indeed, as stated, the evidence is to the contrary
The appellant has succeeded in establishing, on the facts of this case, that there was an obligation on O.H.C. to treat
her "fairly" in the conduct of its investigation and before terminating her lease. However, the evidence discloses that
she was treated "fairly" as that word is now understood in its application to cases such as this. Accordingly, the appeal
must fail and is dismissed without costs
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At one level, Webb may be seen as progressive in that it at least recognizes that the holders of various forms of state
assistance are entitled to some measure of procedural fairness before assistance is cut off or removed
o They are no longer prevented from making such a claim on the basis that government benefits are a matter of
privilege as opposed to a right
Aside from the serious questions about whether holders of government assistance have the resources to consistently
secure judicial enforcement of their procedural claims, Webb does not eliminate entirely the vestiges of the old
hierarchy of claims or interests
o Once the initial threshold is crossed rankings of interest still play a significant role in the assessment of what
procedures are due
Hutfield v Board of Fort Saskatchewan General Hospital District No. 98 (1986), 24 Admin. LR 250 (Alta. QB)
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Hutfield had applied to be appointed to the medical staff of the Hospital  the application was forwarded to the
college which accepted him but the hospital rejected him. He applied again and the application was not sent to the
college  the appointments committee considered the application, without giving Hutfield an opportunity to appear
and gave an oral adverse recommendation. Hutfield asked to appear before the committee but was refused and the
Board again refused his application and refused to provide reasons. He applied for certiorari to quash its decision and
mandamus to compel a reconsideration
It is true that there are few judicial decisions evidencing the availability of certiorari, or the imposition of a duty to act
judicially or fairly, when the exercise of the public duty has resulted not in the revocation or modification of a
permission or licence, but in a refusal of a grant of permission or licence in the first place
o In the latter situation, there has been a tendency to grant prerogative relief or impose such a duty only where
there is some special circumstance
Another example is found in recent English cases which have held that judicial review will protect enhanced
procedural protection when there is on the part of the applicant a "legitimate expectation" of obtaining the permission
sought, as compared with a mere hope of success or benefit
Another example is where the public authority is required by statute to have regard only to certain specified matters
and the applicant has a legitimate expectation of obtaining the permission unless certain adverse findings are made
against him in regard to those matters (e.g. the character and suitability of an applicant for a certificate of consent in
relation to a gaming licence)
where a decision merely refuses to grant the applicant a right or position which he seeks, such as membership of an
organization, or a licence to do certain acts, the applicant, particularly if he has had previous licence applications
which have been unsuccessful, had no legitimate expectation of success
There are, however, cases in which the rules of natural justice were applied, and certiorari was held to be an
appropriate remedy, where what the complainant had sought was in the nature of an initial licence or permission
A distinction in kind between the scope of judicial review and the expected standards of procedural fairness in the
case of the modification or extinguishment of existing rights and interests, and the scope of judicial review and the
expected standards of procedural fairness in the case of an application for a permission or consent not previously
enjoyed, is a distinction that is not founded in principle
However, that notion no longer governs, in light of:
o (1) the recognition that it is not only rights but "interests" that the courts will protect.
o (2) the recognition that certiorari is available not only where there is a duty to act judicially but also where
there is a duty to act fairly
o (3) the recognition that where there is a duty to act fairly, the content of that duty will vary from one situation
to another.
o (4) the artificiality of the distinction drawn in the recent English cases cited, that have pushed the frontiers of
judicial review and procedural fairness outward but have limited them on grounds ("legitimate expectation"
and "slur") that do not reflect a principle that can withstand scrutiny in the light of the object of judicial
review by certiorari
Three additional elements that may be present, and in this case are present, that will invite an inference that there is a
duty to act judicially or fairly, and that certiorari will be an available remedy, are as follows
o (1) Sec. 11(3) of the By-laws require the Chief of Staff and the staff committee to "investigate the credentials,
training, suitability, experience and references of the applicant".
o The nature of the specific matters that the By-laws require to be investigated by the Committee, and which as
I shall point out must be the subject of reasons in the recommendations to the Board, and must by implicati-on
be in issue before the Board, gives rise to the following observation: Where a refusal of a licence casts a slur
15
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on the applicant's reputation or financial stability the duty to act fairly may well require that the body should
offer an opportunity for a hearing
o (3) The general interests of the public may be, and in the present case, are affected by the decision of the
Board to grant or not to grant hospital privileges to Dr. Hutfield. A refusal of hospital privileges to him
undoubtedly impairs his ability to provide that level of medical diagnosis and treatment that his licence as a
member of the College of Physicians and Surgeons entitles the public to assume is within his professional
reach
These diverse strands of development of the principles applicable to the availability of certiorari as a remedy, and to
the procedural standards that are expected of a body exercising a public duty pursuant to statute, may be blended into
the following statements of principle: Such a body, if its decision will modify, extinguish or affect a right or interest
of a person when that person's rights or interests are being considered and decided upon in a way that is in law or for
practical purposes final or final subject to appeal, must adhere to procedural standards the precise nature of which will
depend upon the nature and extent of the right or interest.
This will be so whether the body vested with the statutory power is effectively accountable for the exercise of its
power to the executive arm of government or to an appellate body, and whether or not there is some reason, founded
in principle or expedition or in a need for confidentiality or in some other factor, that dictates a particular procedural
standard
A failure on the part of the adjudicating body to attain the procedural standards that are appropriate to the particular
situation will attract quashing of the decision by the remedy of certiorari and, if though necessary or desirable, the
remedy of mandamus in aid
The Board has no duty to grant hospital privileges to an applicant such as Dr. Hutfield, in the sense of a duty
correlative to a right resting in Dr. Hutfield to have hospital privileges.
o There is no such duty and no such right even if Dr. Hutfield is professionally qualified.
o In terms of the recent English cases, it cannot even be said that he had a legitimate expectation of being
granted hospital privileges by the Board; at best he had a hope of benefitting from the Board's decision on his
application.
o Nevertheless, there is no doubt that his professional interests would be affected by the decision.
o Moreover, if the staff committee recommends that he be denied hospital privileges, it is a justifiable inference
that there has been a finding adverse to him in regard to one or more of his "credentials, training, suitability,
experience or references", and such a recommendation therefore casts a slur upon his reputation
For those reasons, in my view, Dr. Hutfield's interests are affected sufficiently directly and substantially that, if the
appropriate standards of procedural fairness have not been complied with by the medical staff committee in the first
place, or by the Board in the second place, certiorari is available to quash its decision
The judge concluded that the boar should have given reasons for its decision  also said that the second application
should have been sent to the college and also the appointments committee should have given a written report with its
reasons
o The case was affirmed on appeal
Legitimate Expectations
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This is one area that has gained in importance in recent years
In certain circumstances procedures will be required by reason of expectations generated in an affected person and not
entiretly contingent on a detached analysis of the statutory power in question
There are many reasons for the emergence of this doctrine  look to Ridge v Baldwin (English case)
British courts seemed to view procedural fairness as an all or nothing approach  it either applied or it did not
Courts took the view that legislatures either intended courts to infer there to be procedural fairness where none were
explicitly included or that they would not have forgotten to include them had they thought about them
o This does not really seem to make a whole lot of sense
The early use of legitimate expectations seemed to be limited to a sort of middle ground between those cases of
someone seeking a license or permission and those of someone from whom a license or permission was being
removed, typified most commonly by an application for renewal
Liverpool Taxi Fleet Operators’ Association  Denning
City officials had given an undertaking to the taxi association that the number of taxi licenses would not be increased
without a hearing and even after a hearing without an Act of Parliament
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Denning was prepared to make these undertakings and conduct the foundation of a requirement that the association be
heard or consulted if the corporation was of a mind to not follow through
This laid the ground for the modern legitimate expectations doctrine
CUPE v Ministry of Labour [2003] 1 SCR 539
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Ontario had a long-standing policy of appointing arbitration panels to hear disputes in the nursing home sector. Was a
three member panel  one employer and one employee representative and the two would choose the third. If they
could not agree then the Minister would appoint the third member from a list of mutually agreeable arbitrators. The
government just went ahead and changed the way that it did things and appointed retired judges to head the
arbitration panels  judges who had no particular expertise in labour relations, there was no consultation with the
parties and the unions applied for judicial review
¶131 - The doctrine of legitimate expectation is "an extension of the rules of natural justice and procedural fairness
(CAP)
It looks to the conduct of a Minister or other public authority in the exercise of a discretionary power including
established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified, that
has induced in the complainants (here the unions) a reasonable expectation that they will retain a benefit or be
consulted before a contrary decision is taken. To be "legitimate", such expectations must not conflict with a statutory
duty
The Court of Appeal concluded, at para. 105, that "the Minister interfered with the legitimate expectations of the
appellants and other affected unions, contrary to the principles and requirements of fairness and natural justice" and
ordered the Minister to restrict his appointments to the s. 49(10) roster.
In my view, with respect, the conditions precedent to the application of the doctrine are not established in this case.
The evidence of past practice is equivocal, and as a result the evidence of a promise to "return to" past practice is also
equivocal
The evidence shows, I think, that the "system" varied, both from Minister to Minister, and during the tenure of
particular Ministers
As previously noted, there is no mention in the HLDAA of s. 49(10) even though numerous other sections of the
Labour Relations Act, 1995 are explicitly referenced. Whether or not successive Ministers or their delegates limited
themselves to the list seems to have been a matter of policy and individual preference. I agree that the evidence
[page605] shows frequent resort of successive Ministers to the s. 49(10) list, but it equally shows considerable
variation, which suggests that successive Ministers did not consider such resort to be obligatory. Moreover, as stated,
not everyone on the s. 49(10) list, which was addressed primarily to "grievance" arbitrators, was thought by the parties
to be suitable for "interest arbitrations".
There thus appears to be no compelling basis in the evidence to restrict the HLDAA to the roster of candidates
compiled under s. 49(10) of the Labour Relations Act, 1995
To bind the exercise of the Minister's discretion the evidence of the promise or undertaking by the Minister or on his
behalf must generally be such as, in a private law context, would be sufficiently certain and precise as to give rise to a
claim for breach of contract or estoppel by representation
In my view, the evidence does not establish a firm "practice" in the past of appointing from a HLDAA list, or from the
s. 49(10) list, or proceeding by way of "mutual agreement". A general promise "to continue under the existing system"
where the reference to the system itself is ambiguous, and in any event [page609] was stated by the Minister to be
subject to reform, cannot bind the Minister's exercise of his or her s. 6(5) discretion as urged by the unions under the
doctrine of legitimate expectation
Legitimate expectations doctrine
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Where one has a legitimate expectation that one will get an opportunity to be heard then that is what one should
receive
o This expectation may arise out of a representation that one will be given a hearing or out of the past practices
or a combination of the two
There is no such thing as a legitimate expectation as to the outcome of the hearing itself just that one may have an
expectation as to the actual hearing taking place
Where the party has been led to believe that they will have an opportunity to be heard before their rights will be
affected then they have recourse available (Old St. Boniface (SCC))
17
Reference Re: Canada Assistance Plan (1991 SCC)
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Canada and the provinces had entered into agreements about the CAP whereby they shared funding for social
programs with the federal government transferring money to the provinces
The federal government unilaterally reduced transfers  the agreement stated that they would remain in effect until
such time as the relevant provincial law was in effect subject to termination by consent or on one year’s notice by
either party
BC went to court arguing whether legitimate expectations precluded the government from doing this without consent
At BC Court of Appeal it was found that it was an illegal move by the federal government as it violated the agreement
and the legitimate expectation of the BC government since there was no consent to the move
SCC held that to require consent of BC prior to allowing the federal government the right to change the plan amount
to the creation of substantive rights and that the doctrine of legitimate expectations did not create substantive rights it
merely goes to procedural fairness. At most what would be required was consultation
Additionally the rules regarding procedural fairness do not apply to bodies exercising purely legislative functions
Formulating a bill by the government is a legislative matter and is something with which the courts will not meddle
If legitimate expectations were to be applied to prevent the government from introducing legislation in Parliament
then government would be paralyzed
Furey v Roman Catholic School Board for Conception Bay Centre (1991 Nfld.)
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Facts
o
Board decided to close an elementary school  parents tried to get the decision quashed because they had not
been consulted in violation of procedural fairness
o A few years earlier when the issue had arisen, parents had been consulted about school closings
o At that time the board consolidated two schools but still left the school they now wanted to close, open
o Later on, 1991, after discussion paper the board decided to close the school
Decision to close a school is a decision for a school board alone
The Department of Education had issued guidelines for dealing with school closures  were not followed in this case
Newfoundland legislation is silent on whether or not procedural fairness needs to be applied to school board closings
The decision to close the school was administrative and in no way legislative
The fact that the school consulted with parents in 1989 raised the expectation that in the future they would be
consulted, the failure to do so was a violation of procedural fairness
The decision to close the school was quashed
But on appeal the decision was overturned since the Court of Appeal found that two of the 13 parents stated in the
affidavits that they did not think the old procedures would be followed in this case
Mount Sinai Hospital v Quebec (Minister of Health and Social Services) (2001 SCC)
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The hospital had been operating for many years in violation of its license
It was supposed to be a long-term facility but it had been operating as a short and medium-term facility instead
Discussions occurred through which it was agreed that if the hospital relocated its license would be regularized
The hospital raised money, moved but was denied a new license  there was a new government and a new minister
who denied the new license since to approve it would mean that the government would have to commit to additional
financial support to the hospital, something the government did not want to do
Decision
o Majority of SCC held that the decision of the earlier minister bound the Crown to grant the new license,
others saw it as patently unreasonable to deny the new license
o Majority
 Doctrine of legitimate expectations looks to the conduct of the public authority in the exercise of its
power including established practices, conduct or representations that can be characterized as clear,
unambiguous and unqualified
 The expectations must not conflict with the public authority’s statutory remit
 Legitimate expectations may be regarded as an extension of the rules of natural justice and procedural
fairness which may afford a party affected by the decision of a public official an opportunity to make
representations in circumstances in which there otherwise would be no such opportunity (from Old St.
Boniface)
18
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The doctrine of legitimate expectations is limited to procedural relief  even though it may be
difficult in some cases to distinguish the procedural from the substantive
At the Quebec Court of Appeal it was held that the Minister was not required by the doctrine of
legitimate expectations to issue the modified permit but rather that he was estopped by earlier
representations  the evidence went well beyond what was required by legitimate expectations
In public law estoppel the public interest must be taken into account  the requirements of estoppel
are greater than those of legitimate expectations  in taking into account the public interest it may
well be that the Minister could deny the new license
Fault as an Element in Procedural Fairness Assessments
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In the vast majority of procedural fairness cases courts will be dealing with the denial of a proper hearing due to some
conduct on the part of the decision maker
However there are occasions where external agents actions have some impact on the fairness of proceedings
o Process servers do not serve documents, couriers do not arrive on time etc.
Where the fault is not that of the decision maker then there is no issue but what about where the decision maker is the
one who is at fault  such as for misaddressing a document
Constitutional Dimensions
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Both the Canadian Bill of Rights and the Charter are primary legislation  superior to other legislation
o But the Bill of Rights only applies to federal legislation
o The existence of these statutes may give rise to greater procedural protections either by creating protections
where none existed previously or by mandating a higher form of protection than what previously existed
As a result of the potential for heightened protections it will be important to understand when each of these pieces of
legislation is engaged
There are two dimensions to the identification of the thresholds to the procedural protections of both the Charter and
the Bill of Rights
o There is the matter of the general reach of both of these statutes  what areas of administrative law do they
affect
o There are the thresholds established in each statute by the specific provisions containing procedural
guarantees
The Bill of Rights applies to the “laws of Canada” a phrase broad enough to encompass not only legislation but also
decisions and actions by those deriving their power from federal law
o The principal procedural protections are found in s.1(a) and 2(e)
o S.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
o S.2 – every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it
shall operate nothwithstanding the Canadian Bill of Rights, be so construed and applied as not to abridege or
infringe or to authorize the abrogation, abridgment or infringement of any rights or freedoms herein
recognized and declared, and in particular, no law of Canada shall be construed and applied 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
o Rights and obligations in s.2(e) was interpreted narrowly until Singh v Canada
The Charter applies to both federal and provincial laws but is restricted to the actions of parliament and legislatures
and the branches of government
o This controls the application of the Charter
o The principle protection is s.7  Everyone 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
o The Charter applies to everyone unlike the Bill of Rights which only applies to individuals  includes
corporations
o S.7 does not include the protection of property rights
There is a wide array of agencies, boards and commissions that act with some degree of autonomy from government
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o But when will the Charter apply to their actions is a big question
The Charter of Rights and Freedoms
It is s.7 that is the principle source of procedural protections  unlike s.2(e) of the Bill of Rights the principles of
fundamental justice in s.7 are not conditioned by any reference to a fair hearing
o As a result s.7 has a substantive as well as a procedural element
Andrews v Law Society of BC dashed any hopes that s.15 provided a guarantee of equality among participants in
administrative proceedings
o The case established that s.15 was essentially an anti-discrimination provision with its protections only
benefiting “discrete and insular minorities” as reflected in the categories of victim specified in the second half
of the section as well as those possessing analogous characteristics
o The only form of procedural discrimination that counts, therefore, is one that has the intention or effect of
discriminating against persons within these groups
As for s.11 its direct effect has been confined to criminal proceedings and those with true penal consequences
As for s.8-14 they may have some impact in administrative proceedings especially where there are powers of search,
seizure and detention in the enabling statutes
o Also there may be some room for argument with these issues in a s.7 context
The potential impact of s.7 was first considered in Singh
Singh v Canada (Minister of Employment and Immigration) [1985] 1 SCR 177
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Appellants were convention refugee claimants who were landed in Canada. Under the existing procedures the
Minister had determined (on adviced from the Refugee Status Committee) that they were not convention refugees.
They applied to the Immigration Appeal Board for a redetermination but their applications were not referred to an oral
hearing because the board determined on the strength of the material submitted by the applicants that there were no
reasonable grounds for believing that they could establish their claims at a hearing. They appealed to the Federal
Court of Appeal alleging a violation of s.7 but failed and then appealed to the SCC
Wilson (Dickson and Lamer)
Life Liberty and Security of the Person
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In Singh and the extradition cases there was little doubt that s.7 type interests of the applicants were at stake but the
direct source of those interests were foreign governments
o To succeed the applicants had to implicate the Canadian government and its laws and processes
Chapter 5 - The Choice of Procedures
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This looks at the content of procedural entitlements once the threshold of any procedural claims has been crossed
Arguments about the threshold can scarcely avoid being influenced by the details of the procedural entitlements that
the court perceives are being asserted as exemplified by the Inuit Tapirisat judgment
As the threshold for fairness – for procedural claims – has been lowered, the issue of procedural content – what
constitutes fairness, has become much more prominent and perhaps controversial
The emergence of the doctrine of procedural fairness exposed certain forms of decision making to scrutiny for the first
time
o This brought to light the fact that the procedures followed by the courts was not necessarily appropriate for
other decision making bodies
One other issue is whether the advent of the Charter mandates that there be introduced greater protections than those
mandated by natural justice or procedural fairness
o Due to the presence of the Charter, and the strictures of procedural fairness and natural justice, the importance
of procedural design has become heightened
Suresh v Canada (Minister of Citizenship and Immigration [2002] 1 SCR 3 (Can.)
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Suresh had applied for landed immigrant status  minister issued a certificate that Suresh was a danger to the security
of Canada  Suresh could make submissions to refute this but did not have access to the report on which the
certificate was based  could not respond directly to it
Questions  are the procedures for deportation set out in the immigration Act constitutionally valid
20
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Looking to s.7 of the Charter it is important to bear in mind the specific facts of the situation
The principles of fundamental justice are not identical to the duty of fairness but they are the same principles
underlying the duty
 Principles of fundamental justice require, at a minimum, compliance with procedural fairness
 Should therefore look to the Baker factors to determine not only whether procedural fairness has been
satisfied but also whether the safeguards in the Act meet the requirements of s.7  in doing so the
common law duty of fairness is used only to inform the s.7 procedural analysis
o The nature of the decision to deport bears some resemblance to judicial proceedings  it is a serious decision,
made by an individual on the basis of evaluating and weighing risks but some discretion must be allowed
 The nature of the decision militates neither in favour of strong nor weak procedural safeguards
o The nature of the statutory scheme suggests the need for strong procedural safeguards
 In the absence of appeal procedures there will be a greater need for procedural protections earlier in
the proceeding  especially where other sections of the Act have additional procedural protections
o The nature of the right affected militates in favour of heightened procedural protections
 The applicant’s interest in staying in Canada is highly significant  there is the risk of torture  the
greater the effect on the life of the individual by the decision the greater the need for procedural
protections
 This is especially so where the Canadian government has committed itself to not deporting people to
countries where there are substantial grounds for believing that they will be tortured
o There must be some degree of deference provided to the Minister in the choice of procedures
 The Minister is free under the statute to choose whatever procedures she wishes in making this
decision  the Minister must be allowed considerable discretion in weighing the competing interests
that go into making these decisions
 This need for deference must be offset by the need to ensure sufficient procedural protections for
those who may face torture if deported
Weighing the Baker factors – outlined above – does not lead to a determination that the Minister must provide for a
full oral hearing or a complete judicial process  however they require more than the procedure provided by the Act
– that is none – and more than that received by Suresh
A person facing deportation and the risk of torture must know the case to be met
Fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister
Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to
correct any factual inaccuracies or mischaracterizations  fundamental justice requires that the subject of the order be
allowed to respond to the material being used against him or her
The refugee must be given the opportunity to challenge the information where issues of its validity arise
The refugee must be given an opportunity to make submissions as to the value of the assurances of a foreign
government that the refugee will not be tortured should they be deported
o In assessing the pledge of the foreign government it is important to look at its past conduct, to look at its
human rights record, its compliance with past assurances, etc.
The Minister must provide written reasons for her decision
o These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe
that the individual who is the subject of a s.53(1)(b) declaration will be subjected to torture execution or other
cruel or unusual treatment, so long as the person under consideration has raised those arguments
These procedural protections need not be invoked in every case as not every case of deportation of a Convention
refugee will involve risk to an individual’s fundamental right to be protected from torture or similar abuses
o It is for the refugee to establish a threshold showing that a risk of torture or similar abuse exists before the
Minister is obliged to consider fully the possibility
If the refugee establishes that torture is a real possibility the Minister must provide the refugee with the information
and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing and after
considering all the relevant information, issue responsive written reasons
o This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice
under s.7 of the Charter
The failure to provide adequate procedures does not satisfy the s.1 requirement
21
Ahani v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 72
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In this appeal we hold that the appellant, Mansour Ahani, is not entitled to a new deportation hearing under the
Immigration Act, R.S.C. 1985, c. I-2. Ahani is a citizen of Iran who entered Canada in 1991 and claimed Convention
refugee status. The Canadian government now seeks to deport him to Iran, because of his association with the Iranian
Ministry of Intelligence and Security ("MOIS"), which the government alleges is an Iranian terrorist organization.
Ahani claims that if he is sent back to Iran, he will likely face torture.
This appeal raises the same constitutional issues as Suresh v. Canada
we conclude that Ahani has not cleared the evidentiary threshold required to access the s. 7 protection guaranteed by
the Canadian Charter of Rights and Freedoms
In this case, unlike Suresh, the Minister provided adequate procedural protections. The appeal is therefore dismissed.
Ahani was later informed of the Minister's intention to issue a danger opinion under s. 53(1)(b) of the Act
The Minister later issued her opinion, under s. 53(1)(b) of the Act, that Ahani constituted a danger to the security of
Canada, following which Ahani filed an application for leave and for judicial review of the Minister's decision. Ahani
raised a number of constitutional questions relating to s. 53(1)(b) of the Act. Ahani also commenced an action in
which he raised the same constitutional questions
For the reasons discussed in Suresh, the standard of review on the first decision is whether the decision is patently
unreasonable in the sense that it [page80] was made arbitrarily or in bad faith, cannot be supported on the evidence, or
did not take into account the appropriate factors.
Applying the functional and pragmatic approach mandated by Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, we conclude that the Parliament intended to grant the Minister a broad discretion
in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision.
Likewise, on the second question, we conclude that the court may intervene only if the Minister's decision is not
supported on the evidence, or fails to consider the appropriate factors
the Minister's decision is largely fact-based. The inquiry into whether Ahani faces a substantial risk of torture involves
consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances
that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its
own security forces, and more. Such issues are largely outside the realm of expertise of reviewing courts and possess
a negligible legal dimension. Considerable deference is therefore required.
Returning to the first question, we find that it was not patently unreasonable for the Minister to conclude that Ahani
would constitute a danger to the security of Canada under s. 53(1)(b) of the Act
We agree that on any standard of review there was ample support for the Minister's decision.
We are of the view that the Minister's decision is also unassailable on the second question
the serious risk to Canadian security was outweighed against the minimal risk of harm to Ahani if returned to Iran.
In Suresh, we found that in circumstances where a Convention refugee makes out a prima facie case that there may be
a substantial risk of torture upon deportation, the duty of fairness requires greater procedural protection than required
by the Act under s. 53(1)(b). In cases of that kind, a person facing a declaration under s. 53(1)(b) and, accordingly,
deportation to a country in which he or she may face torture, must be provided with all relevant information and
advice produced for the Minister's consideration by the Department of Citizenship and Immigration and other sources,
with an opportunity to address that evidence in writing and with written reasons
Ahani was made aware of the allegations against him and was provided with the opportunity to make written
submissions. Specifically, by letter dated April 22, 1998, he was informed of the intention of the Minister to issue an
opinion under s. 53(1)(b) and that the effect of that opinion would be the removal of the prohibition against returning
persons, who have been found to be Convention refugees, to the country from which they fled.
We are satisfied that Ahani was fully informed of the Minister's case against him and given a full opportunity to
respond. Insofar as the procedures followed may not have precisely complied with those we suggest in Suresh, we are
satisfied that this did not prejudice him. We conclude that the process accorded to Ahani was consistent with the
principles of fundamental justice, and would reject this ground of appeal
The Statutory Powers Procedures Act
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Get from website
The subjects of the rules in the SPPA and much of their substance are derived from the common law
The desirability of this kind of statute is a complex and difficult issue that ultimately depends on attitudes about
allocation of responsibility for the choice and content of procedures between legislatures and courts
22
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There are two kinds of reasons for adopting such a statute
 The belief that the content of the common law is unsatisfactory and that the courts are not likely to
make appropriate changes
 A desire for some distinctive attributes in the form of legislation or the legislative process
o There are also two kinds of difficulties
 The technical challenge of drafting especially the needs to avoid inconsistencies or gaps and to
integrate the statute with the common law
 The need to accommodate diversity among the agencies and change
 The diversity has obvious implications for procedures
 The change may be in the preferences about specific procedural requirements, the common
law background or the functions of agencies
The impact of the SPPA on administrative law in Ontario has never been fully assessed but some observations can be
made
o The promise that the SPPA would provide a framework for the ongoing and systematic assessment of
Ontario’s administrative processes foundered
 The Rules Committee was never given adequate resources and was never able to achieve its goals and
effectively ceased to exist before its legal abolition in 1994
o The Act was very general and was not prepared to adapt to the changing nature of administrative processes in
Ontario  as a result the common law of judicial review remained an important forum for the development of
procedural norms
o The Act did, however, establish a standard of procedural fairness that could not be ignored by those charged
with the development of procedural norms either as a rule-making exercise or in the context of individual
cases in which SPPA-type claims were being advanced
Specific Content Issues
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These are divided into two areas: pre-hearing issues and the actual hearing itself
Pre-hearing issues include such things as notice, claims to pre-hearing disclosure or discovery of the evidence to be
relied upon and delay in the processing of the administrative proceedings
The hearing portion deals with such questions as whether the hearing should be oral or written, or a mixture, is there
an entitlement to representation, is there a right to cross-examine witnesses etc.
Pre-Hearing Issues
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Notice
o Notice is necessary because without it the other rights cannot be exercised effectively, or at all
o Most of the problems about notice can be put into one or other of four groups
 Problems about form
 Problems about the manner of service
 Problems about time
 Problems about the contents
o Two forms of notice are common  written and oral
 Written notice is the more usual and probably the norm that the courts will require unless the context
permits some different form
 Oral may be permissible in some contexts
o Personal service is another norm that the courts will probably require unless the context permits giving in
some other way
 For example where a large group of persons are affected it may be impractical to provide personal
notice – e.g. environmental issues – and the legislation may explicitly allow for some alternate form
of service (newspaper ad for example)
o Ontario Hydro cases
 Southwestern Ontario v Eastern Ontario
 Whether Barrie area was in the former – court ruled that the description was too vague and
most people in the affected area for the transmission line did not think that they lived in an
area that would be affected by it
 In the Eastern Ontario one there was no question that the people lived in Eastern Ontario so
there was no problem with describing the area as such
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o
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Mailing  what is the date of notice – when it is mailed or when it is received?
 City of Winnipeg v Torchinsky – a reassessment was sent to T who had to respond by a certain date
but did not receive the assessment until that date. Court said that he should be allowed to appeal the
assessment because it was as if no assessment had been given prior to the hearing – the notice period
is directory not mandatory and the purpose of the section (limiting the right to appeal) was to preserve
the validity of an assessment affected by technical or procedural error or defect
 Re Rymal and Niagara Escarpment Commission – landowners affected by decisions of the
commission had a right to appeal within 14 days of the mailing of notices of decisions from the
commission – one owner received his notice 9 days after it was mailed and responded but it was not
received until one day after the deadline  court allowed that the unreliability of the mail could be
taken into consideration
The notice must be given long enough before the date of the proposed hearing to give the party enough time
to decide whether to participate and to prepare
The length of time will depend on the nature of the interests and the issues
The notice must also give enough information about the issues to enable the party to prepare to respond
Issues about notice are not confined to pre-hearing notice but can also arise in the course of a hearing 
especially commissions of inquiry which are under a statutory duty to provide notice
 When should notice be given and what are the limits on its content and wording
Krever Commission
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What limits, if any, should be imposed upon the findings of a commission of inquiry? Can a commission make
findings which may indicate that there was conduct on the part of corporations or individuals which could amount to
criminal culpability or civil liability? Should different limitations apply to notices warning of potential findings of
misconduct? It is questions like these which must be considered on this appeal
The Order in Council authorized the Commissioner to "adopt such procedures and methods as he may consider
expedient for the proper conduct of the inquiry". In consultation with the parties, the Commissioner adopted rules of
procedure and practice. The rules, which were agreed to by all parties, provided that in the ordinary course,
Commission counsel would question witnesses first, although other counsel could apply to be the first to question any
particular witness.
On October 26, 1995, Commission counsel delivered a memorandum to all parties inviting them to inform the
Commission of the findings of misconduct they felt should be made by the Commission. The memorandum explained
that under s. 13 of the Act, the Commissioner is required to give notice to any person against whom he intends to
make findings of misconduct. The parties' submissions would help ensure that the notices gave warning of all the
possible findings of misconduct which might be made by the Commission. These confidential submissions would be
read only by Commission counsel, and would be considered for inclusion in notices issued by the Commissioner.
On December 21, 1995, the final day of scheduled hearings, 45 confidential notices naming 95 individuals,
corporations and governments, each containing between one and 100 allegations, were delivered pursuant to s. 13 of
the Act. The notices advised that the Commission might reach certain conclusions based on the evidence before it,
that these conclusions may amount to misconduct within the meaning of s. 13, and that the recipients had the right to
respond as to whether the Commissioner ought to reach these conclusions. The recipients were given until January 10,
1996 to announce whether and how they would respond to the notices in their final submissions
What then can commissioners include in their reports? The primary role, indeed the raison d'être, of an inquiry
investigating a matter is to make findings of fact. In order to do so, the commissioner may have to assess and make
findings as to the credibility of witnesses. From the findings of fact the commissioner may draw appropriate
conclusions as to whether there has been misconduct and who appears to be responsible for it. However, the
conclusions of a commissioner should not duplicate the wording of the Code defining a specific offence. If this were
done it could be taken that a commissioner was finding a person guilty of a crime. This might well indicate that the
commission was, in reality, a criminal investigation carried out under the guise of a commission of inquiry.
Findings of misconduct should not be the principal focus of this kind of public inquiry. Rather, they should be made
only in those circumstances where they are required to carry out the mandate of the inquiry. A public inquiry was
never intended to be used as a means of finding criminal or civil liability. No matter how carefully the inquiry
hearings are conducted they cannot provide the evidentiary or procedural safeguards which prevail at a trial.
Perhaps commissions of inquiry should preface their reports with the notice that the findings of fact and conclusions
they contain cannot be taken as findings of criminal or civil liability.
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The findings of fact and the conclusions of the commissioner may well have an adverse effect upon a witness or a
party to the inquiry. Yet they must be made in order to define the nature of and responsibility for the tragedy under
investigation and to make the helpful suggestions needed to rectify the problem. It is true that the findings of a
commissioner cannot result in either penal or civil consequences for a witness. Further, every witness enjoys the
protection of the Canada Evidence Act and the Charter which ensures that the evidence given cannot be used in other
proceedings against the witness.
That same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13 of the
Inquiries Act. A commission is required to give parties a notice warning of potential findings of misconduct which
may be made against them in the final report. As long as the notices are issued in confidence to the party receiving
them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of
issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made
against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the
only harm which could be caused by the issuing of detailed notices would be to a party's reputation. But so long as
notices are released only to the party against whom the finding may be made, this cannot be an issue. The only way
the public could find out about the alleged misconduct is if the party receiving the notice chose to make it public, and
thus any harm to reputation would be of its own doing.
It must be remembered that in this case, the challenge brought by the appellants was triggered not by any findings of
the Commission but by the s. 13 notices. Therefore, these reasons are not concerned with any challenge to the
contents of the commission report or any specific findings. It will also be remembered that the Commissioner very
properly stated that he would not be making findings of civil or criminal responsibility.
The question then is whether the Commissioner exceeded his jurisdiction in the notices delivered to the appellants; I
think not. The potential findings of misconduct cover areas that were within the Commissioner's responsibility to
investigate. The mandate of the Inquiry was extremely broad, requiring the Commissioner to review and report on
"the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining . . . the
organization and effectiveness of past and current systems designed to supply blood and blood products in Canada".
This must encompass a review of the conduct and practices of the institutions and persons responsible for the blood
system. The content of the notices does not indicate that the Commissioner investigated or contemplated reporting on
areas that were outside his mandate
Some of the appellants object to the use of the word "failure" in the notices; I do not share their concern. As the Court
of Appeal pointed out, there are many different types of normative standards, including moral, scientific and
professional-ethical. To state that a person "failed" to do something that should have been done does not necessarily
mean that the person breached a criminal or civil standard of conduct. The same is true of the word "responsible".
Unless there is something more to indicate that the recipient of the notice is legally responsible, there is no reason
why this should be presumed
The appellants argue that they did not have the benefit of adequate procedural protections. As a result, they contend
that the Commissioner has lost the authority to make the type of findings which are referred to in the notices. They
submit that they interpreted comments made by the Commissioner during the Inquiry as assurances that he had no
intention of making the type of findings suggested by the notices. If these assurances had not been given the
appellants say that they would have insisted upon tighter evidentiary procedures, greater ability to cross-examine, and
other procedural protections
The appellants submit that because the Commissioner waited until the last day of hearings to issue notices identifying
potential findings of misconduct which might be made against them, their ability to cross-examine witnesses
effectively and present evidence was compromised. They submit that there is no longer any opportunity to cure the
prejudice caused by the late delivery of the notices, and that they must therefore be quashed. For the following
reasons, I must disagree.
There is no statutory requirement that the commissioner give notice as soon as he or she foresees the possibility of an
allegation of misconduct. While I appreciate that it might be helpful for parties to know in advance the findings of
misconduct which may be made against them, the nature of an inquiry will often make this impossible. Broad
inquiries are not focussed on individuals or whether they committed a crime; rather they are concerned with
institutions and systems and how to improve them. It follows that in such inquiries there is no need to present
individuals taking part in the inquiry with the particulars of a "case to meet" or notice of the charges against them, as
there would be in criminal proceedings.
The timing of notices will always depend upon the circumstances. Where the evidence is extensive and complex, it
may be impossible to give the notices before the end of the hearings. In other situations, where the issue is more
straightforward, it may be possible to give notice of potential findings of misconduct early in the process. In this case,
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where there was an enormous amount of information gathered over the course of the hearings, it was within the
discretion of the Commissioner to issue notices when he did.
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Fuelled by the judment of the Supreme Court in R v Stinchcombe was an increasing concern with the question
whether notice entitlements in the administrative process involve a claim to pre-hearing discovery of all relevant
information in the possession of the other side
o Even assuming that some level of advance notice of the contrary evidence is generally part of the obligations
of procedural fairness does that always encompass the levels of information in civil discovery and criminal
disclosure
Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General Hospital)
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This is an application for judicial review of the decision of the board of inquiry to order production of witness
statements and other documents related to the investigation of certain complaints made pursuant to the provisions of
the Ontario Human Rights Code
The board of inquiry was appointed by the Minister of Citizenship "to inquire into a number of complaints alleging
discrimination in employment often persons, all of whom were or are registered nurses at Northwestern General
Hospital. The complaints allege discrimination in employment on the grounds of race, colour, harassment, ethnic
origin, place of origin and reprisal by Northwestern General Hospital and ten named Respondents".
Order of the Board of Inquiry - "I order the Commission to provide the Respondents all statements made by the
Complainants to the Commission and its investigators at the investigation stage, whether reduced to writing or copied
by mechanical means. I further order the Commission to provide the Respondents with the statement and identity of
any witness interviewed by the Commission or its agents who the Commission does not propose to call and whose
statements might reasonably aid the Respondents in answering the Commission's case."
o The commission submits that the documents that are ordered to be produced are privileged in that they were
obtained with a substantial purpose of litigation in view.
In rejecting the claim of privilege, the board of inquiry separated the investigation stage from the subsequent
conciliation stage and the third "prosecution" stage.
In the context of what is reasonably required in the way of disclosure in order to achieve the duty of fairness the board
concluded:
o In a case such as this, I have decided that the Stinchcombe doctrine ought to be applied. The exclusion of the
element of surprise in the interests of the fairness of a hearing is, I believe now required. Thus any relevant
materials not otherwise privileged ought to be disclosed to counsel for the Respondents.
Section 12 of the Statutory Powers Procedures Act ("SPPA") clearly recognizes the authority of a board of inquiry to
order the production of all the documents which are the subject of the order in this case, subject to claims of privilege.
The applicant equates proceedings under the Human Rights Code to the civil rather than the criminal process. It is in
our view significant that in civil proceedings the "full discovery of documents and oral examination of parties and
even witnesses are familiar features of the practice".
R. v. Stinchcombe also recognized that the "fruits of the investigation" in the possession of the Crown "are not the
property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice
be done" (at p. 7). We are of the opinion that this point applies with equal force to the proceedings before a board of
inquiry and that the fruits of the investigations are not the property of the commission.
We are also of the opinion, while not necessary to our decision, that the role of commission counsel is analogous to
that of the Crown in criminal proceedings
It has been submitted on behalf of the applicant that the disclosure as ordered by the board in this case could
discourage victims of racial discrimination from making complaints if they knew that their original statements might
be carefully scrutinized at some later stage. Obviously, the public has an important interest in the making of any
legitimate complaint.
The fact that complainants are aware that their original complaint or complaints may be subsequently disclosed, might
well encourage complainants to take the appropriate care in communicating their allegations. Of course, we make no
comment whatsoever on the allegations in this case, as we are in no position to do so at this stage.
It is also submitted on behalf of the applicant that knowledge of such disclosure might well intimidate the potential
complainant, who is often from a disadvantaged class, or place that person in an adversarial relationship with the
representative of the commission whom they first encounter.
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It is our opinion that any such concerns can be addressed by the procedures of the Human Rights Commission and by
the provision of access to independent legal counsel. In our view this would be preferable to the denial of fundamental
fairness to respondents.
CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board)
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This appeal has to do with the extent of the disclosure required to the appellant of documents in the hands of the
Patented Medicine Prices Review Board
Utilizing its powers under the Patent Act ("the Act"), the Board scheduled a hearing to determine whether the drug
Habitrol marketed in Canada by the appellant is being sold at an excessive price. The consequences of such a finding
under s. 83 of the Act could be an order for a price reduction in the selling price, a payment to Her Majesty in the
Right of Canada of an offset amount from estimated excess corporate revenue, and, on a finding of a policy of selling
the medicine at an excessive price, an offset of up to twice the amount of the estimated excess revenues. This last kind
of remedial order is not in play in the instant case in its current state.
The appellant seeks the disclosure to it of all documents in the Board's possession which relate to the matters in issue
in the s. 83 hearing, particularly the report on which the Chairman acted in ordering the hearing. In its view such
disclosure should extend to all the facets of the staff investigation and to all documents in the hands of the Board or its
Chairman.
The Board refused the appelant’s request  the decision was upheld on judicial review
o The Board has made a decision refusing disclosure of the documents requested and I should give such a
decision curial deference unless fairness or natural justice requires otherwise
o The Board’s function is not to obtain information solely for investigative purposes  its primary role is to
monitor prices
 In its decision the Board recognized the need to balance its duty to the applicant against limiting its
ability to discharge its responsibilities in the public interest on an ongoing basis  the Board
exercised its duties properly in this case
 There is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal
court. The obligations concerning disclosure imposed by the doctrine of fairness and natural justice
are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the
documents that will be relied on.
 To require the Board to disclose all possibly relevant information gathered while fulfilling its
regulatory obligations would unduly impede its work from an administrative viewpoint. Fairness is
always a matter of balancing diverse interests. I find that fairness does not require the disclosure of
the fruits of the investigation in this matter.
We are agreed that the Motions judge has correctly stated and applied the law
The only real issue between the parties is as to the effect to be given in this non-criminal case to the powerful reasons
for decision of Sopinka J. in R. v. Stinchcombe, [1991] 3 S.C.R. 326 that in a criminal case the Crown has a legal duty
to make total disclosure to the defence.
This is where any criminal analogy to the proceedings in the case at bar breaks down. There are admittedly extremely
serious economic consequences for an unsuccessful patentee at a s. 83 hearing, and a possible effect on a corporation's
reputation in the market place. But as McKeown J. found, the administrative tribunal here has economic regulatory
functions and has no power to affect human rights in a way akin to criminal proceedings.
The Actual Hearing
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Oral hearings
o Like many terms in administrative law the term oral hearing can have different meanings
 It is used hear to mean a face to face encounter with the actual decision maker – or someone who can
make decisions  and where relevant the other party or parties
o Traditionally the requirement of an oral hearing was a part of natural justice – but not always
o Courts seem to give agencies considerable discretion  but will depend on the context
o The norm will be for an oral hearing
o With the emergence of procedural fairness doctrine the presumption in favour of oral hearings as the norm
disappeared in the expanded common law procedural terrain
 Other forms of hearing have achieved extensive recognition in the SPPA as well
o However in cases where the Charter or the Bill of Rights are in issue the absence of an oral hearing will be a
significant concern
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o
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The matters in issue may also play into the determination of whether or not an oral hearing is appropriate in
the circumstances of the case
The claim to an oral hearing is at its height where credibility is an issue  but this view is not unchallenged
and in some contexts it is viewed that an inquisitorial method is the best approach
Masters v Ontario
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Masters was the Ontario agent general in New York. Following complaints of sexual harassment the premier
requested a team of external investigators to ascertain the facts  a report was produced stating that he had sexually
harassed seven women
Rather than be reassigned Masters resigned on the basis of a financial settlement and applied for judicial review of the
report alleging breaches of natural justice
Mr. Blue's central submission was that Masters was entitled to have the determination of whether he had engaged in
sexual harassment placed before an impartial decision-maker and to be accorded the right to cross-examine all
witnesses adverse in interest.
Also challenged in these proceedings was the refusal to provide Masters' counsel with "equal" access to the same
witnesses interviewed by the investigators and that this inequality of treatment further contributed to a reasonable
apprehension of bias.
The central submission of Mr. Blue was that where credibility will determine the main issue before a government
decision-maker, particularly where that main issue is vital to an interested party's professional career, the general duty
of fairness and the rules of natural justice require that an impartial decision-maker first be designated to determine
credibility by way of a full trial-type hearing permitting witnesses to be subjected to cross-examination. This, of
course, was not done.
In applying this framework to the facts at hand, one must not lose sight of the fact that the position held by the
applicant was of high office and that he was directly accountable to the Premier.
Masters' position was more politically accountable and more senior than those positions in Nicholson and Knight.
Further, the Premier was not acting pursuant to a statute but rather was exercising a prerogative to consider revoking
one of his earlier appointments. These features of the decision-making distinguish this case from Nicholson and
Knight, placing it even more towards the discretionary or legislative end of the spectrum referred to in Martineau.
On the other hand, neither the decision-making nor the investigation focused on "broad grounds of public policy".
Rather, the issues became whether or not Masters could be said by his employer to have engaged in sexual harassment
as alleged and, if so, what action should be taken. Both his employment and his reputation were understood to be at
stake. Unfortunately, a mere allegation of sexual harassment may indelibly damage an individual. Armstrong and
Barnes were aware of this reality, prompting another contact with Arnston before moving forward. The well-being of
the women involved and the fundamental need for a harassment-free workplace, however, were also pressing
concerns.
However, the submission by Mr. Blue, that Masters was entitled to a trial-type hearing before an impartial decisionmaker, with a full panoply of rights including cross-examination of his accusers, is without merit:
The duty of fairness did not require the government to use its coercive powers as employer and direct witnesses to
subject themselves to MacKillop's questioning.
No active steps were taken to hinder the preparation of Masters' case
MacKillop later agreed with Agnew that Masters would have a final right of reply to the completed report of the
investigators prior to the Premier making any assessment. At the time this arrangement was made, MacKillop was
well aware the investigators were following up on his client's responses to the allegations by re-attending in New
York and Boston to speak with the witnesses.
The Premier considered the applicant's October 15, 1992 submissions together with the investigators' report and
concluded, in light of the number and pattern of informal complainants, that Masters should be brought back to
Toronto. Nothing more was required in the circumstances. Masters was given an adequate opportunity to know the
allegations against him and to state his case before the Premier considered the matter. The Directive's requirements
were substantially complied with, keeping in mind MacKillop's complaints to the investigators about the delay in
completing their report, the content of his meeting with Agnew on September 29, 1992, and the fact that he was given
the final right of reply by the Premier.
For the applicant's benefit, however, it must be emphasized again that the Premier was not conducting a trial. Clearly,
an adversary trial is much more likely to produce "truth" and the perception of "fairness" than a mere investigation.
For example, in the criminal setting, persons are sometimes accused of criminal wrong-doing as a result of a police
investigation and yet acquitted after an adversary trial. Similarly, in civil trials, we often observe employees
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vindicated of wrong-doing despite their employers having concluded otherwise prior to dismissing them. In
comparison to a trial, therefore, there is a much greater margin for error in the "findings" of any investigation. This is
particularly so where findings depend on difficult determinations of credibility, motive and intent.
It should, therefore, be understood that the allegations made against the applicant were never adjudicated. The
investigatory process deployed to inquire into his alleged conduct, by its very nature, did not afford him all the
safeguards of a trial and Nicholson and Knight do not require otherwise. To hold that they do would be to transform
the nature of the discretion at issue.
For all of these reasons, I find that Masters was aware of all the material allegations against him and was provided
with an adequate opportunity to be heard. The investigation was neither unfair nor biased by reason of any of the
grounds alleged. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the
case at bar were met.
Khan v University of Ottawa
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The Faculty of Law Regulations stipulate that examinations must be either two or three hours long. Ms. Khan thought
that the Evidence exam was two hours long. In fact, it was set for two-and-a-half hours. During the first two hours,
she answered all the exam questions in three examination booklets. Although not required to do so, she labelled her
booklets "1 of 3", "2 of 3" and "3 of 3". A few minutes before what she thought was the end of the examination, she
put the three booklets to the side of her table. She then looked up and saw the proctor writing on the blackboard that
35 minutes remained in the examination
Realizing that she had been mistaken about the length of the exam, Ms. Khan began writing in a fourth examination
booklet, in which she supplemented her answers to seven of the exam questions. She labelled this examination
booklet "INSERT" in large red letters across the front. She said that she did not number the fourth booklet because she
wanted her instructor to realize that this booklet added to answers she had already given in the first three booklets.
However, she did not write anything on the first three booklets to notify the instructor of the fourth booklet.
On January 18, 1996, Ms. Khan was told that she had been given a failing grade in Evidence. On February 11, 1996,
she was allowed to view her Evidence examination booklets and she realized that the fourth booklet, labelled
"INSERT", was missing. She had been marked on her three examination booklets and was later told that the instructor
did not recall seeing any booklet labelled "INSERT" in large red letters. A university administrator looked through the
files of the other students who wrote the Evidence examination but did not find Ms. Khan's fourth booklet. On
February 14, 1996 she appealed to the Faculty of Law Examinations Committee.
Ms. Khan did not fare well in her other courses during second year. Nonetheless, had she passed Evidence, she would
have passed her year. But her failing grade in Evidence lowered her grade point average below the level required to
pass. The university considers that she has failed her second year of law school and that she must complete an
additional semester of courses before she can graduate
In my view, a university student threatened with the loss of an academic year by a failing grade is also entitled to a
high standard of justice. The effect of a failed year may be very serious for a university student. It will certainly delay
if not end the career for which the student was studying. It may render valueless any previous academic success. In
some cases it may foreclose further university education entirely
In my opinion procedural fairness before the Examinations Committee in this case required the following:
o first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility
was a critical issue on her appeal. By an oral hearing, I mean a hearing in which she had an opportunity to
appear in person before the Committee and an opportunity to make oral representations to it.
 The only direct evidence that she did a write a fourth booklet was her word. If the Committee
members believed her explanation, she was entitled to relief. If they did not believe her explanation,
then her appeal was properly dismissed. In short, the Committee had to decide whether Ms. Khan was
telling the truth.
 Because Ms. Khan's appeal turned on her credibility and because of the serious consequences to her
of an adverse finding, fairness required an oral hearing
o Second, the Committee should have considered the procedures followed during and after the Evidence
examination and made reasonable inquiries to determine whether these procedures were proper.
o Third, the Committee should have given Ms. Khan an opportunity to correct or contradict the three "factors" it
relied on in its decision.
The Examination Committee did not observe these requirements and therefore denied Ms. Khan procedural fairness
Ms. Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show
that the Committee’s breach of its duty of fairness may reasonably have prejudiced her
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Open Hearings
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One question with oral hearings is whether or not they should be open to the public  this has usually been a matter
left to the discretion of the administrative body itself
One area where this is seen is in immigration hearings where a member of the public may apply to have hearings held
in public or where a convention refugee claimant may apply to have the hearing held in public
Another area where this issue arises is in professional discipline cases
o Especially with demands for accountability there is increasing demand for greater transparency and
resultantly greater demands for open hearings
However there are additional concerns such as the protection of victims or witnesses or in national security issues
Right to Counsel
o
This is often assumed and in many cases is statutorily provided for
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and
Textile Workers’ Union
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Disputes in the clothing industry in Toronto had traditionally been resolved by arbitrators and without lawyers  in
this dispute the association wanted to use lawyers and the arbitrator made a ruling against that stating that
Said there is no absolute right to counsel, legal representation is desirable, representation may be inimical to the
functioning of the tribunal in some circumstances
Said that over time the arbitration procedures have developed in the absence of lawyers that are speedy, cost less, and
that have benefited all those involved  this will be lost if lawyers are allowed into the process
Does not mean that there will not be some issues where counsel would not be of assistance, just that there is no use for
them in this circumstance
If the parties wish to change the way things work they can do so but it must be by mutual consent – or they must
mutually submit the matter for consideration
Allowed a lawyer in for a limited purpose
Decision was quashed on appeal
o None of the parties which could appear were natural persons  as a result they had to be represented by
agents – to deny that they could choose lawyers limited their choice of agents
Howard v Stony Mountain Institution
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This is an appeal from a judgment of the Trial Division which dismissed the appellant's application for an order
prohibiting the respondent from continuing or concluding the hearing of certain charges against the appellant under s.
39 of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251, in the absence of legal counsel as requested by the
appellant.
The appellant does not claim a right to have counsel provided for him. Indeed, having had counsel available, he did
not even seek a postponement to obtain counsel.
In so far as the appellant's entitlement to representation by counsel is subject to denial by the exercise of a discretion
there was no attack by the appellant either before the Trial Division or on the appeal on the [page507] exercise by the
disciplinary court of such discretion by denying the appellant's request.
On December 31, 1982, he was involved in incidents with officers of the institution as a result of which five charges
were laid against him under s. 39 of the Penitentiary Service Regulations
On February 3, 1983, by which time he had secured counsel, the appellant appeared before the presiding officer of the
inmate disciplinary court who thereupon adjourned the hearing in order to obtain written submissions from counsel
for the appellant and for the Department of Justice on the request of the appellant to have counsel represent him at the
hearing. The request was denied on April 11, 1983. The presiding officer held that s. 7 of the Charter does not create
"a new wave of rights" and, as he was not persuaded that there were circumstances in the particular case which
precluded the possibility of a fair hearing in the absence of counsel, he exercised his discretion and denied the request.
We were informed by counsel for the appellant that the hearing in the inmate disciplinary court proceeded on June 9,
1983, when the appellant was found guilty on six of the seven counts and was sentenced to forfeiture of 70 days of his
earned remission. As a prohibition can no longer be effective and as the sentence which the appellant was serving has
long since expired, the matter has become academic and would ordinarily not be entertained. But, as counsel for the
respondent, as well as for the appellant, urged upon the court the importance, to both inmates and the penitentiary
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administration, of having a decision of this court as to the right of inmates to counsel in such disciplinary proceedings
and in particular as to the effect of s. 7 of the Charter, the court exercisedits discretion to hear the matter on its merits.
it appears to me to make no difference whether the appellant as an inmate was entitled to be dealt with in the
disciplinary court in accordance with what are referred to as principles of natural justice or with some lesser standard
referred to by the term "fairly". In neither case, apart from s. 7 of the Charter, would the appellant on the basis of
existing jurisprudence have been in a position to demand as of right to be represented by counsel at the disciplinary
hearing. The utmost he might have achieved was to have a discretion to permit him to be represented by counsel
exercised in his favour
This appears to me to amount in substance to a right to have counsel when the facts indicate the need for it and to a
discretion to allow it in other cases as well.
What was said to be at stake in the disciplinary proceedings is the liberty and security of the inmate and his right not
to be deprived of them except in accordance with the principles of fundamental justice. The inmate's liberty was said
to be at stake because his earned remission was in jeopardy as was also the security of his person since solitary
confinement -- also referred to as dissociation -- was one of the punishments to which he might be subjected.
But it appears to me that in interpreting s. 7, and its meaning in the Charter, it is desirable to consider the wording of
the provision in an effort to determine its ordinary meaning in its context
The section is cast in broad terms. Its context is that of a constitutional charter. The Charter itself is part of the
Constitution of Canada. These features suggest a broad interpretation
Next, the subject-matter of s. 7 is the right to life, liberty and security of the person. These are matters of prime
importance to everyone. Moreover, the fact that liberty and the security of the person are lumped together with life
itself shows that the importance of the right to them is in the same class with that of the right to life itself.
Further, while the argument in the present case focused on the meaning and effect of the wording "in accordance with
the principles of fundamental justice" as a guarantee of procedural standards, I would not rule out the possibility that
the wording may also refer to or embrace substantive standards as well.
A further observation is that the standard of what is required to satisfy the section in its procedural sense, as it seems
to me, is not necessarily the most sophisticated or elaborate or perfect procedure imaginable but only that of a
procedure that is fundamentally just. What that may require will no doubt vary with the particular situation and the
nature of the particular case.
In this context, any right a person may have to the assistance of counsel arises from the requirement to afford the
person an opportunity to adequately present his case. This particular point was observed by Goodridge J. in Re Pollard
and Young (Nfld. S.C.T.D.), February 20, 1980, unreported [reported 26 Nfld. & P.E.I.R. 410] when he noted in
parentheses [at p. 425]: "(Jeopardy of course is not the sole test. In a broader sentence, one is really talking of a person
having the right to be heard by a tribunal.)"
Has it then become necessary, in order to afford an inmate an opportunity to be adequately heard and thus to fulfil the
requirement of s. 7, to recognize his right to be represented by counsel in a disciplinary court? I hesitate to refer to
pre-Charter cases on the right to counsel because to do so seems to me to beg the question whether a new right has
been created. On the other hand, to hold that whenever life, liberty or security of the person is in jeopardy in
administering prison discipline an absolute right to counsel arises from the requirement of s. 7 is to hold that the
system before its enactment in which it was said to be within the discretion of the court to allow or deny
representation by counsel was not necessarily up to that standard.
I am of the opinion that the enactment of s. 7 has not created any absolute right to counsel in all such proceedings. It is
undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the
opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel
for that purpose are not in doubt. But what is required is an opportunity to present the case adequately and I do not
think it can be affirmed that in no case can such an opportunity be afforded without also as part of it affording the
right to representation by counsel at the hearing
It appears to me that the right of an inmate to counsel in a case in which under the English and United States' systems
it could not be denied is guaranteed in Canada by s. 7. It is guaranteed because ex hypothesi it is a case in which an
opportunity to adequately present his case cannot be accorded without the inmate being allowed to have counsel.
There is not in the record anything that would indicate that the appellant suffered from physical or mental incapacity
which would disable him from conducting his own defence as well as might be expected of any ordinary person
without legal training. But he obviously felt the need for counsel because he obtained legal aid assistance promptly.
He must also have been able to persuade those who administer the legal aid system of his need. Moreover, in a social
system which recognizes the right of anyone to counsel in any of the ordinary courts of law for the defence of any
charge, no matter how trivial the possible consequences may be, it seems to me to be incongruous to deny such a right
31
to a person who, though not suffering from any physical or mental incapacity to defend himself, is faced with charges
that may result in a loss of his liberty, qualified and fragile though it may have been, for some 267 days.
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One issue that often arises is a person’s claim to a right to be able to be represented by a particular lawyer  but the
right to counsel does not extend this far
New Brunswick (Minster of Health and Community Services) v. G. (J.) [J.G.]
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At stake was whether s.7 of the Charter required that a mother be provided with counsel for the purposes of resisting
an application by the Child and Welfare authorities for renewal of an order placing her three children in the custody of
the state – the Legal Aid plan prohibited the granting of legal aid certificates in custody order renewal proceedings
In the circumstances of this case, the appellant's right to a fair hearing required that she be represented by counsel. I
have reached this conclusion through a consideration of the following factors: the seriousness of the interests at stake,
the complexity of the proceedings, and the capacities of the appellant. I will consider each in turn
The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a
more profound effect on the lives of both parent and child. Not only is the parent's right to security of the person at
stake, the child's is as well. Since the best interests of the child are presumed to lie with the parent, the child's
psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship
There is some debate between the parties as to whether child custody proceedings under the Family Services Act are
more properly classified as adversarial or administrative in nature. In my view, a formalistic classification of the
nature of [page84] the proceedings is not helpful in resolving the issue at hand. Child protection proceedings do not
admit of easy classification.
At issue in this appeal is whether the custody hearing would have been sufficiently complex, in light of the other two
factors, that the assistance of a lawyer would have been necessary to ensure the appellant her right to a fair hearing. I
believe that it would have been. Although perhaps more administrative in nature than criminal proceedings, child
custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible
for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues
are frequently raised.
In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior
intelligence or education, communication skills, composure, and familiarity with the legal system in order to
effectively present his or her case.
In light of these factors, I find that the appellant needed to be represented by counsel for there to [page85] have been a
fair determination of the children's best interests
I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by
counsel when a decision is made affecting that individual's right to life, liberty, or security of the person. In particular,
a parent need not always be represented by counsel in order to ensure a fair custody hearing. The seriousness and
complexity of a hearing and the capacities of the parent will vary from case to case
Although all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the
length of the proposed separation of parent from child
The complexity of the hearing can vary dramatically from case to case. Some hearings may be very short, involve
relatively simple questions of fact and credibility, and have no expert reports. Others might take days and involve
complicated evidentiary questions, troublesome points of law, and multiple experts.
The parent's capacities are also variable. Some parents may be well educated, familiar with the legal system, and
possess above-average communication skills and the composure to advocate effectively in an emotional setting. At the
other extreme, some parents may have little education and difficulty communicating, particularly in a court of law
I therefore conclude that the potential restriction of the appellant's right to security of the person would not have been
in accordance with the principles of fundamental justice had the custody hearing proceeded with the appellant
unrepresented by counsel. The potential s. 7 violation in this case would have been the result of the failure of the
Government of New Brunswick to provide the [page89] appellant with state-funded counsel under its Domestic Legal
Aid program after initiating proceedings under Part IV of the Family Services Act.
The government has wide latitude in discharging its constitutional duty to provide state-funded counsel in proceedings
where that duty arises
notwithstanding the variety of potential delivery options, the government chose to enact a general legal aid scheme
with a scope of application encompassing the proceeding at issue in this appeal. It also adopted a specific policy of
not providing legal aid to respondents in custody applications
32
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Although this case involves a prospective violation of s. 7, it is still necessary to engage in a s. 1 [page90] analysis.
For if the prospective s. 7 violation would otherwise have been saved by s. 1, then there would be no need to order a
remedy
Assuming without deciding that the policy of not providing state-funded counsel to respondents in custody
applications was a limit prescribed by law, that the objective of this policy -- controlling legal aid expenditures -- is
pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal
impairment of s. 7, I find that the deleterious effects of [page92] the policy far outweigh the salutary effects of any
potential budgetary savings
S.7 violations are not easily saved by s.1
This is so for two reasons. First, the rights protected by s. 7 -- life, liberty, and security of the person -- are very
significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the
principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably
justified in a free and democratic society
Moreover, the government is not under an obligation to provide legal aid to every parent who cannot afford a lawyer.
Rather, the obligation only arises in circumstances where the representation of the parent is [page93] essential to
ensure a fair hearing where the parent's life, liberty, or security is at stake. In my view, a parent's right to a fair hearing
when the state seeks to suspend such parent's custody of his or her child outweighs the relatively modest sums, when
considered in light of the government's entire budget, at issue in this appeal.
If the parent has not exhausted all avenues for obtaining stated legal assistance proceedings should be adjourned to
allow time for that to occur  if the parent cannot receive a fair hearing without representation then the judge should
order the government to provide representation
Disclosure and Official Notice
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Where an agency hears evidence from one party and does not provide the other party with an opportunity to review
that evidence or with an opportunity to respond the decision of the agency can be challenged
Kane v Board of Governors of the University of British Columbia
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Kane was a professor at UBC and was suspended for improper use of the computer facilities
He appealed to the board of governors  the president was a member of the board
The board held a meeting at which Kane and the president were in attendance and after the meeting the board had
dinner and met but Kane was not there
o The board discussed the case at the dinner
o Although there was limited information about what role the president played at the dinner there was some
evidence about the president giving the board “the necessary facts”
o Kane made an application for review which was dismissed
o He appealed and it was dismissed and he appealed to the SCC
o SCC said that at the least Kane should have been made aware of the facts raised by the president and given a
real and effective opportunity to correct or meet any adverse statement made
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Disclosure is the disclosure to parties of information that the agency has about the decision to be made
Official notice is the extent and manner in which an agency may, in making its decisions, use material that is not
introduced in evidence
Disclosure is a basic element of the common law of natural justice and is usually required unless some competing
interest prevails
One aspect of disclosure and official notice that we have already encountered is the matter of pre-hearing discovery
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Access to information statutes
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Many jurisdictions in Canada now have “freedom on information” and privacy laws
o These may be potentially valuable sources of information for those involved in interrelationships with
government  governments may have to provide information
o Also just because information is exempted from disclosure under FOI laws does not mean that it will not be
disclosed where natural justice or procedural fairness demands that it be disclosed  FOI legislation is
intended to complement and not replace existing entitlements to information
 This applies to both federal and provincial legislation
33
Crown or Executive Privilege
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At the federal level in Canada the common law of Crown or executive privilege has been codified in provisions in the
Canada Evidence Act and these provisions apply to proceedings before administrative agencies
o S.37 and 38, 39
There have been attempts to attack the constitutionality of s.39 (Babcock v Canada (Attorney General)) but they have
been unsuccessful
Other Common Law Evidential Privileges
o The common law also provides for various other forms of privilege, all of which have the potential to become
relevant in the context of administrative proceedings and attempts to secure information
 Solicitor-client privilege is one example
 Adjudicative privilege is another
The difficulties in deciding about the existence and extent of a right to disclosure are usually the effect of competing
interests
The typical difficulties and choices can be demonstrated in four groups of situations
o An agency may have collected information about an individual and the individual may wish disclosure of this
information
o An agency may have collected information about an individual from other persons and the individual may
wish to know their identity
o An agency may have collected information about a business, usually as a required part of an application, and
other parties, often competitors, may wish disclosure,
o An agency may have material that it has created itself – for example staff reports about particular corporations
or about general economic conditions, or guidelines of policy. Any party – for example competitors of the
particular corporations – may wish disclosure of this material
Access to Agency information
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The problems in the first group have arisen frequently in the work of income support agencies where claimants of
benefits seek access to their files to prepare to present a claim or an appeal  WSIB, OW etc.
There are three major arguments made for disclosure
o That people should have the right to know what government knows about them
o That disclosure would increase the effectiveness of the worker participation in decision making because they
would be better able to respond to the information being used by the board  would also increase
accountability and acceptability
o Disclosure would tend to improve the quality of reports be exposing carelessness and vagueness
Some of the reasons for refusing disclosure are unimpressive
o For example claims of confidentiality cannot apply to the individual themselves
o Disclosure could cause harm  e.g. telling someone that they have terminal cancer when they do not know
 Also in medical reports there was the fear of doctors that having full disclosure could cause harm to
patients or to the doctor patient relationship of trust
 Had a practice of only having summaries of the doctor’s reports instead in Ontario
Re Napoli and Workers’ Compensation Board (1981)
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The issue before us is basically this: was the Judge right in finding that the boards of review and the commissioners of
the WCB breached the rules of natural justice in failing to give theworker a full opportunity to peruse his file when he
appealed from the original decision of a disability awards officer or commissioner?
In order to answer that question one must first examine the procedures provided for in such appeals
If an officer awards compensation to the worker, the worker may appeal that ruling to a board of review within 90
days
Prior to the hearing before the board of review, a WCB compensation consultant provided Napoli's counsel with a
four-page summary of the information in his file.
On June 13, 1978, the board of review heard Napoli's appeal. It declined to disclose medical reports on Napoli's file.
On September 5, 1978, the board of review recommended to the WCB that Napoli's appeal be denied.
The rules of natural justice applied to proceedings before the boards of review and the commissioners, and that the
files should be disclosed to the workers
34
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I agree with his finding that the rules of natural justice apply to the hearings before the boards of review and the
commissioners sitting on appeal, and that therefore the file contents must be disclosed
The issues resolve themselves into (a) do the rules of natural justice in cases of this genre require disclosure, and (b) if
disclosure is required, what is its extent?
o As far as the first issue is concerned, I have no difficulty in answering that question in the affirmative
o I now turn to (b). Mr. Grey, in his able submission argued that the summaries in the Napoli case were
sufficient to comply with the rules of natural justice
o It is instructive to read the summary when one assesses whether it constitutes a proper means of disclosing to
Napoli the case made against him
o I need only quote a few items from this summary to indicate its inadequacies:
 (1) It was felt that psychological and social factors were probably as critically involved in his
disability as organic pathology. He expressed dismay and despair as to his plans for the future or the
alternatives open to him. He seemed to have given up working at options. There was evidence of an
elaboration of his medical complaints and evidence of depression suggesting development of neurotic
problems [p. 6].
 This is a serious allegation, and counsel for Napoli would undoubtedly wish to cross-examine the
writers of the original reports.
 (2) It was also requested that his tolerance for standing, bending and lifting be observed as his
statement that he did not work more than 15 minutes in the garden after which he was forced to lie
down was not borne out by the outstanding upkeep of his home and garden [p. 8].
 In a trial this observation would probably be challenged, especially since it was also known that
Napoli had a family who might have assisted him in such work.
 (3) Throughout the examination, he exaggerated and simulated [p. 12].
 The above represents a sampling of damaging statements which counsel would undoubtedly wish to
challenge in the interests of his client. To do so effectively would require production of the original
reports. As this Court said in Rammell v. Workmen's Compensation Board (1961), 28 D.L.R. (2d)
138 at p. 142, 35 W.W.R. 145: "If the claimant is not told the precise statement made against him,
and when, where and by whom made, how can he effectively answer it?"
o In these circumstances, "a high standard of justice" is required (see the remarks of Dickson J. in Kane, supra),
particularly since Napoli's future will be largely shaped by the decision of the final domestic tribunal
It is my view that the provision of summaries was not sufficient compliance with the rules of natural justice in the
circumstances of the Napoli case. Of course, in Bourdin the rules of natural justice clearly were not followed since he
received no summary of the file material
Identity of Sources of Information
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The second situation involves claims to disclosure of sources of information and there is no general rule beyond
reasonableness
Consider these cases
o A nurse in a psychiatric hospital has been charged with abuse of patients and a hearing is held
 Must disclosure of the names of the individuals who complained of abuse be made
o Law society requires members to be of good character and a prospective member is informed of information
that he was once a member of the Heritage Front  is he entitled to information about the informant
o Professor applies for tenure and a committee evaluates  is professor entitled to know evaluators?
o Is a citizenship applicant entitled to know the names of those who provided information about their
application?
o A prisoner is charged with inciting a riot  are they entitled to know the names of the informants?
Gallant v Canada (Deputy Commissioner, Correctional Service Canada)
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This was an appeal from an order quashing the appellant's decision to transfer the respondent from a maximum
security to a high maximum security penitentiary. The reason given in the written notification of recommendation for
transfer was that he had been implicated in an extortion scheme, involving threats of violence, and procuring and
smuggling drugs into the institution. Specific details of the scheme were not provided in order to protect the identity
of the informants, and to avoid exposing them to death or physical harm. The Trial Division quashed the decision to
transfer the respondent on the basis that it violated the principles of procedural fairness, in that the notice was too
vague to enable the respondent to answer the allegations against him.
35
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The requirements of procedural fairness, like those of natural justice, vary with the circumstances. 2 Thus, the Director
of a penal institution is normally obliged, before imposing administrative segregation on an inmate, to give him a fair
opportunity to be heard. However, the Director is relieved of that obligation when the decision to impose
administrative segregation must be made quickly in an emergency
In the present case, notice was given to the respondent, but that notice was drafted in so general terms that it probably
did not really enable the respondent, assuming his innocence, to refute the case against him
The uncontradicted evidence given by the Warden establishes that, in his opinion, he could not give more particulars
without, in effect, disclosing the identity of his six informants who would then "be in danger of death or serious
bodily injury by other members of the inmate population".
o I do not see any reason to contest the correctness of that opinion
The question, therefore, is whether these circumstances were sufficient to relieve the appellant from the obligation to
give a more detailed notice. In my view, they were. Parliament cannot have intended, when it gave the Commissioner
and his delegates the power to transfer inmates from one penitentiary to another, that they should be bound by the
rules of procedural fairness even when the application of those rules would endanger the lives of other inmates.
In the Demaria case, the failure to give proper notice to the inmate was not justified by any valid reason. That is not
the situation here.
The appellant's decision to transfer the respondent should not have been quashed on the ground that it had been made
in disregard of the requirements of procedural fairness
This conclusion, however, does not dispose of the case since the respondent argued that the appellant's decision
violated not only the rules of procedural fairness but, also, section 7 of the Canadian Charter of Rights and Freedoms
It can no longer be doubted that the decision to transfer an inmate to a penal institution where his freedom will be
more severely restricted is, in effect, a committal to a "prison within a prison" which deprives the inmate of his liberty
o Such a decision must therefore, according to section 7 of the Charter, be made "in accordance with the
principles of fundamental justice."
It is now established that6 "the principles of fundamental justice are to be found in the basic tenets and principles of
our legal system" and that they are not "limited solely to procedural guarantees".
the basic procedural rules that are part of the principles of fundamental justice do not differ, in substance, from the
rules of natural justice and of procedural fairness
The "right to a fair opportunity to be heard" is, therefore, guaranteed by the principles of fundamental justice as well
as by the principles of natural justice and procedural fairness
o The question in this respect, however, is whether the rules of fundamental justice have the same flexibility as
the rules of natural justice and procedural fairness.
Natural justice may or may not, according to the circumstances, require an oral hearing; this is so because, in certain
circumstances, it may be impossible for a person to answer adequately the case made against him, unless he is heard
orally.
o The requirement of natural justice always remains the same: that the person concerned be given a fair
opportunity to be heard.
o The consequences of the application of this basic requirement vary, however, with the circumstances
The rules of natural justice and of fairness are common law rules which Parliament has full power to repeal or
modify9 and which, for that reason, cannot be used "to defeat the objectives of a particular statute". They are,
therefore, flexible in the sense that in each case they will have to be applied so as not to frustrate the intention of
Parliament
I have no difficulty with the proposition that the procedural rules of fundamental justice have, in the first sense that I
have just explained, the same flexibility as the rules of natural justice and fairness.
On the other hand, it is equally clear, in my view, that the rules of substantial justice which must be applied by virtue
of section 7 of the Charter are not "variable or flexible" within the second meaning of those expressions. Indeed, those
rules can only be modified by Parliament in accordance with section 1 of the Charter; otherwise, Parliament would
have the unfettered power to reduce to nothing the protection afforded by section 7.
The principles of fundamental justice do not have, therefore, the same flexibility as the rules of natural justice and of
fairness. For that reason, I cannot escape the conclusion that, in this case, the decision to transfer the respondent to
Saskatchewan Penitentiary was not made in accordance with the principles of fundamental justice since the
respondent was not given a real opportunity to answer the allegation made against him.
There remains to be decided whether that breach of section 7 of the Charter was authorized by a law that met the
requirements of section 1.
36
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The Penitentiary Act [R.S.C. 1970, c. P-6] gives the Commissioner and his delegates the discretionary power to
transfer an inmate from one institution to another, a discretion that is tempered only by the principles of procedural
fairness that apply in so far as circumstances permit
o It is reasonable, perhaps even necessary, to confer such a wide discretion on penitentiary authorities
Concurring Judgment
o As I see it, the problem here is whether the audi alteram partem principle, in the circumstances that prevailed,
required that more information be given to the inmate before asking for his representations. In my judgment,
having regard to the nature of the problem the appellant was facing and his responsibility toward those
entrusted to his care, it did not
o In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence,
fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of
a decision to transfer made for the sake of the orderly and proper administration of the institution and based
on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is.
Gough v Canada
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The applicant had been on parole for five and one half years, when his parole was revoked as a result of complaints of
sexual assault involving use of illegal drugs and coercion, the details of which were withheld from him. His parole
record had been exemplary. He had held "parole reduced" status, the least restrictive parole conditions which can be
given to a parolee. The applicant's position was that the failure to provide details of the allegations upon which the
Board relied was a breach of his Charter, section 7 right not to be deprived of liberty except in accordance with the
principles of fundamental justice. The Board responded that the applicant had been given enough information to
answer the allegations because he already knew of the incidents. The Board further argued that non-disclosure was
justified by Parole Regulations, subsection 17(5) which permits non-disclosure of information forming the basis of the
decision to revoke parole where, in the Board's opinion, disclosure would threaten the safety of individuals or could
impede investigations under the Act or Regulations. It was argued that the parole system would break down if
individuals were not able to supply information to Correctional Service officers without fear of reprisal. In any case,
the constitutional requirements had been met because "the gist" of the allegations had been communicated to the
applicant, thus satisfying the requirements of section 7 in the parole/penitentiary context
It is no answer to say that the applicant need not be given the information because he already knows it
It may well be that in the absence of the Charter there would be no way to attack the Board’s decision in this case
The individual is entitled to know the case against him under the Charter
o Two reasons for this  to ensure that people do not abuse the process and to ensure that people are not
treated arbitrarily
The requirements of fundamental justice operate on a spectrum  depend on the circumstances of the case
It is argued that the public interest in non-disclosure must be weighed against the individual’s interest in disclosure
No doubt that the applicant’s liberty is conditional  it can be revoked but there is also no doubt that his conditional
liberty is at the high end of the spectrum  his liberty is about as close as that to one with no restrictions as possible
Individual liberty  even liberty with strings attached – weighs very heavily in the balancing of the factors
There is also public interest in employing fair practices and procedures
What is required is enough disclosure to enable the applicant to properly answer the case against him
In relying on information from individuals the question faced in this case is when does the Parole Board have to
disclose the information  if at all
o It only has to disclose the information if it seeks to rely on it  if it does not need to rely on the information
then it does not have to disclose it
Simply stating that the information is accurate is not sufficient  must provide an opportunity for the applicant to
review it and know of it
Also the claim that allowing the applicant access to the information will lead to a crisis in the Parole system is
unsupported by evidence and is just an opinion
The Parole Board has not brought forward any information supporting its position that to not provide the information
would lead to any adverse impacts
The relevant paragraph of the statute appears so broad that it appears to preclude the production of nearly any
evidence simply on the grounds that it was tendered to the Parole Board in confidence  this can never be a
justification for limiting the guarantees of fundamental justice
The provision is not saved by s.1 of the Charter
37
Commercially Sensitive Information
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The third situation presents the possibility of disclosure of information about a business that may generally be
regarded as confidential and that may give competitors an advantage because, for example it may reveal its pricing
practices or contract terms it has been willing to accept
One example was under the Anti-Dumping Act which dealt with information related to charges of dumping into
Canada
Magnasonic Canada v Anti-Dumping Tribunal (1972)
o
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We do not think that section 29(3) requires a departure from the pattern of hearings dictated by the other
provisions of the statute. What it does require, on that view as to its meaning, is that, when information of a
confidential character is tendered at a hearing, a decision must be made as to what steps are required to
comply with section 29(3). The obvious first step in the ordinary case would seem to be that the evidence be
taken in camera. What further steps require to be taken would depend on the circumstances. The most extreme
step that might be required would be, we should have thought, to exclude all competitors or rivals while the
evidence is being taken and to provide such parties afterwards with the sort of report of the evidence taken in
their absence that is contemplated for the parties with reference to confidential evidence taken under section
28.
The Canadian International Trade Tribunal Act contains detailed provisions on disclosure reflecting some of the
concerns over the level of information that is often disclosed in dumping hearings
o Companies are competitors and they are understandably concerned about disclosing too much information at
these types of hearings  want and need some sort of protections for their confidential information
Staff Studies
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The fourth group is composed of claims to disclosure of materials created by the agency itself
Agencies often have large staffs assigned to them and they often prepare reports etc. and members of the public etc.
often request copies of these reports
Participants in administrative processes argue that they should have access to these reports for two reasons
o The information may assist them in preparing their submissions
o Confidence is undermined when staff submissions are not open to the public
Most agencies take the position that staff reports are confidential and will not release them  but there are exceptions
Public interest representatives argue that staff reports should be made public for two reasons
o Not possible to assess the performance of the agency unless this is done
o The public is entitled to know what is happening
Administrators have numerous concerns about disclosure
o Ministerial responsibility would be undermined by disclosure  would also politicize the process
 But agencies should have independence from government so this is not persuasive
 Also agencies should be accountable so some degree of politicization is not bad
o Another concern is that disclosure would mean that all documents would need to be public  but not true 
would only need to make major reports public
o Final concern is about the candour of advice from staff  if reports are disclosed advice may not be as candid
but the goal is to have good advice and if staff is providing good advice candour should not be an issue
Factual portions of staff reports should be public and perhaps the opinion portions should be kept private  that
would assuage both camps – would increase disclosure while keeping much of the important stuff private
Disclosure of staff studies was considered in two Federal Court of Appeal judgments
o Toshiba v Anti-Dumping Tribunal
 Toshiba sought review on the grounds the tribunal had relied on two staff reports that the Tribunal
had not disclosed
 One report was prepared prior to the hearings one after  the preliminary one was made to allow the
Tribunal members to have greater knowledge of the issues and also contains a number of statements
of fact  is a troubling thing
 But most of the information is of a general nature and mostly well known and most of the
information became public through the course of the hearing so the breach of natural justice,
at the most, was technical
38
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One concern with staff reports is that often staff members are experts in the field and they may have significant
persuasive powers  they may be more expert than the decision maker and what role do they ultimately play in the
decision that is taken. This is no problem where staff has no input but when they start having input then questions
start arising over the role they play in the process and what influence they have on the outcome
Law reform commission of Canada recommended that  agencies should, in appropriate cases, release and distribute
information at their disposal, including research papers prepared by individual staff members which outline issues and
disclose relevant information not elsewhere disclosed in documentation available to participants but agency
documents should not attribute to the staff as a whole any official position taken with respect to any issues raised
Official Notice
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Davis: Administrative Law
Where an agency decision rests on official notice of a material fact not appearing in the evidence in the record a party
is entitled, on timely request, to an opportunity to show the contrary
o Official notice is the same type of thing as judicial notice
The cardinal distinction which more than any other governs the use of extra-record facts by courts and agencies is the
distinction between legislative facts and adjudicative facts
When a court or agency finds facts concerning the immediate parties – who did what, when, where, how, and with
what motive or intent – the court or agency is performing an adjudicative function
o These facts are called adjudicative facts
When a court or agency develops law or policy it is acting legislatively  the courts have created the common law
through judicial legislation and the facts which inform the tribunal’s legislative judgments are called legislative facts
Adjudicative facts  facts to which the law is applied in the process of adjudication
Legislative facts  facts which help the tribunal determine the content of law and of policy and help the tribunal to
exercise its judgment or discretion in determining what course of action to take
o Legislative facts are usually general and do not concern the immediate parties
o In most cases the legislative facts are either absent or unimportant because the law and policy have been
previously established
 But that is not always the case
The practical difference between adjudicative and legislative facts is that adjudicative facts must be supported by the
evidence whereas legislative facts either need not, nor in some cases cannot be supported by the evidence
The two major considerations in developing a system of judicial notice are fairness and convenience
o The essential problem is to accommodate one with the other in such a way that neither will be unduly
sacrificed
The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that
convenience should always yield to the requirement of procedural fairness that parties should have opportunity to
meet in the appropriate fashion all facts that influence the disposition of the case
Sivaguru v Canada (Minister of Employment and Immigration) (1992) (FCA)
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Member of the IRB became suspicious of evidence that was being given by the claimant and sought material from the
documentation centre
The member then used this material to lay a trap for the claimant and the court held that this type of behaviour was
not sanctioned by the Act and that it created a reasonable apprehension of bias
Lawal v Canada (Minister of Employment and Immigration) (1991) (FCA)
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Another immigration case where independent gathering of information from newspaper articles occurred  went
outside the process of the hearing to gather information on the claimant to get information and was held to be outside
the power of the Board
Canadian Cable Television Association v American College Sports Collective of Canada (1991) (FCA)
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One of the members of the Board secured data from outside of the hearing that he used in the hearing and in his
decision
o Was held that no remedy was required because he was in dissent and the court felt that even though his
conduct was wrong it did not have a bearing on the outcome of the proceedings
Admissibility of Evidence
Agencies are not governed by the rules of evidence unless their governing statute so binds them
39
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This does not mean that the common law rules of evidence are nullities
o Rules of natural justice or procedural fairness about evidence still apply
Universite du Quebec a Trois-Rivieres v Larocque (1993) (SCC)
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Arbitration award was quashed for wrongfully refusing to admit evidence
The evidence was relevant and crucial to the defence that the university was advancing in the context of a wrongful
dismissal grievance
o Although there is discretion in whether or not to admit evidence there must be an opportunity for those
requesting that the evidence be admitted to state their case
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On the other hand natural justice considerations may also arise where evidence is admitted
o Especially with the loosening of hearsay rules and the already loosened restrictions around hearsay in
administrative proceedings
o But exclusive reliance on hearsay evidence may also be troublesome and lead to a denial of natural justice 
denies the right to cross-examine accuser for example
Cross-Examination
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Cross-examination is one of the most effective ways to test the other side’s story and to get at the heart of an issue
It can be one of the central tenets of natural justice
Armstrong v Canada (Commissioner of the Royal Canadian Mounted Police) [1998] 2 F.C. 666 CA
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the RCMP Act contains a comprehensive and detailed code respecting discharge from the Force. The Act provides
that before a member of the RCMP is recommended for discharge, he or she must be served with written notice1
describing the particulars of the acts or omissions constituting the ground of unsuitability on which the
recommendation for discharge will be based
The member affected has the right to appear before the Board either in person or by counsel to make representations
and present documentary evidence to it, and with leave of the Board he or she may call witnesses
The affected member has the right to appeal the decision of the Board on any ground to the Commissioner of the
RCMP, with whom he or she may file written submissions
The RCMP's evidence against the appellant was presented to the Board in written form only. During the hearing, the
appellant did not request at any time that the authors of the statements contained in the RCMP's documentary
evidence be called for the purpose of cross-examination. On June 8, 1992, the Board released its decision
recommending that the appellant be discharged from the RCMP, on the ground of unsuitability. The appellant
appealed the Board's decision to the Commissioner and the case was referred to the External Review Committee,
which disagreed with the Board's decision that the appellant be discharged from the Force and recommended instead
that she be transferred to another posting.
the first issue raised in this appeal is whether the procedural requirements in the RCMP Act deprived the appellant of
her right to a fair hearing. In particular, the appellant contends that she was denied natural justice because she was not
provided with an opportunity to cross-examine the RCMP's witnesses during the hearing before the Discharge and
Demotion Board
appellant never asked the Board for the opportunity to cross-examine the authors of statements in the RCMP's
documentary evidence, and the evidence before the Board was not conflicting or contradictory. Thus, the Board never
specifically denied the appellant the right to challenge the case against her through cross-examination, and there was
accordingly no breach of the rules of natural justice. In my view, had the appellant wanted to test the RCMP's
evidence through cross-examination, it was incumbent upon her at the very least to attempt to make her wishes known
to the Board
There is little doubt in my mind that the appellant in the present case had a full opportunity to challenge the evidence
against her, and I am therefore unable to conclude that the hearing before the Board lacked procedural fairness due to
the absence of cross-examination
The second issue is whether the appellant was denied natural justice due to a lack of independence on the part of the
Board. Once again, I agree with my colleague McDonald J.A. that the Board met the three criteria for judicial
independence, which are security of tenure, financial security and institutional independence
McDonald  The three major grounds for judicial review were: (1) whether the statutory scheme contained in the
Royal Canadian Mounted Police Act concerning the process and procedure before the Discharge and Demotion Board
deprived the appellant of her right to a fair hearing; (2) whether the statutory scheme contained in the Royal Canadian
40
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Mounted Police Act appointing the Discharge and Demotion Board deprived the appellant of her right to a fair
hearing before an independent trier of fact pursuant to the rules of natural justice (this issue will hereinafter be
referred to as the question of the independence of the Board); and (3) whether the Commissioner considered new
facts, opinions or material in breach of the Royal Canadian Mounted Police Act thereby depriving the appellant of a
right to a fair hearing pursuant to the rules of natural justice.
the Trial Judge held that while the appellant had not been given an opportunity to cross-examine the opposing side's
witness statements, there was nothing in the Act that provided her with this right. Moreover, the appellant did not
request an opportunity to examine any witnesses. She had, therefore, effectively waived her right.
As for the independence of the Board, the Trial Judge found that the Board was independent. Members of the Board
were not allowed to be superiors of the appellant and could not have participated in instituting or processing the case
against her. The names of all Board members were provided to the appellant and the appellant was given a chance to
object
Finally, as for any new facts, material or opinions arising from the résumé of Sgt. Swann, the Trial Judge found that it
was appropriate for a staff member to prepare guidelines for the Commissioner. Even though part of Sgt. Swann's
report was incorporated into the Commissioner's decision, the Commissioner still wrote his own reasons. There had,
therefore, been no improper delegation and no breach of the rules of natural justice.
The appellant appeals from the decision of the Trial Judge on the same grounds arguing that the Trial Judge erred in
not finding that these grounds had been made out. Having listened extensively to the arguments of both counsel, and
having reviewed the vast amount of material put before this Court, as well as the decision of the Trial Judge, it is with
some regret that I find that the appeal must be dismissed. While I do not agree with all of the reasons contained in the
trial judgment, nonetheless, I have been unable to find any error made by the Trial Judge which would warrant
interference by this Court
The right to cross-examine while of principal importance to our judicial system is not an absolute right.
Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose upon a board their
procedures and technical rules of evidence.20
The Royal Canadian Mounted Police Act does not provide a right to cross-examine witnesses to members who are
facing discharge. Interestingly, however, the Royal Canadian Mounted Police Act provides for a right to crossexamination in informal disciplinary actions as well as for boards of inquiry.21
Parliament, therefore, has decided to provide more by way of procedural rights to those who are the subject of a board
of inquiry or disciplinary action than to those who are facing dismissal.
While the omission may seem questionable given the importance of the right at stake, it is not for this Court to
question the wisdom of Parliament. It is sufficient to note that no right to cross-examination is provided in the Act. It
follows that this Court will be reluctant to hinder the Board with the formal trappings of a court unless natural justice
requires that this be done.
I also disagree with the view that by failing to ask for the right to cross-examine, the appellant waived any right she
might have had.
To waive a right a party must be clear as to the consequences of his or her act. The waiver itself must be clear.
Having said this, however, I am of the opinion that the Trial Judge was correct in stating that the rules of natural
justice do not require that the appellant be granted the right to cross-examination in this case. The evidence before the
Court was not contradictory and did not attack the appellant's credibility.
Further, the Royal Canadian Mounted Police Act provides an extensive array of procedural rights and safeguards to
satisfy the requirements of natural justice. As previously stated, courts should be sensitive to the reality that boards
cannot be hindered by the same trappings we find in regular courts. Thus, the Trial Judge was correct in finding that
the nature and effect of the statutory scheme did not deprive the appellant of her right to a fair hearing.
The Limits of the Trial-Type Hearing
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One issue is the appropriate uses and limits of the trial-type hearing – especially for lawyers
McGarity “Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions:
Regulating Carcinogens in EPA and OSHA”
o The purpose of trial-type procedures is to increase the accuracy of agency factual determinations
o A court should not insist that the agency utilize wasteful formal fact-finding procedures for issues in which
such procedures cannot increase the accuracy of the agency’s decision
o Cross-examination may be of assistance in probing inferences  in determining the basis upon which one
forms assumptions
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Also need to consider the costs of a formal fact-finding process  there are the costs in terms of time of the
agency and the participants and it needs to be determined if a formal fact-finding is the best use of resources
 Especially when experts are involved as often their opinions are not open to change
Robinson “The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative
Procedure Reform”
o Cross-examination may not only expose many errors of judgment but the very prospect of cross-examination
can impose a discipline on the presentation
o The knowledge that a written exhibit containing economic data and judgments cannot simply slide
surreptitiously into a giant record but is subject to publicity by cross-examination can have a healthy
disciplinary effect on the presentation of the evidence and the ultimate decision making process
CRTC article
o Practice has been for parties to make submissions and only to answer questions from the Commissioners and
Commission counsel
o Only when there has been the threat of license revocation has there been cross-examination
o This has meant that there have at times been contrary statements made that have been left on the record
unchallenged
o For many matters this type of format has been sufficient but perhaps it is time to change
o One major concern over cross-examination has been that it would take more time
o Often issues arise before the commission where there are adversarial positions and in those circumstances
there should be allowances made for cross-examinations
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Post-Hearing Issues
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Reasons
Both the SPPA and equivalent Alberta legislation require reasons
The Supreme Court, in Baker, stated that it would be the importance of the interest at stake that would trigger the
reasons requirement in the exercise of statutory or prerogative powers
o One threshold seems to be the statutory right of appeal
o The tendency of the courts, since Baker, has been to require reasons
The Content of the Duty to Give Reasons
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What will satisfy the duty to give reasons?
o Are the reasons sufficient to enable the court to effectively scrutinize the decision
o Balanced against this is the consideration that to require unduly elaborate reasons would likely put an
unjustifiable burden on the tribunal
o The balance is going to be value of the reasons vs. the cost of providing the reasons
o If the decision involved an exercise of discretion the reasons should demonstrate that the tribunal recognized
that it had a power to choose and the factors that it considered in making its choice
o Where credibility is an issue a tribunal may not have to expound to any great extent on credibility
Via Rail Canada Inc. v National Transportation Agency [2001] (FCA)
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This was an appeal from the National Transportation Agency's 1995 decision that VIA Rail's Special and Joint
Passenger Tariff 1, section 13-D constituted an undue obstacle to the mobility of persons with disabilities. Section 13D provides that an attendant who is capable of assisting a disabled person to get on and off trains and of attending to
his/her personal needs throughout the trip is entitled to travel for free. Upon investigation of a complaint, the Agency
concluded in 1994 that certain actions and practices of VIA constituted obstacles to the mobility of persons with
disabilities, and that those obstacles were undue because they could have easily been avoided by the carrier
The issues were: whether the Agency erred in law by failing to articulate adequate reasons for its finding (1) that
section 13-D of the tariff constituted an obstacle to the mobility of disabled persons; and (2) that such obstacle was
"undue".
the tariff provides that an attendant who is capable of providing assistance to a disabled person who is unable to travel
alone is entitled to travel for free
It indicated that VIA could add to the amended tariff a proviso allowing it to inquire, at the time of booking, whether
the passenger's attendant would be able to assist VIA personnel, if necessary. It also ordered VIA to issue a bulletin to
its employees informing them of the changes and to make consequential amendments to various printed materials
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Although the Act itself imposes no duty on the Agency to give reasons, section 39 of the National Transportation
Agency General Rules does impose such a duty.
o In this case, the Agency chose to provide its reasons in writing
The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of
focussing the decision maker on the relevant factors and evidence
Reasons also provide the parties with the assurance that their representations have been considered
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They
provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing
body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is
particularly important when the decision is subject to a deferential standard of review.
Finally, in the case of a regulated industry, the regulator's reasons for making a particular decision provide guidance to
others who are subject to the regulator's jurisdiction. They provide a standard by which future activities of those
affected by the decision can be measured.
In my view, the general propositions stated above are all applicable in the circumstances of the case at bar. However,
in this case, I believe that the adequacy of the Agency's reasons must be measured with particular reference to the
extent to which they provide VIA with sufficient guidance to formulate their tariff without running afoul of the
Agency and to the extent to which they give effect to VIA's right of appeal by providing this Court with sufficient
insight into the Agency's reasoning process and the factors that it considered.
In the words of the tariff, did the Agency's reasons provide sufficient indication of the reasoning process by which it
determined that it is an obstacle to the mobility of a disabled passenger to require that an attendant, travelling on the
same ticket as the passenger, be capable of assisting the passenger in getting on and off the train?
In my view, the conclusion that the tariff was an obstacle is not supported by sufficient indication of the reasoning
process engaged in by the Agency. The reasons provide no intimation of what constitutes an obstacle to the mobility
of a disabled passenger nor are they sufficiently clear
Not only has the Agency failed to articulate any definition but it also does not appear to have engaged in any reasoned
consideration of the tariff provisions. How does the requirement that an attendant be capable of assisting the disabled
person with whom they are travelling to board and deboard a train constitute an obstacle to the mobility of the
disabled person? This is a question which the Agency did not answer and hence it erred in law
There are a number of other inconsistencies on the face of the reasons that provide support for my view that the
reasons with respect to the finding that the tariff was an obstacle were inadequate
I conclude, therefore, that the Agency erred in law by failing to provide adequate reasons for its decision that the tariff
was an obstacle. Its reasons did not provide sufficient insight into the reasoning process followed. Moreover, they
were not sufficiently clear with respect to the conclusion that is in issue
Did the Agency err in law by failing to provide adequate reasons for its conclusion that any obstacle posed by the
tariff was "undue"?
In the case at bar, the Agency's reasons do not reveal sufficient indicators of the reasoning process it followed in
interpreting the term "undue". They include no definition of the term "undue" or any indication of a "rule or standard
defining what is 'due'." In its submissions to this Court, the Agency argued that the definition that it had applied was
that articulated in its November 1994 reasons: "the obstacles ... were undue because they could have easily been
avoided by the carrier." Even if this could be said to be true, the statement can only lead me to conclude that the
Agency undertook no contextual analysis of the issue. It looked only to its perception of VIA's ability to avoid the
obstacle. In my opinion, this was not sufficient.
each carrier, so far as practicable, should conduct its business under conditions which do not constitute an undue
obstacle to the mobility of disabled persons. The use of the words "so far as practicable", in addition to the use of the
term "undue" provides further support for my view that the Agency was required to undertake a balancing of interests
such that the satisfaction of one interest does not create disproportionate hardship affecting the other interest
In summary, the Agency failed to provide sufficient insight into the reasoning process that it followed or the factors
that it considered in determining that any obstacle provided by the tariff was undue. In so doing, it erred in law.
In my opinion, the reasons provided by the Agency in its 1994 and 1995 decisions with respect to whether the tariff
constituted an undue obstacle to the mobility of disabled persons were inadequate. Specifically, they fail to provide
sufficient indication of the reasoning process which the Agency might have followed or of what factors the Agency
might have considered relevant.
Effect of Breach of the Duty to Give Reasons
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If it is apparent from the reasons that the decision maker misinterpreted the legislation or committed some other error
of law the decision may be set aside
If an agency is required to give reasons and fails to do so a court may require them to do so through mandamus
There is a traditional reluctance on behalf of courts to require tribunals to give reasons for their decisions  in
England for example courts have some reticence to ordering tribunals to give reasons
In Canada where there are no reasons decisions may be set aside as being erroneous in law
o If there are no reasons some view the decision as null and void
Generally if there is a duty to provide reasons, and none are given, the court will remit the matter back to the tribunal
for reasons or they may reverse the decision altogether
It is also open to remit the matter for a rehearing but it may be difficult to get the tribunal back together again 
could get them just to rehear parts that need clarification, but that too could be difficult
The principal common law remedies available when the courts exercise a supervisory jurisdiction over administrative
tribunals  certiorari, prohibition, mandamus, injunctions, and declarations, are discretionary
Where there are numerous reasons – some good, some bad – the court could opt to reject the bad reasons, but that is
not likely to happen and rather the court is not likely to speculate as to how the tribunal would have decided the
dispute if it had realized that it could not rely in law on all of the reasons given
Chapter Six – Institutional Decisions
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Some decisions of administrative agencies are made in individual ways  an individual makes decisions
Other decisions are the products of institutionalized decision making
There are many different degrees, processes, and reasons for these decisions but two themes are dominant
o The sheer volume of decisions to be made may demand a large staff and some arrangement for dispersal of
authority, specialization and control
o The range and complexity of the issues may make it impossible for any individual or small group of
individuals to have the time, expertise and perspective to make an intelligent decision
The strengths of institutional decisions are the ability to make large volumes of decisions and the opportunities to
establish internal checks and balances, specialization among staff members, and a sharing of expertise, opinions and
perspective
The weaknesses are the general weaknesses of bureaucracies especially the large possibilities for anonymity, loss of
authority by the senior levels, inconsistency, and impersonal treatment of those who are affected by the decision
making
There is no discrete legal doctrine about institutional decision making, although some aspects of the duty of fairness
have proved particularly relevant such as the rule restricting the delegation of legal powers and duties, the principle
that only those who heard the evidence and argument may participate in the decision, the duty of disclosure and the
impartiality and independence of the decision maker
Delegation
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Willis  Delegatus Non Potest Delegare
o The maxim does not state a rule of law it is at most a rule of construction and in applying it to a statute there
of course must be a consideration of the language of the whole enactment and of its purposes and objects
o As a rule of construction for a section in the statute which confers a discretion on an authority named therein,
the maxim applies: to an authority empowered to lay down general rules (legislative power); to an authority
empowered to decide a particular issue affecting the rights of an individual, be it a magistrate, a municipal
authority, a wartime controller or a minister of the Crown; to an authority empowered to determine whether
legal proceedings shall or shall not be initiated against an individual; and even to an authority empowered to
do an act involving the exercise of practically no discretion, such as a utility company operating under a
charter, and a person serving a distress warrant
o It applies in short, to all persons who are empowered by statute to do anything
o Delegation applies to the conferring of a power to do something which otherwise that person would have to
do
o But who is to do what the statute says is to be done
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The prima facie rule of construction is that the literal interpretation of the statute applies  nothing is
to be added  it says what it says and that it what you need to follow
This rule may be displaced by a section in the statute indicating that the delegated authority may itself
delegate the authority  but what if there is no such clause?
Vine v National Dock Labour Board (1957 – AC 488 (Eng. HL))
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The National Dock Labour Board was responsible for allocating dock labourers to stevedoring companies and had
express power to delegate its function to local dock labour boards. Vine was assigned work but did not report. The
company complained and a discipline committee of the local board discharged him  he brought an action for
wrongful dismissal claiming that the local board did not have the ability to delegate its power to discipline and he won
at trial and on appeal
Held that the board did not have the authority to delegate disciplinary matters
o The duty – and the power – in this case is too important to be delegated absent express power
Consultations Among Agency Members
International Woodworkers of America, Local 2-69 v. Consolidated Bathurst Packaging Ltd (1983)(SCC)
o
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Appellant (company) applied for judicial review of the Board's decision on the ground that the rules of natural justice
had been breached. The application was granted by the Divisional Court but was disallowed on appeal. At issue here
was whether the two rules of natural justice had been breached: (a) that the adjudicator be independent and unbiased,
that he who decides must hear, and (b) the audi alteram partem rule, the right to know the case to be met
OLRB decision
 The purpose of the general meetings of the board is so that there can be clarity of purpose and so that the
policies can be clearly articulated
 The impugned meeting is but a part of the internal mechanism of the Board which has become part of a
system designed to achieve maximum effectiveness in labour relations
 Any panel of the Board may convene such a meeting  the decision is left up to the panel hearing the matter
and the full meeting is only meant to address policy implications of any decision
 Draft decisions are discussed at these meetings
 Dismissed the appeal
Courts  company succeeded at Divisional court, lost on appeal, and appealed to SCC
Sopinka (dissent)
There is no evidence that the procedure at the meeting in question departed from the Board's usual practice, whereby
discussion is limited to the policy implications of a draft decision, the facts contained in the decision are taken as
given, no vote or consensus is taken, no minutes are kept, and no attendance is recorded. The practice is not a recent
innovation. It goes back at least as far as 1971 when it was referred to, disapprovingly
The full Board meeting might very well have affected the outcome. The Board in its reasons on reconsideration does
not directly seek to refute this inference. It does affirm that the final decision was that of the panel. There are two
difficulties which confront the Board in seeking to negate the inference. First, I find it difficult to understand how the
full Board practice can achieve its purpose of bringing about uniformity without affecting the decision of individual
panels. Uniformity can only be achieved if some decisions are brought into line with others by the uniform application
of policy. The second difficulty is that in matters affecting the integrity of the decision-making process, it is sufficient
if there is an appearance of injustice.
The full Board hearing in this case is said to violate the principles of natural justice in two respects: first, that
members of the Board who did not preside at the hearing participated in the decision; and second, that the case is
decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there
was no opportunity to make submissions
Although these are distinct principles of natural justice, they have evolved out of the same concern: a party to an
administrative proceeding entitled to a hearing is entitled to a meaningful hearing in the sense that the 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
Although I am satisfied that, at least formally, the decision here was made by the three-member panel, that does not
determine the matter. The question, rather, is whether the introduction of policy considerations in the decision-making
process by members of the Board who were not present at the hearing and their application by members who were
present but who heard no submissions from the parties in respect thereto, violates the rationale underlying the above
principles
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In answering this question, it is necessary to consider the role of policy in the decision-making processes of
administrative tribunals. There is no question that the Labour Board is entitled to consider policy in arriving at its
decisions
The Board, then, is obliged by statute to hold a hearing and to give the parties a full opportunity to present evidence
and submissions. It is also entitled to apply policy. At a time when the content of the rules of natural justice was
determined by classifying tribunals as quasi-judicial or administrative, the Board would have been classified as
exercising hybrid functions. A tribunal exercising hybrid functions did so in two stages. As a quasi-judicial tribunal it
was required to comply with the rules of natural justice. In making its decision, however, it assumed its administrative
phase and could overrule the conclusion which was indicated at the hearing by the application of administrative policy
Although tribunals exercising so-called administrative functions were subject to a general duty of fairness, disclosure
of the policy to be applied by the tribunal was generally not a requirement. In the case of hybrid tribunals, therefore,
such non-disclosure at the quasi-judicial stage would not have been considered a breach of the rules of natural justice
This view of the role of policy must be reappraised in light of the evolution of the law relating to the classification of
tribunals and the application to them of the rules of natural justice and fairness
It is no longer appropriate, therefore, to conclude that failure to disclose policy to be applied by a tribunal is not a
denial of natural justice without examining all the circumstances under which the tribunal operates
The proceedings which are the subject of this appeal involve the exercise of extraordinary powers by the Board
If a party has the right to attack policy in the same fashion as fact, it follows that to deprive the party of that right is a
denial of a full opportunity to present evidence and is unfair. Policy in this respect is not like the law which cannot be
the subject of evidence or cross-examination. Policy often has a factual component which the law does not.
Furthermore, under our system of justice it is crucial that the law be correctly applied. The court or tribunal is not
bound to rely solely on the law as presented by the parties.
There is not necessarily one policy that is the right policy. Often there are competing policies, selection of the better
policy being dependent on being subjected to the type of scrutiny which was ordered in Innisfil, supra
Wade (Administrative Law) - Policy is of course the basis of administrative discretion in a great many cases, but this
is no reason why the discretion should not be exercised fairly vis-a-vis any person who will be adversely affected. The
decision will require the weighing of any such person's interests against the claims of policy; and this cannot fairly be
done without giving that person an opportunity to be heard
In my opinion, therefore, the full Board hearing deprived the appellant of a full opportunity to present evidence and
submissions and constituted a denial of natural justice
While achieving uniformity in the decisions of individual boards is a laudable purpose, it cannot be done at the
expense of the rules of natural justice. If it is the desire of the legislature that this purpose be pursued it is free to
authorize the full Board procedure
The respondents do not contend that if a breach of natural justice has occurred, the privative clause in s. 108 of the
Act would apply. They have, however, submitted that if there was a breach of natural justice, it was technical only and
hence no remedy should be available
The submission that there is no prejudice as a result of a technical breach of rules of natural justice requires that the
party making the allegation establish this fact. To do so in this case it would be necessary for the respondents to
satisfy the court that the matters discussed were all matters that had been brought out at the hearing. This has not
occurred; unlike Toshiba there is no report or minutes of the full Board meeting against which the hearing
proceedings can be compared. The appellant can hardly be expected to establish prejudice when it was not privy to the
discussion before the full Board and there is no evidence as to what in fact was discussed. In the absence of such
evidence the gravity of the breach of natural justice cannot be assessed, and I cannot conclude that no substantial
wrong has occurred
Nor can I conclude that the full Board procedure is saved by virtue of s. 102(13) of the Labour Relations Act  the
board shall determine its own procedure …..
Gonthier (judgment)
It will be noted that Chairman Adams does not claim that the purpose of full board meetings is to achieve absolute
uniformity in decisions made by different panels in factually similar situations Chairman Adams accepts that "no one
panel of the Board can bind another panel by any decision rendered"
Chairman Adams states that discussions at full board meetings are limited to policy issues, that the facts of each case
must be taken as presented and that no votes are taken nor any attendance recorded
It follows that the full board meetings held by the Board are designed to promote discussion on important policy
issues and to provide an opportunity for members to share their personal experiences in the regulation of labour
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relations. There is no evidence that the particular meeting impugned in this case was used to impose any given
opinion upon the members of the panel or that the spirit of discussion and exchange sought through those meetings
was not present during those deliberations.
Moreover, three sets of reasons were issued by the members of the panel, one member dissenting in part while another
dissented on the principal substantive issue at stake in this case. If this meeting had been held for the purpose of
imposing policy directives on the members of the panel, it certainly did not meet its objective
The appellant argues that the practice of holding full board meetings on policy issues constitutes a breach of a rule of
natural justice appropriately referred to as "he who decides must hear".
Thus, the appellant's position is that panel members must be totally shielded from any discussion which may cause
them to change their minds even if this change of opinion is honest, because the possibility of undue pressure by other
Board members is too ominous to be compatible with principles of natural justice
the appellant's arguments raise issues with respect to two important and distinct rules of natural justice. It has often
been said that these rules can be separated in two categories, namely "that an adjudicator be disinterested and
unbiased (nemo judex in causa sua) and that the parties be given adequate notice and opportunity to be heard (audi
alteram partem)":
Independence is an essential ingredient of the capacity to act fairly and judicially and any procedure or practice which
unduly reduces this capacity must surely be contrary to the rules of natural justice
I agree with the respondent union that the rules of natural justice must take into account the institutional constraints
faced by an administrative tribunal
It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts
of law
The main issue is whether, given the importance of the policy issue at stake in this case and the necessity of
maintaining a high degree of quality and coherence in Board decisions, the rules of natural justice allow a full board
meeting to take place subject to the conditions outlined by the Court of Appeal and, if not, whether a procedure which
allows the parties to be present, such as a full board hearing, is the only acceptable alternative. The advantages of the
practice of holding full board meetings must be weighed against the disadvantages involved in holding discussions in
the absence of the parties
The immensity of the task entrusted to the Board should not be underestimated
The first rationale behind the need to hold full board meetings on important policy issues is the importance of
benefiting from the acquired experience of all the members, chairman and vice-chairmen of the Board. Moreover, the
tripartite nature of the Board makes it even more imperative to promote exchanges of opinions between management
and union representatives
The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated
experience of its members
The second rationale for the practice of holding full board meetings is the fact that the large number of persons who
participate in Board decisions creates the possibility that different panels will decide similar issues in a different
manner. It is obvious that coherence in administrative decision making must be fostered
Given the large number of decisions rendered in the field of labour law, the Board is justified in taking appropriate
measures to ensure that conflicting results are not inadvertently reached in similar cases. The fact that the Board's
decisions are protected by a privative clause (s. 108) makes it even more imperative to take measures such as full
board meetings in order to avoid such conflicting results
A full board meeting is a forum for discussion which, in Cory J.A.'s words (as he then was) is "no more than an
amplification of the research of the hearing panel carried out before they delivered their decision" (at p. 517). Like
many other judicial practices, however, full board meetings entail some imperfections, especially with respect to the
opportunity to be heard and the judicial independence of the decision maker
The question before this Court is whether the disadvantages involved in this practice are sufficiently important to
warrant a holding that it [page329] constitutes a breach of the rules of natural justice or whether full board meetings
are consistent with these rules provided that certain safeguards be observed
I agree that, as a general rule, the members of a panel who actually participate in the decision must have heard all the
evidence as well as all the arguments presented by the parties
o where a tribunal is responsible for hearing and deciding a case, only those members of the tribunal who heard
the case may take part in the decision
o the rule "he who decides must hear", important though it may be, is based on the legislator's supposed
intentions. It therefore does not apply where this is expressly stated to be the case; nor does it apply where a
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review of all the provisions governing the activities of a tribunal leads to the conclusion that the legislator
could not have intended them to apply
In this case, however, the members of the panel who participated in the impugned decision, i.e., Chairman Adams and
Messrs. Wightman and Lee, heard all the evidence and all the arguments. It follows that the cases cited by the
appellant cannot support its argument, nor can the presence of other Board members at the full board meeting amount
to "participation" in the final decision even though their contribution to the discussions which took place at that
meeting can be seen as a "participation" in the decision-making process in the widest sense of that expression.
I am unable to agree with the proposition that any discussion with a person who has not heard the evidence
necessarily vitiates the resulting decision because this discussion might "influence" the decision maker
o it is only fair to add that if every Judge's judgment were vitiated because [page332] he discussed the case with
some other Judge a good many judgments existing as valid and unimpeachable ought to fall; and that if such
discussions were prohibited many more judgments might fall in an appellate Court because of a defect which
must have been detected if the subject had been so discussed
Judicial independence is a long standing principle of our constitutional law which is also part of the rules of natural
justice even in the absence of constitutional protection
It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in
discussions on policy issues raised by a case on which he must render a decision. It also goes without saying that a
formalized consultation process could not be used to force or induce decision makers to adopt positions with which
they do not agree
A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and
opinions nor does it constitute an obstacle to this freedom
The essential difference between full board meetings and informal discussions with colleagues is the possibility that
moral suasion may be felt by the members of the panel if their opinions are not shared by other Board members, the
chairman or vice-chairmen.
However, decision makers are entitled to change their minds whether this change of mind is the result of discussions
with colleagues or the result of their own reflection on the matter. A decision maker may also be swayed by the
opinion of the majority of his colleagues in the interest of adjudicative coherence since this is a relevant criterion to be
taken into consideration even when the decision maker is not bound by any stare decisis rule
It follows that the relevant issue in this case is not whether the practice of holding full board meetings can cause panel
members to change their minds but whether this practice impinges on the ability of panel members to decide
according to their opinions.
There is nothing in the Labour Relations Act which gives either the chairman, the vice-chairmen or other Board
members the power to impose his opinion on any other Board member. However, this de jure situation must not be
thwarted by procedures which may effectively compel or induce panel members to decide against their own
conscience and opinions
the danger that full board meetings may fetter the judicial independence of panel members is not sufficiently present
to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this
Court in Committee for Justice and Liberty
full board meeting set up in accordance with the procedure described by Chairman Adams is not imposed: it is called
at the request of the hearing panel or any of its members. It is carefully designed to foster discussion without trying to
verify whether a consensus has been reached: no minutes are kept, no votes are taken, attendance is voluntary and
presence at the full board meeting is not recorded. The decision is left entirely to the hearing panel. It cannot be said
that this practice is meant to convey to panel members the message that the opinion of the majority of the Board
members present has to be followed
In fact each panel member held to his own opinion
Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram
partem rule because the parties are not aware of what is said at those meetings and do not have an opportunity to reply
to new arguments made by the persons present at the meeting.
For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on
factual matters and discussions on legal or policy issues. In every decision, panel members must determine what the
facts are, what legal standards apply to those facts and, finally, they must assess the evidence in accordance with these
legal standards
The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and an
overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot
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be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow
such persons to vote on the result. Their [page336] participation in discussions dealing with such factual issues is less
problematic when there is no participation in the final decision. However, I am of the view that generally such
discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make
representations on factual issues when they have not heard the evidence
It is already recognized that no new evidence may be presented to panel members in the absence of the parties
The defined practice of the Board at full board meetings is to discuss policy issues on the basis of the facts as they
were determined by the panel  this is not new evidence
The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather
to outline the various legal standards which may be adopted by the Board and discuss their relative value
Policy issues must be approached in a different manner because they have, by definition, an impact which goes
beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an
expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions
and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the
immediate interests [page338] of the parties even though it has an effect on the outcome of the complaint
In this case there was no new policy formulated but rather an already extant policy was being interpreted and applied
 no new grounds were put forth or argued by the parties at any stage
In this case an important policy issue – the validity of the test adopted in Westinghouse – was at stake and the Board
was entitled to call a full board meeting to discuss it
respect for the judicial independence of Board members will impede total coherence in decision making, the Board
through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of
coherence possible under these circumstances
The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that
this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have the flexibility
required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks
inherent in such a practice
The consultation process adopted by the Board formally recognizes the disadvantages inherent in full board meetings,
namely that the judicial independence of the panel members may be fettered by such a practice and that the parties do
not have the opportunity to respond to all the arguments raised at the meeting. The safeguards attached to this
consultation process are, in my opinion, sufficient to allay any fear of violations of the rules of natural justice
provided as well that the parties be advised of any new evidence or grounds and given an opportunity to respond. The
balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with
the nature and purpose of the rules of natural justice
Tremblay v Quebec (Commission des affaires Sociales) (1992 SCC)
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At the relevant time, the respondent Noémie Tremblay was receiving social aid. The Ministère de la Main-d'(oe)uvre
et de la Sécurité du revenu denied her claim to be reimbursed for the cost of certain dressings and bandages. The
respondent appealed this decision to the Commission in accordance with the Social Aid Act, R.S.Q. 1977, c. A-16.
This appeal is governed by the Act respecting the Commission des affaires sociales
Tremblay appealed and a draft decision was made – it was favourable – was sent to the solicitor who was away. The
president of the commission looked at the claim and said he did not agree. One of the original decision makers asked
that the decision be sent to the “consensus table” which is a plenary session of the commission
A majority of the members present at the meeting opposed the view of the original decision makers and one of the
original decision makers changed her mind as well  since the decision makers were not in agreement it was up to
the head of the commission to decide and he decided as he had previously indicated
Tremblay then challenged the decision in the courts  she won in Superior Court (sort of b/c the court did not regard
the first decision as the true decision)
The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the
traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision
was made in accordance with the rules of natural justice. The institutionalized consultation process involving
deliberation is the subject of rules of procedure designed to regulate the "consensus tables" process
Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the
Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature
of judicial review to [page966] examine inter alia the decision maker's decision-making process
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Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative
tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the
rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process
followed did not comply with the rules of natural justice
Of the four questions raised by this appeal, the second is clearly the central one. The Commission is arguing that the
consultation machinery which it has created is consistent with the rules of natural justice. It describes this consultation
machinery not as a compulsory process of consultation but rather as an "automated" process, the purpose of which is
not to impose any particular viewpoint but to assist the decision maker by informing him of the existence of
precedents
The process designed by the commission was in response to the large number of claims that it dealt with and because
of a desire to ensure consistency in application. Clearly, by its very nature administrative law encompasses a wide
variety of types of decision-making. Nonetheless, these must be in keeping with natural justice: accordingly, they
should not impede the ability of the members of an administrative tribunal to decide as they see fit nor should they
create an appearance of bias in the minds of litigants
Dugas J., who heard the parties and was therefore in a better position to assess the specific concrete aspects of the
case, concluded from the testimony that there was undeniable "compulsory consultation" and "systemic pressure". In
such circumstances, the fact that at the end of his testimony Mr. Pothier admitted that the vote taken at the plenary
meeting had not prevented him from abiding by his decision in no way shows absence of constraint
reading the rules for holding plenary meetings of the Commission discloses a number of points which taken together
could create an appearance of bias. In my opinion, the key indicator in this regard is to be found in directive 5, which
provides that a plenary meeting may be requested not only by the quorum responsible for making the decision but also
by the president of the Commission
In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself
be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the
"consensus table" when the president suggests this. Further, the statute clearly provides that it is the decision makers
who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation;
imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the
legislature
If the quorum has the advantage of the experience and opinions of its colleagues it may be in a position to render a
more thoughtful decision. However, it is the quorum, and only the quorum, which has the responsibility of rendering
the decision. If it does not wish to consult, it must be truly free not to do so
The referral process mentioned in directive 5 in cases of new subject-matter also circumvents the will of the
legislature by seeking to establish a prior consensus by persons not responsible for deciding the case. Ordinarily,
precedent is developed by the actual decision makers over a series of decisions. The tribunal hearing a new question
may thus render a number of contradictory judgments before a consensus naturally emerges. This of course is a longer
process; but there is no indication that the legislature intended it to be otherwise
The process created by the Commission thus contains very few of the protective devices which led this Court to
conclude that the practice of the OLRB was in keeping with natural justice. Such protective devices are important
when, as here, what is at issue is also to determine whether there was an appearance of bias or lack of independence.
Certain aspects of the system established by the Commission create at the very least an appearance of "systemic
pressure
Accordingly the Commission's decision, as a product of this system of internal consultation, seems to me to have been
made in breach of the rules of natural justice. The present practice of the Commission of holding plenary meetings
without members of a quorum having requested them, as well as the voting procedure and the keeping of minutes,
may exert undue pressure on decision makers. Such pressure may be an infringement of a litigant's right to a decision
by an independent tribunal. I consider that the institutionalized consultation process currently being used by the
Commission may also give rise to a reasonable apprehension of bias in an informed litigant
It should not be concluded from all this that the Court does not regard the objective sought by the Commission, of
ensuring adjudicative coherence, as important. On the contrary, it has already recognized the manifest benefits which
may be obtained from an institutionalized consultation process
Though this question does not have to be decided in order to dispose of the principal appeal, I will still make certain
observations on the part played by Judge Poirier in the case at bar
The Act respecting the Commission des affaires sociales gives the president of the Commission the power to settle
disputes that may arise within a quorum
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In the case at bar, it is the president who raised the question by sending the quorum a memorandum in which he
indicated the interpretation he would have given to the regulation at issue. This led to engaging the consultation
process which eventually led to the disagreement between the two previously unanimous decision makers. Once the
disagreement emerged, it was the president again who resolved the matter in the way he had indicated in his first
intervention
I should stress first of all that the Court is not in any way questioning the good faith or impartiality of the
Commission's president in the case at bar; the question which concerns it here is one of an appearance of bias, not of
actual bias
I feel that the fact that the president expressed his opinion to members of the quorum, inviting them to reconsider the
decision, and then became a decision maker is hardly consistent with the rules of natural justice
In view of the active part he took in the discussion, the president should have delegated the decision to one of his
vice-presidents. He did not do so. The active part played by Mr. Poirier in this matter thus seems to me likely to create
a reasonable apprehension of bias in an informed observer
The respondent further argued that the procedure used infringes the audi alteram partem rule in that the president did
not hear the parties when he finally decided the matter
The question on which the Commission had to rule was clearly a point of law, namely whether "dressings and
bandages were included in the definition of medical equipment" within the meaning of s. 10.04 of the Regulation on
Social Aid then in effect. Furthermore, the parties chose to plead in writing and so far as one can tell made no
representations at the hearing.
In the case at bar, there is no evidence that new arguments of law were raised at the "consensus table". The
consultation process therefore did not infringe the audi alteram partem rule. Turning to the next stage, it also seems
that no new points were considered by the president at the decision-making stage. He in fact decided on the basis of
the written file as prepared by the quorum
I therefore do not feel the facts of the instant case established a breach of the audi alteram partem rule
Ellis-Don Ltd. v. Ontario (Labour Relations Board)(2001 SCC)
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In 1962, the appellant entered into a collective bargaining agreement to contract or subcontract only to individuals or
companies whose employees were members of the affiliated unions of the Toronto Building and Construction Trades
Council
1990, Local 894 filed a grievance with the Board alleging that the appellant had subcontracted electrical construction
work to non-union subcontractors contrary to the provincial collective agreement. A three-member panel of the Board
heard the grievance. The appellant argued that Local 353 had abandoned its bargaining rights in part because it
omitted the appellant's name from the document filed in the 1971 accreditation proceedings and Local 894 offered no
explanation for the omission. A first draft of the panel's decision would have dismissed the grievance based on the
abandonment of bargaining rights. However, after a full Board meeting discussed the draft, a majority of the panel
found that there had been no abandonment of bargaining rights and upheld the grievance. The appellant applied for
judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed
to a legal or policy change, and claimed that there was a breach of natural justice and a violation of the rules
governing institutional consultations. Prior to the hearing of the application for judicial review, the appellant obtained
an order compelling the Chair of the Board, the Vice-Chair who presided over the panel, and the Registrar of the
Board to give evidence with respect to the procedures implemented by the Board in arriving at its final decision. This
order was reversed on appeal based upon a finding of statutory testimonial immunity. The Divisional Court later
dismissed the application for judicial review and the Court of Appeal affirmed the decision
The appellant faced difficult evidentiary problems when it launched its application for judicial review. The only facts
it knew were that a draft decision dismissing the grievance had been circulated, that a full meeting of the OLRB had
been called at the request of Vice-Chair Susan Tacon, that such a meeting had indeed been held and that the final
arbitration award upheld the grievance
According to the appellant, it fell to the respondents to establish that the proceedings had not been tainted by any
breach of natural justice. Absent evidence to this effect, the Court should find that there was a breach of natural
justice, that the Board had been biased and that the audi alteram partem rule had been violated. This unrebutted
presumption would justify granting the application for judicial review and quashing the decision of the Board
According to the appellant, a change from a favourable to an unfavourable result demonstrates an apparent failure of
natural justice. The appellant asserts that its burden is limited to the demonstration of an apparent failure of natural
justice and that this should suffice to justify the judicial review of the decision of the Board. The appellant would not
have to establish an actual breach
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The case reveals a tension between the fairness of the process and the principle of deliberative secrecy
Deliberative secrecy also favours administrative consistency by granting protection to a consultative process that
involves interaction between the adjudicators who have heard the case and the members who have not, within the
rules set down in Consolidated-Bathurst
Satisfying those requirements of consistency and independence comes undoubtedly at a price, this price being that the
process becomes less open and that litigants face tough hurdles when attempting to build the evidentiary foundation
for a successful challenge based on alleged breaches of natural justice
After the dismissal of its interlocutory motion, the appellant could not examine the officers of the Board on the
process that had been followed. In the absence of any 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, as discussed above.
Dissent – Major and Binnie
In my view, the Board cannot have it both ways. It cannot, with the assistance of the legislature, deny a person in the
position of the appellant all legitimate access to relevant information, then rely on the absence of this same
information as a conclusive answer to the appellant's complaint
Where, as here, a serious question is raised on material emanating from the Board itself as to whether the
Consolidated-Bathurst limits were respected, I do not think it is for the Board to claim that the failure of the party to
obtain the additional evidence that the Board itself has fought to withhold is a complete answer to the claim
The Board relies on the public interest in the effective operation of its docket, but that is not the only public interest at
stake here. Public confidence in the integrity of decision making by courts and adjudicative tribunals is of the highest
importance. Parties coming before the Board should not [page275] come away with a reasonable apprehension that
they were subject to a rogue process. Once it was determined here that the change between the initial decision and the
final decision related to an issue that was almost entirely factual, and was nevertheless put up for discussion at a full
Board meeting
Agency Guidelines
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Some agencies make extensive use of guidelines on the interpretation of their enabling legislation and the exercise of
their discretion
Guidelines can be valuable in assisting agencies and members in hearing and deciding cases
Guidelines are proactive and can be used to formulate a general and comprehensive approach to a problem without
being confined to a particular dispute  they should always be published and publicly available
We are only concerned with how the duty of fairness limits guidelines and their effective use
o In particular the tension between due process and bureaucracy
 That judicial decision makers should be independent and weigh that independence against the
responsibility of government institutions for delivering services to individuals
Chapter 7 – Bias and Lack of Independence
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Everyone has biases in the sense of preferences, preconceptions, or predispositions
This is the same thing for adjudicators  regardless of their training
In fact the way that a particular judge has determined issues relative to the Charter may influence whether or not they
are appointed to the SCC by the Minister of Justice
When it comes to whether a judge should be disqualified for bias therefore the issue is not the disqualification on the
basis of bias for bias’ sake but disqualification on the basis of impermissible bias
But what is impermissible bias?
There is a Latin phrase that applies to circumstances such as these
o Nemo judex in causa propria sua debet esse
 One ought not be a judge in their own case
o This phrase obviously applies in circumstances where the adjudicator will directly benefit from the decision
being contemplated  this is straightforward
 But what of more nuanced involvement in the “cause”  what level of advocacy then leads to
disqualification
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There is also the concept of relational bias  one will be predisposed to favour those causes championed by one’s
friends and disfavour those causes championed by one’s enemies
The question in bias situations is when is the adjudicator too biased to continue to hear the case?
Courts generally will not look to determine what was actually in the adjudicators mind at the time they made the
decision but rather will seek to determine whether the situation was such to give rise to a sufficient risk that an
impermissible degree of bias will in fact exist
Where there is a direct stake in the outcome that is enough to give rise to the perception of bias
The public is entitled to have confidence in the impartial resolution of disputes and that confidence is undermined
when the facts are such as to create an impression in the public mind that a decision maker is too predisposed to a
particular outcome
Also remember that there is somewhat of a sliding scale in terms of acceptable perceptions of bias  there is more
tolerance for different connections depending upon the circumstances
o Where the decision being undertaken involves a high degree of discretion and a high policy content then there
is more latitude than when the decision is more judicial in nature and based on objective facts and questions
of law and focused on an individual
In general the issue of bias is determined on the basis of the common law principles with the only exception being
those statutes that expressly permit the involvement of those who would otherwise be excluded on the basis of
common law principles
Pecuniary and Other Material Interests
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The common law has always treated a direct pecuniary interest as a disqualifying interest
In Dimes v Proprietors of the Grand Junction Canal (1852 England) the Lord Chancellor confirmed orders in favour
of the canal company  he owned shares in the company and the losing company appealed  House of Lords
reversed the order even though they did not feel that the Lord had been influenced because the principle needed to be
upheld
For the longest time even the slightest whiff of a financial interest was sufficient to disqualify but in England the
Court of Appeal has introduced a de minimis exception (Locabail (2000)) which may deal with situations where
adjudicators hold mutual funds or pension plan investments
Energy Probe v. Canada (Atomic Energy Control Board) (1984 FCA)
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The Atomic Energy Control Board approved in principle the renewal of an operating licence for a nuclear generating
station. The applicant sought certiorari and a declaration to quash the decision on the grounds that a member of the
board was affected by pecuniary bias in that he was the president and director of a corporation which supplied
material used in generating stations by the party applying for the licence
Federal Court Trial Division
All parties agree that the licensing function of the A.E.C.B. is an administrative one and not quasi-judicial or judicial
It seems clear, therefore, that the doctrine of fairness, as enunciated by the Supreme Court in Re Nicholson and
Haldimand-Norfolk Regional Board of Com'rs of Police, applies to A.E.C.B. licensing decisions
the requirements of fairness may be different from and less than those required by the rules of natural justice. They
may very well vary depending upon the exact nature of the administrative function to which they are being applied
The rule relating to pecuniary bias, as it has been articulated, is that a direct pecuniary interest, no matter how trivial,
will constitute bias
I can find no direct pecuniary interest
There was no contract conditionally in effect pending the outcome of the new licences to Ontario Hydro. There was
no certainty that Mr. Olsen would sell additional cables to Ontario Hydro for the Pickering units, during the life of the
new licence
was not referred to any case, nor was I able to find any, which was held that this kind of contingent expectation
constitutes direct pecuniary bias. All of the jurisprudence respecting pecuniary bias that I have seen involves
individuals who at the date of the hearing held some sort of direct relationship with the beneficiary of the decision
such that pecuniary benefit might with certainty arise even though that benefit might be miniscule, e.g.: as a ratepayer,
as an estate agent for the transaction in question, as a shareholder
Federal Court of Appeal
The principle of natural justice involved in all matters of bias is, of course, that a tribunal called upon to settle
disputes between individuals ought to be independent, disinterested and impartial and it is trite to say that the most
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obvious and most easily perceived practical application of that principle is that no one should be permitted to be judge
in his own cause
The other, which has since become a sort of legal axiom, is that it "is of fundamental importance that justice should
not only be done but should manifestly and undoubtedly be seen to be done
I do not think that the word "direct", when used by the judges and the textbooks to qualify the interest required to
constitute the peremptorily disqualifying pecuniary bias, should be given such a strict and narrow interpretation that
any indirect or uncertain advantage would not have to be considered; the word, in my view, is used in the sense of not
too remote or too contingent or too speculative
The only rational requirements are that the benefit come from the decision itself and that it be a likely enough effect to
"colour" the case in his eyes. It would appear to me that the presence of an immediate possibility, not to say
probability, of gain to be coming to him directly or indirectly as a result of his decision would be enough to render
someone unfit to make it.
The mere possibility that a profit could be realized in the future out of other contracts awarded in the course of
construction of other units was no doubt too alien, contingent and remote to constitute pecuniary bias with respect to
the decision to be made at that time.
I do not see "pecuniary bias" and "reasonable apprehension of bias" as being two subcategories of bias. Such a
distinction would appear to me somewhat difficult to defend logically since it would present no basis for comparison,
one group being identified by the nature of the interest, the other by the possible reaction the presence thereof may
inspire in the mind of the public.
If I have chosen to approach the matter and set forth my view thereof on the assumed basis that the common law rules
against bias, as they have evolved in the jurisprudence, were fully applicable to an administrative body like the
respondent, it is because of the position to that effect adopted by my brother judges in their reasons for judgment
The law of bias was developed with regard to the exercise of all sorts of judicial or quasi- judicial functions, so that, in
the process, it was easily extended from courts to tribunals and to all other bodies called upon to determine questions
affecting the civil rights of individuals
It is obvious that there is indeed "a requirement for an unbiased decision-maker". It cannot be doubted that the law
imposes a duty on anyone called upon to decide anything under a statute to act in good faith and with an open mind
It seems to me quite normal that the rules of fairness cover the two aspects of those of natural justice from which they
derive so as to establish safeguards not only against arbitrariness and despotism but also against bias
As I see it in practice, to operate disqualification, the pecuniary interest ought to be more immediate and certain and
the non-pecuniary interest must give rise to very substantial grounds for apprehending lack of objectivity. All this may
give rise to difficult problems of application in real life but the idea is of course valid
This view that the rules of the law of bias cannot be applied with all their rigidity to a board like the respondent
reinforces (if need be) my conviction in this case that the pecuniary interest Mr. Olsen is said to have had in the
decision was far too remote and uncertain to have been a cause for his disqualification
The classification of a function as judicial or quasi-judicial is no longer a requirement to sustain a challenge on the
basis of bias  SCC  but the standard of detachment will vary with the nature of the role being performed
The general test for whether an adjudicator or decision maker should be disqualified comes from Committee for
Justice and Liberty v National Energy Board (1978) (de Grandpre in dissent at 394-395)
o The 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
Some factors which may lead to an apprehension of bias include (from Energy Probe (CA)
o kinship, friendship, partisanship, particular professional or business relationship with one of the parties,
animosity towards someone interested, predetermined mind as to the issue involved
In essence this list of disqualifying factors can be broken down into four categories
o Antagonism during a hearing by a decision maker toward a party or his or her counsel or witnesses
 The most common manifestations are aggressive questioning or commnets about testimony
 Such conduct may also manifest an attitude toward the issue to be decided
 Antagonism could also be an issue in written or paper hearings – Baker
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The requirement for balance during the hearing is not confined to the designated decision makers but
also reaches lawyers who are employed to assist a tribunal at the hearing
Association between parties and decision maker
 Where there is some direct (or possibly indirect) relationship between the decision maker and a party
to the dispute there is possibility for a reasonable apprehension of bias to be raised
Involvement of decision maker in earlier stage of process
 This is where Committee for Justice and Liberty arose  the chairman of the National Energy Board
was a former president of Canada Development Corporation which was one of the companies that had
formed to make up the Arctic Gas Pipeline Company which made an application to the Board for a
pipeline  some participants in the hearing argued that this created a reasonable apprehension of bias
and the SCC agreed
 The more usual cases of prior involvement are ones in which a decision maker has in the same or
another capacity already heard the matter before the tribunal or been involved in the investigation and
decision to proceed with the matter being heard
 Problems about prior involvement can arise in situations where an appeal from a decision is permitted
 In the realm of appeals the most obvious possibility is that a person makes the initial decision
and then hears the appeal, either alone or as part of an appeal tribunal
 This arrangement is generally accepted as creating a reasonable apprehension of bias
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) (1996 SCC)
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The regie revoked the company’s liquor permits for violations of the statute. The company sought a declaration that
various provisions of the Quebec liquor licensing statute were invalid in terms of the Quebec Charter (s.23)
o Section requires that where a tribunal is acting in a judicial or quasi-judicial fashion it must be both
independent and impartial
Company was successful in both the Superior Court and Court of Appeal
Judgment
In the case at bar, the respondent's concerns are related first to the Régie's multiple functions and to the impact of that
multiplicity of functions on the duties of its various employees. The respondent thus concentrated on the context in
which the decision makers operate and noted certain institutional characteristics capable in its view of affecting their
state of mind, and accordingly raising an apprehension of bias. These submissions therefore concerned impartiality
The test for impartiality is well established – Committee for Justice and Liberty
Whether appearing before an administrative tribunal or a court of law, a litigant has a right to expect that an impartial
adjudicator will deal with his or her claims. As is the case with the courts, an informed observer analysing the
structure of an administrative tribunal will reach one of two conclusions: he or she either will or will not have a
reasonable apprehension of bias.
That having been said, the informed person's assessment will always depend on the circumstances. The nature of the
dispute to be decided, the other duties of the administrative agency and the operational context as a whole will of
course affect the assessment.
The perception of impartiality remains essential to maintaining public confidence in the justice system
The arguments against the Régie des permis d'alcool relate primarily to its role at various stages in the liquor permit
cancellation process. The Act authorizes employees of the Régie to participate in the investigation, the filing of
complaints, the presentation of the case to the directors and the decision
A plurality of functions in a single administrative agency is not necessarily problematic. This Court has already
suggested that such a multifunctional structure does not in itself always raise an apprehension of bias (Brousseau)
Although an overlapping of functions is not always a ground for concern, it must nevertheless not result in
excessively close relations among employees involved in different stages of the process
In practice, employees of the Régie are involved at every stage of the process leading up to the cancellation of a liquor
permit, from investigation to adjudication. Thus, the Act authorizes the Régie to require permit holders to provide
information
Régie may summon a permit holder of its own initiative or on the application of any interested person, including the
Minister of Public Security
If the Régie decides to hold a hearing, a notice of summons drafted by a legal services lawyer is sent to the permit
holder. In the case at bar, the notice was signed by the chairman of the Régie. Where a ground related to public
tranquility is involved, a hearing is then held before at least two directors designated by the chairman (ss. 15 and 16).
One of the legal services lawyers acts as counsel for the Régie at that hearing. The directors must decide the matter
55
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and, in the case of a tied vote, the matter is referred to the Régie sitting in plenary session. The proceedings are
completed with the publication of written reasons
This detailed description of the Régie's structure and operations shows that the issue of the role of the lawyers
employed by legal services is at the heart of this appeal.
In my view, an informed person having thought the matter through would in this regard have a reasonable
apprehension of bias in a substantial number of cases.
The Act and regulations do not define the duties of these jurists. The Régie's annual report, however, and the
description of their jobs at the Régie, show that they are called upon to review files in order to advise the Régie on the
action to be taken, prepare files, draft notices of summons, present arguments to the directors and draft opinions.
The annual report and the silence of the Act and regulations leave open the possibility of the same jurist
performing these various functions in the same matter.
The annual report mentions no measures taken to separate the lawyers involved at different stages of the process.
Yet it seems to me that such measures, the precise limits of which I will deliberately refrain from outlining, are
essential in the circumstances.
Evidence as to the role of the lawyers and the allocation of tasks among them is incomplete, but the possibility that a
jurist who has made submissions to the directors might then advise them in respect of the same matter is disturbing,
especially since some of the directors have no legal training. In this regard, I agree with Brossard J.A.
o In matters of institutional bias, it is the reasonable apprehension of the informed person that we must
consider and not the proven or presumed existence of an actual conflict of interest
Furthermore, the courts have not hesitated to declare on the basis of the rules of natural justice that such a lack of
separation of functions in a lawyer raises a reasonable apprehension of bias
Régie's lawyers could not advise the directors and make submissions to them without there being a reasonable
apprehension of bias.
Prosecuting counsel must in no circumstances be in a position to participate in the adjudication process
The Court of Appeal's decision was also based on the fact that the directors could intervene at various stages in the
permit cancellation process
It must be noted, however, that the Act and regulations authorize the chairman to initiate an investigation, decide to
hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so
desires. Furthermore, the annual report suggests that other directors sometimes make the decision to hold a hearing,
and it does not rule out the possibility that those directors might then decide the case on its merits. In the case at bar,
these factors can only reinforce the reasonable apprehension of bias an informed person would have in respect of the
Régie owing to the role of counsel
The fact that the Régie, as an institution, participates in the process of investigation, summoning and adjudication is
not in itself problematic. However, the possibility that a particular director could, following the investigation, decide
to hold a hearing and could then participate in the decision-making process would cause an informed person to have a
reasonable apprehension of bias in a substantial number of cases. It seems to me that, as with the Régie's jurists, a
form of separation among the directors involved in the various stages of the process is necessary to counter that
apprehension of bias
Attitudinal Bias
Paine v University of Toronto (1980) Div. Ct. (1981) (C.A.)
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Initial ruling
Paine was an assistant professor in the Fine Arts department and had applied for tenure
The tenure committee had adopted rules that were not specifically authorized by any statutory provision
An assessment was requested from all tenured members of the Department of Fine Arts as internal referees. One such
internal assessment was negative, the referee stating that it was clear in his mind for some time that the Candidate was
not acceptable for tenure
The Candidate was advised by letter dated March 5, 1975, that the membership of the Committee would probably
include three tenured department members and at least one tenured person from outside the department but within the
university in a cognate discipline. He was advised "it is up to you to let me know, with substantive reasons, whether
there are any potential members in those categories to whom you wish to object. If you enter no objections, I must
assume you have none….”
On April 11 and 15, 1975, the Committee met and decided to recommend denial of tenure and termination of the
Candidate's appointment as of June 30, 1976, by a vote of five to zero with two abstentions
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In our view, the one overwhelming consideration which points to procedural unfairness is the fact that, with prior
knowledge of the views that he had previously expressed, the chairman of the Tenure Committee appointed to it a
tenured senior member of the Department of Fine Arts who had submitted a thoroughly negative assessment of Mr.
Paine's merits as an instructor and artist concluding with a statement to the effect that the writer had concluded some
time before that Mr. Paine was "not acceptable for tenure".
The presence of that member constituted unfairness and certainly made the likelihood of unfairness apparent to any
who knew or became aware of the member's previous statement
Regardless of the fact that there was an appeal to the Appeals Committee and indeed a second appeal directed by the
president after receiving the report of the ombudsman, there was really no de novo hearing on fresh material and we
do not think that any of the subsequent appeals or hearings had or could have had the effect of validating the decision
of the Tenure Committee so constituted
It is argued that such a body is not in fact acting in a judicial or quasi-judicial capacity but rather as a jury of the
applicant's peers
In our view, there is nothing inconsistent with the concept of judgment by one's peers in a requirement that
proceedings must be fair. Our criminal justice system is based fundamentally upon the procedure of trial by jury
which is historically founded upon the concept of judgment by one's peers. Nevertheless, bias or apprehended bias has
long been recognized by statute and by common law as a valid ground upon which to challenge a potential juryman.
A trial is no less a trial by one's peers if those among them who are obviously biased have been previously eliminated
 application of Paine was granted
Court of Appeal
Allowed the university’s appeal
The Divisional Court found that there was unfairness in the presence on the Tenure Committee of a member who, as a
referee, had submitted a thoroughly negative assessment of Mr. Paine's merits as an instructor and artist, concluding
with a statement to the effect that the writer had concluded some time before that Mr. Paine was "not acceptable for
tenure".
A recommendation to grant tenure need to be approved by only five of the seven members of the committee, and it is
worth noting that not one of the members approved Mr. Paine's application
The question is whether, at the end of the day (to use an English expression), Mr. Paine has shown that he was treated
with such manifest unfairness as to call for intervention by the court
I think this is not a case where the court should intervene to substitute its own views for those of the review
committee's.
Other judge  there is no suggestion that there were "flagrant violations" of procedural fairness or otherwise This is
not, in my view, the exceptional case in which there is manifest error on the part of the appeal tribunals nor is it a
flagrant case of injustice at any level of the proceedings which demands that the court interfere.
In requiring the applicant in such a case to demonstrate “manifest unfairness” or “flagrant violations of procedural
fairness” the Court of Appeal appears to be adopting a higher threshold for judicial intervention than is normally
applied in procedural unfairness cases
o In part this is contingent on the court’s deference to the internal processes of the university  a posture that
was not customarily adopted by the courts prior to Baker
Great Atlantic & Pacific Co. of Canada v Ontario (Human Rights Commission) (1993 Gen Div.)
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It is the position of both A & P, and the union, that there exists a real and reasonable apprehension of bias, and
perhaps acts of bias, on the part of Constance Backhouse as the Board appointed to hear and decide the complaints in
issue
During the course of argument, we advised counsel that we did not think it necessary to decide whether Miss
Backhouse's public advocacy in favour of the same position advanced before her by the Commission in relation to
systemic sex discrimination went so far as to create a reasonable apprehension of bias in relation to this case. Rather,
we told counsel that for the purposes of determining this issue, our attention was focused only upon the fact of Miss
Backhouse's involvement in the proceedings outstanding before the Commission in which she was, at the relevant
times, one of the complainants
In our view, the unique aspect of this case is that Miss Backhouse went beyond the position of an advocate and
descended personally, as a party, into the very arena over which she has been appointed to preside in relation to the
very same issues she has to decide
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By becoming a personal complainant before the very commission that was prosecuting the similar case before her, she
personally selected one of the parties before her as her own advocate to pursue her personal complaint about the same
issue
Counsel are in agreement that there has been no decided case in this province which deals with an allegation of
systemic discrimination on the grounds of sex. Miss Backhouse is therefore in a position, in this case, should she
continue as the Board, to vindicate the position she had taken as a personal complainant in a similar case. It is trite to
state that simple justice requires a high degree of neutrality. We do not think that would be attained if Miss Backhouse
was to continue as the Board. In our opinion, the appropriate test has not been met
Therefore, because there is, in our opinion, a reasonable apprehension of bias, the application of the union in this
respect is allowed and the proceedings before the Board are quashed. The Minister is at liberty to appoint another
board to adjudicate the remaining complaints against the union if so requested to do so
One important aspect to this case is the appointment of human rights activists to adjudicate on complaints under
human rights codes  prior involvement would shed some light on the issues but too much involvement may possibly
taint the overall outcome of the case
Wewaykum Indian Band v Canada [2003] 2 SCR 259
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Band alleges that the 2002 decision of the SCC (unanimous) of the same name was void for reasonable apprehension
of bias b/c Binnie was a member of the Attorney General of Canada office in the early stages of the claim back in the
1980’s  there is no allegation of actual bias whatsoever
Court concluded that there was no reasonable apprehension of bias on behalf of Binnie
Campbell River and Cape Mudge both agree that actual bias is not at issue. Neither band makes any submission that
actual bias affected Binnie J., the reasons for judgment or the judgment of the Court. Both bands unreservedly accept
Binnie J.'s statement that he had no recollection of personal involvement in the case. The bands submit, however, that
the material disclosed by the Crown gives rise to a reasonable apprehension of bias
Campbell River submitted that the test for reasonable apprehension of bias is met where a judge sits in a case in which
he or she has had any prior involvement. In Campbell River's view, the documents disclosed by the Crown indicate
that Binnie J.'s prior involvement in the band's claim was substantial. Like Cape Mudge, Campbell River submitted
that had Binnie J.'s earlier involvement in these matters come to light prior to the hearing he would have had no
choice but to recuse himself absent the consent of all the parties
The Crown submitted that the Court's judgment should not be set aside and that no other remedy was required. In the
Crown's view, the rule that a judge is disqualified if he or she previously acted as counsel in the case is subject to the
general principle that disqualification results only where there is a reasonable apprehension of bias
The Crown submitted that since Binnie J. had no recollection, he brought no knowledge of his prior participation by
way of discussions about Campbell River's claim. As a result, there was neither actual bias nor any reasonable
apprehension of bias on his part
The Attorney General of British Columbia further submitted that since the decision-maker was the Court as a whole, a
reasonable apprehension of bias in respect of Binnie J. is not legally significant unless it also establishes a reasonable
apprehension of bias in respect of the judgment of the Court as a whole. In this case, the judgment of the Court as a
whole is not tainted by any apprehension of bias
The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open
mind.
i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary
It is the key to our judicial process, and must be presumed
presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias
in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a
stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a
finding that the judge must be disqualified.
The criterion for impartiality is that expressed in Committee for Justice and Liberty
Determining whether the judge brought or would bring prejudice into consideration as a matter of fact is rarely an
issue. Of course, where this can be established, it will inevitably lead to the disqualification of the judge. But this said,
most arguments for disqualification typically begin with an acknowledgment by all parties that there was no actual
bias, and move on to a consideration of the reasonable apprehension of bias
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Saying that there was "no actual bias" can mean one of three things: that actual bias need not be established because
reasonable apprehension of bias can be viewed as a surrogate for it; that unconscious bias can exist, even where the
judge is in good faith; or that the presence or absence of actual bias is not the relevant inquiry. We take each in turn
First, when parties say that there was no actual bias on the part of the judge, they may mean that the current standard
for disqualification does not require that they prove it. In that sense, the "reasonable apprehension of bias" can be seen
as a surrogate for actual bias, on the assumption that it may be unwise or unrealistic to require that kind of evidence
Second, when parties say that there was no actual bias on the part of the judge, they may be conceding that the judge
was acting in good faith, and was not consciously relying on inappropriate preconceptions, but was nevertheless
unconsciously biased
Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply
not the relevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.'s aphorism
that "it is not merely of some importance but is of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done"
Of the three justifications for the objective standard of reasonable apprehension of bias, the last is the most demanding
for the judicial system, because it countenances the possibility that justice might not be seen to be done, even where it
is undoubtedly done -- that is, it envisions the possibility that a decision-maker may be totally impartial in
circumstances which nevertheless create a reasonable apprehension of bias, requiring his or her disqualification.
To sum up, if disqualification is to be argued here, it can only be argued on the basis of a reasonable apprehension of
bias. It can only succeed if it is established that reasonable, right-minded and properly informed persons would think
that Binnie J. was consciously or unconsciously influenced in an inappropriate manner by his participation in this case
over 15 years before he heard it here in the Supreme Court of Canada. We now move to this aspect of the matter
in circumstances such as the present one, where the issue of disqualification arises after judgment has been rendered,
rather than at an earlier time in the proceedings, it is neither helpful nor necessary to determine whether the judge
would have recused himself or herself if the matter had come to light earlier. There is no doubt that the standard
remains the same, whenever the issue of disqualification is raised
Binnie J.'s past status as Associate Deputy Minister is by itself insufficient to justify his disqualification. The same
can be said of his long-standing interest in matters involving First Nations. The source of concern, for the bands in
these motions to vacate the judgment, is Binnie J.'s involvement in this case, as opposed to his general duties as head
of litigation for the Department of Justice in the mid-1980s.
Binnie J.'s link to this litigation exceeded pro forma management of the files. On the other hand, it should be noted
that he was never counsel of record, and played no active role in the dispute after the claim was filed
To us, one significant factor stands out, and must inform the perspective of the reasonable person assessing the impact
of this involvement on Binnie J.'s impartiality in the appeals. That factor is the passage of time. Most arguments for
disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within
a short time prior to the decision-making
In the present instance, Binnie J.'s limited supervisory role in relation to this case dates back over 15 years. This
lengthy period is obviously significant in relation to Binnie J.'s statement that when the appeals were heard and
decided, he had no recollection of his involvement in this file from the 1980s
We are convinced that the reasonable person, viewing the matter realistically, would not come to the conclusion that
the limited administrative and supervisory role played by Binnie J. in this file, over 15 years ago, affected his ability,
even unconsciously, to remain impartial in these appeals
We thus conclude that no reasonable apprehension of bias is established and that Binnie J. was not disqualified in
these appeals
Judgment also briefly discusses the decision making process of the SCC – they all make decisions separately 
judges work on draft decisions and the others can add or subtract from the drafts or can write their own reasons  the
fact that the decision was unanimous should be taken into account to some extent
Independence
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Over the years the notion of independent decision making by tribunals and agencies has provided the fuel for
continuing controversy about the wisdom of Cabinet directives and appeals
Ministers of the Crown are not likely to be as blunt about their motives as Duplessis when he had Roncarelli’s liquor
license revoked
One interesting case is Sethi v Canada
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Sethi had made an application as a Convention refugee and the Minister disagreed  there was legislation
afoot to change the Board – to scrap it – and replace all of its members. Sethi made an application for
redetermination to the Board and claimed an apprehension of bias because the proposed changes would make
it more likely that Board members, in seeking to be reappointed to the Board would vote against him  to
curry favour with the Minister
The Court agreed with his point of view but on appeal he lost  court said that if every time the government
announced that it wanted to change something that it would create a reasonable apprehension of bias then the
whole system would grind to a halt and this could not be what was intended by anyone
Canadian Pacific Ltd. v Matsui Indian Band [1995] 1 SCR 3
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Amendments to the Indian Act enabled First Nations bands to pass their own by-laws for the levying of taxes against
real property on reserve lands. The appellant bands each developed taxation and assessment by-laws which were
implemented following the Minister's approval. The Matsqui Band's assessment by-law provided for the appointment
of Courts of Revision to hear appeals from the assessments, the appointment of an Assessment Review Committee to
hear appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law to the Federal
Court, Trial Division from the decisions of the Assessment Review Committee. The other bands provided for a single
hearing before a Board of Review, with an appeal to the Federal Court, Trial Division. All the by-laws provided that
members of the appeal tribunals could be paid, but did not mandate that they indeed be paid, and gave no tenure of
office so that members might not be appointed to sit on future assessment appeals. Members of the bands could be
appointed to the tribunals.
Lamer rejected the argument that there was a reasonable apprehension of bias in a structural sense because band
members serving on the appeal tribunals would have a financial stake in the outcome of the proceedings  said it was
too speculative of an argument
Although there is obviously a close relationship between independence and impartiality, they are nevertheless
separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation
to the issues and the parties in a particular case. . . . The word 'independent' in s. 11(d) reflects or embodies the
traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in
the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of
government, that rests on objective conditions or guarantees (Valente)
Thus, I am left with the allegation that a reasonable apprehension of bias exists because tribunal members may not be
paid, lack security of tenure, and are appointed by the Band Chiefs and Councils. It is here that I part company with
my colleague Sopinka J. In my opinion, the respondents' submissions concerning institutional independence raise
serious questions about the structure of the appeal tribunals established by the appellant bands.
In my view, principles of natural justice apply to the bands' tribunals as they would apply to any tribunal performing
similar functions. The fact that the tribunals have been constituted within the context of a federal policy promoting
Aboriginal self-government does not, in itself, dilute natural justice
o whatever appeal mechanisms are put in place they will have to adhere to the principles of natural justice,
since, as mentioned above, the appeal is in effect a subsequent hearing
I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal
which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it
should not be required to submit to the tribunal giving rise to this apprehension
However, I recognize that a strict application of these principles is not always warranted
Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence
must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of
institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the
nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office
In some cases, a high level of independence will be required
In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property
taxes. In my view, this is a case where a more flexible approach is clearly warranted
I would therefore apply this approach to the question of whether the members of the appellants' appeal tribunals are
sufficiently independent. The Valente principles must be considered in light of the nature of the appeal tribunals
themselves, the interests at stake, and other indices of independence, in order to determine whether a reasonable and
right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable
apprehension of bias on the basis that the members of the appeal tribunals are not independent
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On the subject of security of tenure, the Matsqui tribunals are to be appointed each year, although the terms of
appointment are to be left to the Chief and Band Council. One might presume that the members of the tribunals are
appointed for one-year terms; however, there is nothing in the Matsqui By-law protecting members from arbitrary
dismissal mid-term. The Siska By-law is silent on all aspects of the appointment of tribunal members
A further factor contributing to an apprehension of insufficient institutional independence arises when one considers
that the Chiefs and Band Councils select the members of their tribunals, in addition to controlling their remuneration
and tenure. This fact contributes to the appearance of a dependency relationship between the tribunal and the band,
particularly in the case at bar where the interests of the band are clearly at odds with the interests of the respondents.
In fact, both the Matsqui and Siska by-laws allow the bands themselves to be parties before their respective tribunals
(s. 49 (A) of the Matsqui By-law and s. 41(4) of the Siska By-law). The respondents are thus faced with presenting
their case before a tribunal whose members were appointed by the very Band Chiefs and Councils who oppose their
claim. This raises a problem similar to that addressed in MacBain
The appellants rely heavily on the fact that members of the appeal tribunals are required to take an oath of office that
they will be impartial. This is one factor to take into account in assessing the independence of an administrative
tribunal. However, the fact that an oath is taken cannot act as a substitute for financial security or security of tenure.
The Valente principles are flexible in their application to administrative tribunals, but they cannot be ignored.
Similarly, the fact that the interest at stake in the case, tax assessment, is of a lesser form than interests like the one
identified in Sethi, supra, (i.e., security of the person) is a consideration in applying the Valente principles. Again,
however, I am not prepared to discard the Valente principles on the basis that the property interests implicated in this
case are not as important as other interests.
In my view, even a flexible application of the Valente principles leads to the inevitable conclusion that a reasonable
and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable
apprehension that members of the appeal tribunals are not sufficiently independent. Three factors lead me to this
conclusion
o There is a complete absence of financial security for members of the tribunals
o Security of tenure is either completely absent (in the case of Siska), or ambiguous and therefore inadequate
(in the case of Matsqui);
o The tribunals, whose members are appointed by the Band Chiefs and Councils, are being asked to adjudicate a
dispute pitting the interests of the bands against outside interests (i.e., those of the respondents). Effectively,
the tribunal members must determine the interests of the very people, the bands, to whom they owe their
appointments
In reaching this conclusion, I wish to emphasize that it is these three factors in combination which lead me to the
conclusion that the appeal tribunals lack sufficient independence in this case. I am not saying that any one of these
factors, considered in isolation, would have led me to the same conclusion. For example, most of the provincial tax
assessment appeal tribunals are appointed by the provincial government, rather than by the municipalities.
Of course, Indian bands may be reluctant to cede the power to appoint tribunal members to the federal government,
given that one of the purposes of the new tax assessment regime is to facilitate the development of Aboriginal selfgovernment. Thus, to conform to the requirements of institutional independence, the appellant bands' by-laws will
have to guarantee remuneration and stipulate periods of tenure for tribunal members. The by-laws will also have to
ensure that members may only be dismissed during their tenure "with cause".
While I agree that the allegations concerning an absence of institutional impartiality are premature, I disagree that this
necessarily results in the allegations surrounding institutional independence being premature as well. The two
concepts are quite distinct. It is mere speculation to suggest that members of the tribunals will lack impartiality, since
we cannot possibly know in advance of an actual hearing what these members think. The mere fact that the structure
of the tribunals allows band members to sit on appeals tells us nothing (unless we assume that all band members are
biased, which is clearly not correct)
My colleague Sopinka J. does not dispute that institutional independence is a principle of natural justice which applies
to the band tribunals. He argues, however, that institutional independence should be assessed in the context of an
actual tribunal hearing, thereby taking the position that institutional independence could arise in the circumstances of
the appointment of the tribunal members, or in the manner in which the tribunals conduct their hearings
o With respect I cannot agree
o The function of institutional independence is to ensure that a tribunal is legally structured such that its
members are reasonably independent of those who appoint them. My colleague Sopinka J. appears to be of
the view that it is possible for the appellant bands to exercise their discretion under the by-laws with respect
to financial and tenure matters in such a way that the fundamental inadequacies of the by-laws will be cured.
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With respect, it is always possible for discretion to be exercised consistent with natural justice. The problem
is the discretion itself, since the point of the institutional independence doctrine is to ensure that tribunal
independence is not left to the discretion of those who appoint the tribunals. It is, in my opinion, inconsistent
to concede that institutional independence applies in this case, yet go on to conclude that the lack of
institutional independence in the by-laws may be addressed through the exercise of the discretionary powers
granted to the Band Chiefs and Councils under the by-laws. Institutional independence and the discretion to
provide for institutional independence (or not to so provide) are very different things. Independence premised
on discretion is illusory.
Sopinka – agreed with the Trial judge that the argument of institutional independence was premature because it lacked
sufficient basis for determination. He then went on to say that there were no grounds to interfere with the trial judge’s
determination of the issue as the matter was premature
In this appeal, a very significant contextual factor is that the band taxation scheme, under the Indian Act, R.S.C.,
1985, c. I-5, as amended, is part of a nascent attempt to foster Aboriginal self-government
I agree with the Chief Justice that the Valente, supra, principles are to be applied in the context of the test that applies
in determining impartiality, that is, whether a reasonable and right-minded person would have a reasonable
apprehension of bias. I also agree that the hypothetical reasonable, right-minded person must view the matter on the
basis of being provided with the relevant information
The difference between us in this regard is that, while the Chief Justice would limit the information to the procedure
set out in the by-laws, I would defer application of the test so that the reasonable person will have the benefit of
knowing how the tribunal operates in actual practice. That the principles of natural justice are flexible and must be
viewed in their contextual setting has become almost a trite observation
I do not disagree with the Chief Justice that the band taxation tribunals must comply with the principles of natural
justice, but without a clear understanding of the relevant, operational context, these principles cannot be applied.
Case law has thus tended to consider the institutional bias question after the tribunal has been appointed and/or
actually rendered judgment.
That institutional independence must be considered "objectively" does not preclude considering the operation of a
legislative scheme which creates an administrative tribunal, but only vaguely or partly sets out the three Valente
elements, as in this appeal, where the taxation by-laws in issue are silent with regard to details relating to tenure and
remuneration.
It is not safe to form final conclusions as to the workings of this institution on the wording of the by-laws alone.
Knowledge of the operational reality of these missing elements may very well provide a significantly richer context
for objective consideration of the institution and its relationships. Otherwise, the administrative law hypothetical
"right- minded person" is right-minded, but uninformed.
o Valente factors
 security of tenure, security of remuneration and administrative control.
2747-3174 Quebec Inc. v Quebec (Regie des Permis d’alcool) [1996] 3 SCR 919
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Security of Tenure
The respondent relied primarily on the term of office of the directors and the method of dismissal. They are appointed
by the government for a term of not more than five years (s. 4). Supplementary directors may also be appointed for as
long as the government determines. The orders of appointment adduced in evidence refer to terms of two, three and
five years. Once appointed, at least judging by the orders of appointment adduced in evidence, the directors can be
dismissed only for specific reasons. All the contracts contain the following clause, which is taken from the agreement
between the government and the chairman of the Régie:
In the case at bar, the orders of appointment provide expressly that the directors can be dismissed only for certain
specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful
dismissal. In these circumstances, I am of the view that the directors have sufficient security of tenure within the
meaning of Valente, since sanctions are available for any arbitrary interference by the executive during a director's
term of office
It was suggested that the large number of points of contact between the Régie and the Minister of Public Security was
problematic
In light of the evidence as a whole, I do not consider these various factors sufficient to raise a reasonable
apprehension with respect to the institutional independence of the Régie. It is not unusual for an administrative agency
to be subject to the general supervision of a member of the executive with respect to its management.
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It has not been shown how the Minister might influence the decision-making process. The chairman is responsible for
monitoring the Régie's day-to-day activities and its various employees, and for preparing the rolls. The fact that the
Minister of Public Security is ultimately responsible for both the Régie and the various police forces conducting
investigations would not in my view cause an informed person to have a reasonable apprehension with respect to the
independence of the directors
Bell Canada v Canadian Telephone Employees Association [2003] 1 SCR 884
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This appeal raises the issue of whether the Canadian Human Rights Tribunal (the "Tribunal") lacks independence and
impartiality because of the power of the Canadian Human Rights Commission (the "Commission") to issue guidelines
binding on the Tribunal concerning "a class of cases", and the power of the Tribunal Chairperson to extend Tribunal
members' terms in ongoing inquiries
In our view, Bell's arguments are without merit. Neither of the two powers challenged by Bell compromises the
procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or
constitutional principle. We would dismiss the appeal and have the complaints, finally, proceed before the Tribunal
Bell argues that the power of the Commission to issue guidelines binding on the Tribunal, under ss. 27(2) and 27(3),
compromises the Tribunal's independence because it places limits upon how the Tribunal can interpret the Act, and
undermines the Tribunal's impartiality because the Commission is itself a party before the Tribunal. Similarly, Bell
argues that the discretionary power of the Tribunal Chairperson to extend members' terms for ongoing inquiries, under
ss. 48.2(1) and 48.2(2), compromises the Tribunal's independence because it threatens their security of tenure, and
undermines the Tribunal's impartiality because the Chairperson may pressure such members to reach outcomes that he
or she favours
legal tests for independence and impartiality appeal to the perceptions of the reasonable, well-informed member of the
public. Both tests require us to ask: what would an informed person, viewing the matter realistically and practically,
and having thought the matter through, conclude?  Committee for Justice and Liberty
The requirements of independence and impartiality are not, however, identical
Bell challenges both the Tribunal's independence and its impartiality
Bell's claim that the guideline power undermines the Tribunal's independence is based upon the contention that it
threatens members' independence of thought. But the requirement of independence pertains to the structure of
tribunals, and to the relationship between their members and others, including members of other branches of
government, such as the executive.
The test does not have to do with independence of thought. A tribunal must certainly exercise independence of
thought, in the sense that it must not be unduly influenced by improper considerations. But this is just another way of
saying that it must be impartial.
Bell's only real objection to the guideline power, then, is that it leaves the Tribunal insufficiently impartial
the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and of the institutional
constraints it faces  Consolidated Bathurst
To say that tribunals span the divide between the executive and the judicial branches of government is not to imply
that there are only two types of tribunals -- those that are quasi-judicial and require the full panoply of procedural
protections, and those that are quasi-executive and require much less
In ascertaining the content of the requirements of procedural fairness that bind a particular tribunal, consideration
must be given to all of the functions of that tribunal
All aspects of the tribunal's structure, as laid out in its enabling statute, must be examined, and an attempt must be
made to determine precisely what combination of functions the legislature intended that tribunal to serve, and what
procedural protections are appropriate for a body that has these particular functions.
The main function of the Canadian Human Rights Tribunal is adjudicative
The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of
complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a
different body, the Commission.
The fact that the Tribunal functions in much the same way as a court suggests that it is appropriate for its members to
have a high degree of independence from the executive branch. A high degree of independence is also appropriate
given the interests that are affected by proceedings before the Tribunal -- such as the dignity interests of the
complainant, the interest of the public in eradicating discrimination, and the reputation of the party that is alleged to
have engaged in discriminatory practices.
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There is no indication in the Act that the legislature intended anything less than a high degree of independence of
Tribunal members.
o Members hold fixed terms and the Chair is only removable for cause
o These features of the statutory scheme suggest that the legislature intended the Tribunal to exhibit a high
degree of independence from the executive branch
The same test applies to the issue of impartiality as applies to independence
The Tribunal is part of a legislative scheme for identifying and remedying discrimination. As such, the larger purpose
behind its adjudication is to ensure that governmental policy on discrimination is implemented. It is crucial, for this
larger purpose, that any ambiguities in the Act be interpreted by the Tribunal in a manner that furthers, rather than
frustrates, the Act's objectives
As an administrative tribunal subject to the supervisory powers of s. 96 courts, the Tribunal does not have to replicate
all features of a court
Bell suggests, in the alternative, that the constitutional principle applies and holds the Tribunal to the [page900]
standard of common law procedural fairness. Since, as discussed below (at para. 53), the common law standard is
met, this submission does not advance Bell's argument
This discussion shows that the Tribunal, though not bound to the highest standard of independence by the unwritten
constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of
independence, both at common law and under s. 2(e) of the Canadian Bill of Rights
Bell alleges that the Commission's power to issue binding guidelines regarding the proper interpretation of the Act
undermines the Tribunal's impartiality. In Bell's words, this provision "usurps the power of the Tribunal to make its
own decisions concerning the interpretation and application of the Act". Moreover, Bell argues, it is problematic that
the Commission, the body that directs the Tribunal in its interpretation of the Act, also appears before the Tribunal as
a party
It is unclear exactly what objection Bell is making here. On one reading, Bell's objection lies simply with the fact that
the Tribunal is "fettered" -- that is, that it does not have full freedom to interpret the Act in whatever manner that it
wishes, unconstrained by any other body. On a second reading, the objection is rather that the fact that the
Commission has the power to issue binding guidelines may make the Tribunal more likely to favour the Commission
in the proceedings before it. On a third reading, the objection is simply to the fact that Parliament has placed in one
and the same body the functions of investigating complaints, formulating guidelines, and acting as prosecutor in
hearings before the Tribunal
While it may have been more felicitous for Parliament to have called the Commission's power a power to make
"regulations" rather than a power to make "guidelines", the legislative intent is clear. A functional and purposive
approach to the nature of these guidelines reveals that they are a form of law, akin to regulations. It is also worth
noting that the word used in the French version of the Act is ordonnance -- which leaves no doubt that the guidelines
are a form of law
The objection that the guideline power unduly fetters the Tribunal overlooks the fact that guidelines are a form of law.
It also mistakenly conflates impartiality with complete freedom to decide a case in any manner that one wishes. Being
fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints
or influences. Rather, it consists in being influenced only by relevant considerations, such as the evidence before the
Tribunal and the applicable laws.
Hence, the fact that the Tribunal must apply all relevant law, including guidelines formulated by the Commission,
does not on its own raise a reasonable apprehension of bias.
The second version of Bell's objection is that the Tribunal is more likely to favour the Commission during a hearing
because the Commission has the power to issue guidelines that bind it. It is not evident to us why this would be so.
When the Commission appears before the Tribunal, it is in no different a position from any representative of the
government who appears before an administrative board or court
The Tribunal seems no more likely to be biased in favour of the Commission because the Commission provides the
Tribunal's guidelines than it is likely to be biased in favour of Bell because Bell provides the Tribunal's phone service
On a third interpretation, Bell objects that Parliament has placed in one and the same body the function of formulating
guidelines, investigating complaints, and acting as prosecutor before the Tribunal. Bell is correct in suggesting that
the Commission shares these functions. However, this overlapping of different functions in a single administrative
agency is not unusual, and does not on its own give rise to a reasonable apprehension of bias
Indeed, it may be that the overlapping of functions in the Commission is the legislature's way of ensuring that both the
Commission and the Tribunal are able to perform their intended roles.
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Bell's real objection may be that placing the guideline power and the prosecutorial function in a single agency allows
the Commission to manipulate the outcome of a hearing in its favour
This version of Bell's objection might have been stronger had Bell provided some evidence that, in practice, the
Commission had attempted to use the guidelines to influence the Tribunal's views toward it (see Katz v. Vancouver
Stock Exchange, [1996] 3 S.C.R. 405, and Matsqui Indian Band, supra, at paras. 117-24, per Sopinka J.). No such
evidence was provided in this case. Indeed, since the only guidelines that apply to the complaints brought against Bell
are the Equal Wages Guidelines, 1986, which were introduced several years before the complaints against Bell were
brought, it is difficult to see how these guidelines could have been [page906] formulated with the aim of unduly
influencing the Tribunal against Bell
In suggesting that the Commission could misuse its guideline power in this way, and that the misuse could remain
undetected, Bell seems to be overestimating the breadth of the guideline power. Indeed, counsel for Bell suggested in
oral argument that the guideline power would permit the Commission effectively to repeal provisions of the Act.
Counsel also argued that the guideline power might be used to strip away any procedural protections guaranteed in the
Act, and that the Tribunal has no power to "escape the fetters of any guidelines imposed on it by declaring them ultra
vires the Commission".
As the Commission has readily acknowledged, the guideline power is constrained. The Commission, like other bodies
to whom the power to make subordinate legislation has been delegated, cannot exceed the power that has been given
to it and is subject to strict judicial review: R. v. Greenbaum, [1993] 1 S.C.R. 674. The Tribunal can, and indeed must,
refuse to apply guidelines that it finds to be ultra vires the Commission as contrary to the Commission's enabling
legislation, the Act, the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The Tribunal's
power to "decide all questions of law or fact necessary to determining the matter" under s. 50(2) of the Act is clearly a
general power to consider questions of law, including questions pertaining to the Charter and the Canadian Bill of
Rights
In addition to these factors, there are specific indications in the Act that the legislature intended the scope of the
guideline power to be limited
Parliament's choice was obviously that the Commission should exercise a delegated legislative function. Like all
powers to make subordinate legislation, the Commission's guideline power under ss. 27(2) and 27(3) is strictly
constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the
matter realistically and practically and having thought the matter through, to apprehend a "real likelihood of bias":
Bell challenges the Chairperson's power to extend appointments of Tribunal members in ongoing inquiries. Bell
argues that this power robs members of the Tribunal of sufficient security of tenure. In addition, Bell contends that it
threatens members' impartiality
There is an obvious need for flexibility in allowing members of the Tribunal to continue beyond the expiry of their
tenure, in light of the potential length of hearings and the difficulty of enlisting a new member of a panel in the middle
of a lengthy hearing. It would not, for this reason, be practicable to suggest that members simply retire from a panel
upon the expiry of their appointment, with no official having the power to extend their appointments.
If the discretionary power of the Chief Justice and Judicial Council of the provincial courts to extend the tenure of
judges does not compromise their independence in a manner that contravenes the requirements of judicial
independence, then neither does the discretionary power of the Tribunal Chairperson compromise the independence of
Tribunal members in a manner that contravenes common law procedural fairness.
However, given that members whose appointments have expired will not sit on another panel again, it is difficult to
see what power the Chairperson could ultimately have over them, once their appointments have been [page910]
extended and it is time for them to decide the case. Moreover, there are ample provisions in the Act to suggest that the
Tribunal Chairperson can reasonably be regarded as disinterested in the outcome of cases. The Chairperson must have
been a member in good standing in the bar of a province for at least ten years (s. 48.1(3)). He or she can be removed
from the position for cause (s. 48.2(1)) by the Governor in Council. A reasonable person informed of these facts
would not conclude that members were likely to be illegitimately pressured to adopt the Chairperson's views
Imperial Oil Ltd. v. Quebec (Minister of the Environment) [2003] 2 SCR 624
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Quebec's Minister of the Environment (the "Minister") ordered Imperial to prepare at its own expense a site
characterization study which would also include appropriate decontamination measures and submit it to the Ministère.
Imperial challenged that order before the Administrative Tribunal of Québec ("ATQ"), without success. The Superior
Court allowed Imperial's application for judicial review because the Tribunal had committed what were, in the Court's
opinion, unreasonable errors in interpreting the relevant legislation. In addition, the Court held that a situation of
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conflict of interest in which the Minister found himself at the time the order was issued would have invalidated the
order in any event
The Quebec Court of Appeal set that judgment aside. In the opinion of that Court, the nature of the duties imposed on
the Minister created a state of necessity which justified a situation that would otherwise have breached the principle of
impartial administrative decision-making
SCC dismissed the appeal
Minister had issued an order  to do a characterization study but Imperial declined
Imperial declined to do the characterization study. It exercised the right of appeal provided for by s. 96 EQA. It asked
the Tribunal to quash the Minister's order. After the dismissal of its appeal by the Tribunal, it initiated the judicial
review proceedings which are now the subject of the appeal to this Court. In order to precisely identify the legal issue
[page632] on which the outcome of this appeal turns, we must carefully examine the judicial history of this case and
the reasons stated first by the Administrative Tribunal and then by the Superior Court and the Court of Appeal
Imperial's argument before the Administrative Tribunal was, first, that there had been a violation of the rules of
procedural fairness that applied to the Minister's decision because the Minister was in a conflict of interest
Its second argument was that the facts of the case did not support a characterization order
The decision of the Administrative Tribunal rejected all of the appellant's arguments. The Tribunal found, first, that
the complaints regarding the violation of the rules of procedural equity were without merit
Moreover, in the Tribunal's opinion, the legislation created overlapping functions that were an exception to the rule of
impartiality. The overlap reflects the exigencies of the enforcement of environmental legislation. The order, which
was limited to the characterization study, was also not an unreasonable exercise of the Minister's powers
At Superior Court Pelletier J. allowed the application for judicial review and set aside the Tribunal's decision and the
Minister's order. His judgment held, first, that the Tribunal had adopted an unreasonable interpretation of s. 31.42
EQA when it concluded that the characterization order imposed only reasonable costs on Imperial
At Court of Appeal - although the Minister was exercising a discretionary administrative power, he was nonetheless
bound to act impartially. She conceded that there was an appearance of bias, because of the Minister's financial
interest. However, to avoid quashing the impugned decision, she then relied upon the concept of necessity: the
Minister alone may perform the functions and exercise the powers provided for by the Act to ensure that the
obligations that the legislation imposes on the polluter are met, in order to protect the environment in Quebec. The
acknowledgement of a state of necessity justified an exception to the principle of impartiality applied to
administrative decision-makers. The Minister's alleged inability to act resulted from the duties imposed on him by
law, and not from his voluntary act.
The sole issue now at stake in this appeal is the question of procedural fairness or natural justice in relation to the
Minister's decision. It remains, though, an important issue. The appellant submits that there was bias, or at the least an
appearance of bias, that completely vitiated the decision to issue a characterization order. That argument is based on
the premise that the Minister was bound by a duty of impartiality that he could not fulfil because of the existence of a
conflict of interest
The legislature has delegated substantial and diverse functions and powers to the Minister for such purposes
The power to make orders that is in issue in this appeal belongs to a class of powers delegated to the Minister which
allow him to take action whenever contaminants are found in the environment
As discretionary and broad as the power to make orders appears to be, nonetheless important procedural requirements
circumscribe it. We must now examine them
Those procedural rules provide more guidance about certain aspects of the general duty of procedural fairness that s. 2
of the Act respecting Administrative Justice imposes on administrative decision-makers, by codifying a consistent line
of decisions in Canadian administrative law
First, s. 31.44 EQA requires that the Minister give 15 days' prior notice of his intention to issue an order. Such a notice
shall state, inter alia, that the person to whom it is directed may present observations within the time specified, and
shall describe the reasons for the proposed decision.
The record confirms that the necessary notices were given. The appellant had an opportunity to present its
observations, which the Minister reviewed before issuing a decision, for which reasons were given. The procedural
framework established by the Act was therefore followed. As we have seen, the debate then focused on another issue
which is also a component of the principles of natural justice: the nature and scope of the duty of impartiality that
applies to the decision-maker, the Minister.
The duty of impartiality ranks among the fundamental obligations of the courts
The concept of impartiality refers to the decision-maker's state of mind
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The decision-maker must approach the issue submitted to him or her with an open mind, [page645] not influenced by
personal interests or outside pressure. It is not sufficient that the decision-maker be impartial in his or her own mind,
internally, to the satisfaction of his or her own conscience. It is also necessary that the decision-maker appear
impartial in the objective view of a reasonable and well-informed observer
The principles of natural justice do undeniably govern the actions of administrative decision-makers
The appellant's reasoning thus treats the Minister, for all intents and purposes, like a member of the judiciary, whose
personal interest in a case would make him apparently biased in the eyes of an objective and properly informed third
party. This line of argument overlooks the contextual nature of the content of the duty of impartiality which, like that
of all of the rules of procedural fairness, may vary in order to reflect the context of a decision-maker's activities and
the nature of its functions
These variations in the actual content of the principles of natural justice acknowledge the great diversity in the
situations of administrative decision-makers and in the roles they play, as intended by legislatures
extent of the duties imposed on the administrative decision-maker will then depend on the nature of the functions to
be performed and on the legislature's intention. In each case, the entire body of legislation that defines the functions of
an administrative decision-maker, and the framework within which his or her activities are carried on, will have to be
carefully examined.
The determination of the actual content of the duties of procedural fairness that apply requires such an analysis
When the Minister has to make a specific decision concerning someone subject to the law, he must comply with
precise procedural obligations, which were described earlier. Generally speaking, those obligations require that he
give notice to the person concerned, receive and review the representations and information submitted by that person
and give reasons to that person for his decision. The effect of this procedural framework is that the Minister must
carefully and attentively examine the observations submitted to him. However, that obligation is not equivalent to the
impartiality that is required of a judge or an administrative decision-maker whose primary function is adjudication. In
performing his functions, the Minister is involved in the management of an environmental protection system. He must
make decisions in a context in which the need for the long-term management of environmental problems plays a
prominent role, and in which he must ensure that the fundamental legislative policy on which the interpretation and
application of environment quality legislation are based is implemented.
The Minister has the responsibility of protecting the public interest in the environment, and must make his decisions
in consideration of that interest.
In this case, as was discussed above, the Minister used a discretionary political power for the purposes of the
application of s. 31.42 EQA. A contamination problem had to be dealt with, and he had to choose the solution that he
considered to be the most appropriate. That choice fell within the discretion assigned to him by the Act
The Minister was not performing an adjudicative function in which he was acting as a sort of judge.
The Minister was performing a mainly political role which involved his authority, and his duty, to choose the best
course of action, from the standpoint of the public interest, in order to achieve the objectives of the environmental
protection legislation
The only interests the Minister was representing were the public interest in protecting the environment and the interest
of the State, which is responsible for preserving the environment. In the circumstances of this case, it would be
difficult to separate those interests. In exercising his discretion, the Minister could properly consider a solution that
might save some public money
There was no conflict of interest such as would warrant judicial intervention, let alone any abuse or misuse of power
CUPE v Ministry of Labour [2003] 1 SCR 539
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The unions say the Minister could not, as a member of a cost-cutting government, make the appointments impartially.
He was therefore disqualified and ought to have delegated the appointments to senior officials
The Minister says that he is not responsible for health costs or hospital administration. He is, however, a member of
Cabinet and committed to government policy which, in 1997, included public sector "rationalization" and pay
restraint. He was elected on a platform called "the Common Sense Revolution" and people would reasonably think he
was committed to carrying it out
The legal answer to this branch of the unions' argument, however, is that the legislature specifically conferred the
power of appointment on the Minister. Absent a constitutional challenge, a statutory regime expressed in clear and
unequivocal language on this specific point prevails over common law principles of natural justice
the legislature's choice of the Minister as the proper authority to exercise the power of appointment is clear and
unequivocal.
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The unions contend that the Minister could have avoided the appearance of a conflict of interest. Over the years, the
direct involvement of Ministers in s. 6(5) appointments was somewhat diminished by delegation of the selection of
the third arbitrator to a senior public servant, whose recommendation was then, in most cases, accepted by the
Minister. An express power of delegation is found in s. 9.2(1), but it is expressed as permissive, not mandatory. The
practice of delegation, where followed, may have had as much to do with departmental efficiency as with sensitivity
over the Minister's direct involvement. It was not a requirement
For the court to require the Minister to delegate the choice to an official in his Ministry in the face of the text of s. 6(5)
would amount, I think, to a judicial amendment of the legislation.
I therefore conclude that the Minister's perceived interest in the outcome of s. 6(5) arbitrations does not bar him from
exercising a statutory power of appointment conferred on him in clear and unequivocal language
Part III: Substantive Review
The Modern Standard of Review – The Pragmatic and Functional Approach
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What is the standard of review that the courts should apply in reviewing the decisions of administrative bodies
For the longest time the theory and practice of judicial review in this domain wee determined by the concept of
“jurisdiction”
o Statutory authorities were limited solely to the authority or jurisdiction conferred on them by their enabling
legislation  where they stepped outside these bounds they were operating in excess of their jurisdiction
o Courts interpreted all matters relative to jurisdiction on the correctness standard
 It was either right or it was wrong
The manner in which the courts have treated privative clauses has often provoked intense debate  both within and
outside of the courts
o Where the legislature has indicated that the decisions of the administrative body are not to be challenged to
any other body that creates a strong presumption against allowing for judicial oversight
o See many privative clauses in employment statutes  why
 To avoid potential delays which would arise if disputes went to the courts all the time
 To avoid the costs of disputes going to court all the time
 Some of these administrative bodies are created to keep disputes out of the courts  to allow them to
go to the courts would defeat this purpose
 They are specialists with a better understanding of that area of law
o Courts viewed their role somewhat as determining whether the administrative agency had the authority to
consider the question that was before it  if it did not have the authority to consider the question then its
answer to the question could be of no import
By far the most important function of jurisdiction in administrative law is to define the scope of judicial review when
the legislature has apparently precluded all access to the courts
o However this is not the only context in which it may be relevant to know if an agency has exceeded its
jurisdiction or merely made a mistake in the way that is exercised its powers
 A jurisdictional error can always be proved by extrinsic evidence
 A tribunal can only be prohibited from proceeding in a matter before it has rendered its decision if the
error relied on by the party seeking relief is one that would deprive the agency of its jurisdiction
 At common law an agency can participate as a party in judicial review proceedings brought to
challenge its decision, but only to the extent that the agency’s jurisdiction is being impugned,
however a breach of the duty of procedural fairness does not count for this purpose
The Preliminary Question Doctrine
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At one time courts allocated decision making power between reviewing courts and administrative agencies that were
protected by a privative clause by distinguishing between those questions of law that were within the decision making
authority – jurisdiction – of the agency and those that were either preliminary to the exercise of the agency’s
jurisdiction, or collateral to the merits of its decision
Under this theory courts were entitled to intervene in the process if it found that some condition precedent to the
agency’s exercise of its jurisdiction was not satisfied  the agency’s determination of preliminary questions were
subject to independent review by the courts on the basis of their correctness
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Those questions of law falling within the agency’s jurisdiction, on the other hand, were immune on the basis
of the preclusive clause
This theory was impractical because there was no solid test for identifying which questions were preliminary
o Also the idea of preliminary questions distracted from the substantive issues
o Also courts could use the uncertainty to set aside decisions they disliked on the basis of the preliminary
question doctrine
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The preliminary question doctrine is not entirely abandoned – Bibeault – SCC said that the jurisdiction of
administrative agencies is limited and that it is the function of the courts to ensure that agencies do not exceed their
jurisdictions  courts must determine whether the agency correctly interpreted any provisions in their enabling
legislation that confers and/or limits jurisdiction on the agency
Anisminic  UK case that abandoned the preliminary question doctrine. House of Lords held that the decision of the
agency could be set aside if the agency had asked itself the “wrong question”, taken into consideration irrelevant
factors, or ignored factors that it was legally required to consider
Establishing the Modern Standard
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Commission [1979] 2 SCR 227
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On August 22, 1977, during the course of a lawful strike, the Canadian Union of Public Employees, Local 963, laid a
complaint with the Public Service Labour Relations Board of New Brunswick, pursuant to the Public Service Labour
Relations Act, R.S.N.B. 1973, c. P-25, s. 19. The Union complained that the New Brunswick Liquor Corporation, the
employer of their members, was replacing striking employees with management personnel contrary to s. 102(3)(a) of
the Act.
The Liquor Corporation denied the complaint and countered with a complaint against the Union, alleging picketing in
violation of s. 102(3)(b) of the Act.
The two complaints were heard at the same time. The Board found the employer's complaint to be well-founded, and
an appropriate order was made requiring the Union to cease and desist its then current picketing practices. The
employer's complaint against the Union is, therefore, no longer of concern. The Union complaint against the employer
is another matter. It has given rise to some considerable difficulty and is the subject of the appeal now before the
Court.
On one point there can be little doubt-section 102(3)(a) is very badly drafted
The major argument of the employer before the Board was that to which I have alluded, quite simply that the phrase
"with any other employee" in s. 102(3)(a) covered both earlier branches of that paragraph, i.e. "replace the striking
employees" or "fill their position". The only intent of the section, on this view, was to ensure that the jobs remained
open for the employees after the strike was over.
This interpretation was rejected by the Board. It was the opinion of the Board that when the Legislature saw fit to
grant the right to strike to public employees, it intended through the enactment of s. 102(3) to restrict the possibility of
picket-line violence by prohibiting strikebreaking, on the one hand, and picketing, on the other. This apparent
intention, the Board held, would be frustrated if the words "with any other employee" were to be interpreted as
modifying "replace" as well as "fill their position", "for in that case there would be nothing to stop the Employer from
replacing the strikers with anyone not coming within the definition of 'employee' in the Public Service Labour
Relations Act ... . The result of such an interpretation would be that the strikers would have been deprived of their
right to picket, but the employer would not have been deprived of the right to employ strike-breakers
The Board ordered the employer to refrain from the use of management personnel do do work normally done by the
members of the bargaining unit in any of the employer's places of business.
Before entering upon a discussion of the conflicting interpretations of s. 102(3)(a) found in the judgments in the Court
of Appeal, there is the critical characterization of the interpretation of s. 102(3) as a "preliminary or collateral matter"
by that court
o The Board is empowered to inquire into a complaint that the employer has failed to observe a prohibition in
the Act and not to determine what is prohibited by the Act or to interpret it except as necessary to determine
its jurisdiction
With respect, I do not think that the language of "preliminary or collateral matter" assists in the inquiry into the
Board's jurisdiction. One can, I suppose, in most circumstances subdivide the matter before an administrative tribunal
into a series of tasks or questions and, without too much difficulty, characterize one of those questions as a
"preliminary or collateral matter". As Wade suggests in his Administrative Law (4th ed., 1977) at p. 245, questions of
fact will naturally be regarded as "the primary and central questions for decision", whereas the "prescribed statutory
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ingredients will be more readily found to be collateral". This is precisely what has occurred in this case, the existence
of the prohibition described in the statute becoming the "collateral matter", and the facts possibly constituting breach
of the prohibition, however interpreted, the "primary matter for enquiry". Underlying this sort of language is,
however, another and, in my opinion, a preferable approach to jurisdictional problems, namely, that jurisdiction is
typically to be determined at the outset of the inquiry
The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should
not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so
The parties before the Board, a separate employer identified in the Act, and a bargaining agent duly certified under the
Act, were certainly those entitled to initiate the inquiry according to s. 19(1), and to be parties to that inquiry. The
general subject-matter of the dispute between the parties unquestionably fell within the confines of the Act, that is, the
situation of a strike by employees which is considered lawful by the very provisions of the Act
The Board was asked by the parties to determine whether certain activities of the Union and of the employer during
that lawful strike were in violation of a prohibition in the Act, i.e. s. 102(3). The Union took no jurisdictional
objection to the ban on picketing contrary to s. 102(3)(b), nor did the employer
On this view of the matters before the Board, it is difficult to conceive how the existence of the prohibition, can be a
question "preliminary" to the Board's jurisdiction, in the sense of determining the scope of the Board's capacity to hear
and decide the issues before them
At this stage, it is important to have in mind the privative clause found in s. 101 of the Act, which protects the
decisions of the Board made within jurisdiction
Section 101 constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be
promptly and finally decided by the Board. Privative clauses of this type are typically found in labour relations
legislation. The rationale for protection of a labour board's decisions within jurisdiction is straightforward and
compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour
relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of
law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective
bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in
the area
The usual reasons for judicial restraint upon review of labour board decisions are only reinforced in a case such as the
one at bar.
o Not only has the Legislature confided certain decisions to an administrative board, but to a separate and
distinct Public Service Labour Relations Board.
o That Board is given broad powers-broader than those typically vested in a labour board-to supervise and
administer the novel system of collective bargaining created by the Public Service Labour Relations Act.
o The Act calls for a delicate balance between the need to maintain public services, and the need to maintain
collective bargaining.
o Considerable sensitivity and unique expertise on the part of Board members is all the more required if the
twin purposes of the legislation are to be met.
o Nowhere is the application of those skills more evident than in the supervision of a lawful strike by public
service employees under the Act
The interpretation of s. 102(3) would seem to lie logically at the heart of the specialized jurisdiction confided to the
Board. In that case, not only would the Board not be required to be "correct" in its interpretation, but one would think
that the Board was entitled to err and any such error would be protected from review by the privative clause in s. 101
Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not
remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be
rationally supported by the relevant legislation and demands intervention by the court upon review?
o I do not see how one can properly so characterize the interpretation of the Board. The ambiguity of s.
102(3)(a) is acknowledged and undoubted. There is no one interpretation which can be said to be "right".
Clearly s. 102(3) is an attempt to maintain the balance of power with a quid pro quo. Its intent, no doubt, is to avoid
picket lines outside government buildings, for two reasons: as the Board indicates, to avoid picket line violence, but
also to avoid the impact of picket lines for one bargaining group upon the remainder of government operations in a
given building
o There may be different government agencies  in one building and not all on strike at one time
o In the private sector the picket line is much more disruptive
o Hence, the enactment of s. 102(3).
70
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On the one hand, the striking employees are barred from picketing "in or near any place of business
of the employer."
 On the other hand, the employer is barred either from "replacing" the striking employees, or from
"filling their positions with any other employee."
 Both branches are purely temporary in nature, i.e. "during the continuance of the strike."
 The latter branch of the clause can be seen as cutting two ways: for the benefit of the striking
employees, it bars the employer from temporarily filling the positions of the striking employees, and
at the same time protects the "employees" in other bargaining units, who are still at work in the same
government department or some other government department, from being required to fill the
positions of their striking fellow employees during the period of the strike.
 The first branch ensures similar protection to the striking employees in a more general manner, in that
they cannot be "replaced" by any person and not simply "with any other employee."
If one were to read "with any other employee" as applicable to "replace", then there is the obvious problem that any
individual not an employee under the Act in s. 1 could work in maintaining the employer's operation
o The result would be that the striking employees would be deprived of their right to picket, while the employer
could maintain a high level of services, in the absence of the picket line, with suppliers and customers coming
and going at will and the work being performed by anyone other than "employees" under the Act. The right to
strike would be sterilized and the supposed choice of settlement techniques, spelled out in ss. 70 to 75, would
become illusory
One important factor in these types of cases is their emphasis on statutory context and legislative purpose rather than
common law concepts or presumptions as the key to interpreting the administrative statutes in question
o But there are also two important and related differences that they illustrate
 The extent to which the courts are willing to regard the meaning of statutory language as ambiguous
 The determination of where the responsibility for interpreting an administrative statute lies
 With the administrative agency (the “specialist”) or with the court
The principal doctrinal importance of CUPE is that it shifted the focus of jurisdictional review by directing attention
to the rationality of the agency’s interpretation of its enabling stattue rather than to an a priori classification of the
statutory provision in dispute
Regardless, CUPE did not settle all of the issues surrounding the appropriate standard of review. The case law that
followed can be stated in the form of three propositions
o Despite the presence of strong privative clauses an agency’s decision may be set aside as in excess of its
jurisdiction it if is based on an incorrect interpretation of the general law or of a provision in its enabling
statute which on a pragmatic and functional analysis the legislature should be held not to have left to the
conclusive determination of the agency
o An agency exceeds its jurisdiction by placing a patently unreasonable interpretation on those provisions of its
enabling statute which on a pragmatic and functional approach to the statutory scheme the legislature should
be regarded as having entrusted conclusively to the agency to interpret
o Privative clauses that fall short of outright prohibitions of judicial review do not provide as much protection
from judicial review but they are to be taken into account as part of the overall statutory context when a
reviewing court is determining whether and to what extent it should defer to the agency’s interpretation of the
legislation
Jurisdictional Provisions: The Correctness Standard
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The first important case in which the SCC made it quite clear that it did not understand CUPE to have mandated a
policy of curial deference to agencies’ interpretation of every aspect of their enabling statute was Syndicat des
employes de production du Quebec et de l’Acadie v. Canada Labour Relations Board (1984)
o Board’s decision was challenged on the grounds that its award was not authorized by the Canada Labour
Code
o “it is not doubtful but manifest that the interpretation of these provisions raises a question of jurisdiction
about which the Board cannot err without committing an excess of jurisdiction”  “Accordingly it does not
matter whether or not the jurisdictional error made by the Board is patently unreasonable”
71
Union des employes de service, Local 298 v. Bibeault [1988] 2 SCR 1048
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The issue was whether the Quebec Labour Commissioner and the Labour Court had acted in excess of jurisdiction by
holding that the successor employer provisions applied to a company that had successfully tendered for a contract to
provide janitorial services for schools run by a school board which had been unionized  the board had terminated its
contract with a company whose workers were on strike  another union had attempted to file for certification of the
employees  question was whether the provisions in the Quebec Labour Code applied where there had been no
consensual transaction between the two companies  the other union (one who had tried to certify the employees)
also challenged the arrangement (Bibeault was the Commissioner)
Did the labour commissioner and the Labour Court, in deciding whether there was a transfer of rights and obligations
under s. 45 when the C.S.R.O. awarded a contract for janitorial services, perform an act which was within their
jurisdiction stricto sensu? That is the first point this Court must decide. In other words, if the decisions of the labour
commissioner and the Labour Court are in error, are they subject to judicial review by the superior courts?
the parties considered the jurisdiction of the labour commissioner in two lights: first, does one of the events
mentioned in s. 45, namely the alienation of an undertaking or its operation by another, constitute a preliminary
question or, in other words, a prerequisite to the exercise of the power conferred by s. 46? And secondly, is the
interpretation given to s. 45 by the labour commissioner and the Labour Court patently unreasonable?
S.A. de Smith (Judicial Review of Administrative Action (4th ed. 1980), at p. 114) defines a preliminary question as
follows: "A preliminary or collateral question is said to be one that is collateral to the merits' or to the very essence of
the inquiry'; it is not the main question which the tribunal has to decide'" (footnote references omitted). In so far as the
determination of whether the prerequisite has been met (the preliminary or collateral question) is not the main
question which the tribunal has to decide, it is not within its jurisdiction stricto sensu.
Any error in the matter amounts to a refusal to exercise its jurisdiction stricto sensu or an excess of jurisdiction stricto
sensu by the Court, and makes its decision illegal and void
the difficulty presented by the concept of the preliminary or collateral question is the absence of any coherent test for
distinguishing what is in fact preliminary
In short, Dickson J. concluded, an error is patently unreasonable when "its construction cannot be rationally supported
by the relevant legislation" and "demands intervention by the court upon review". As the interpretation adopted by the
Board in that case was not of this nature, it was not subject to judicial review (From CUPE)
It should however be carefully borne in mind that New Brunswick Liquor Corp., supra, does not mean that only a
patently unreasonable error can lead to an excess of jurisdiction. In Syndicat des employés de production du Québec
et de l'Acadie, supra, at pp. 420-21, this Court had occasion to consider the nature of the errors which result in an
excess of jurisdiction:
o A mere error of law is an error committed by an administrative tribunal in good faith in interpreting or
applying a provision of its enabling Act, of another Act, or of an agreement or other document which it has to
interpret and apply within the limits of its jurisdiction
o A mere error of law is to be distinguished from one resulting from a patently unreasonable interpretation of a
provision which an administrative tribunal is required to apply within the limits of its jurisdiction
o A mere error of law should also be distinguished from a jurisdictional error. This relates generally to a
provision which confers jurisdiction, that is, one which describes, lists and limits the powers of an
administrative tribunal, or which is [TRANSLATION] "intended to [page1086] circumscribe the authority" of
that tribunal
o A jurisdictional error results generally in an excess of jurisdiction or a refusal to exercise jurisdiction, whether
at the start of the hearing, during it, in the findings or in the order disposing of the matter. Such an error, even
if committed in the best possible good faith, will result nonetheless in the decision containing it being set
aside
In its decision a tribunal may have to decide various questions of law. Certain of these questions fall within the
jurisdiction conferred on the tribunal; other questions however may concern the limits of its jurisdiction
It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will
exceed its jurisdiction because of error:
o 1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs
in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so
doing without being subject to judicial review
o 2. if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error
will cause it to lose jurisdiction and subject the tribunal to judicial review
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The idea of the preliminary or collateral question is based on the principle that the jurisdiction conferred on
administrative tribunals and other bodies created by statute is limited, and that such a tribunal cannot by a
misinterpretation of an enactment assume a power not given to it by the legislator.
The principle itself presents no difficulty, but its application is another matter.
It is not always true that each of these conditions limits the tribunal's authority; but except where the legislator is
explicit, how can one distinguish a condition which the legislator intended to leave to the exclusive determination of
the administrative tribunal from a condition which limits its authority and as to which it may not err? One can make
the distinction only by means of a more or less formalistic categorization.
The concept of the preliminary or collateral question diverts the courts from the real problem of judicial review: it
substitutes the question "Is this a preliminary or collateral question to the exercise of the tribunal's power?" for the
only question which should be asked, "Did the legislator intend the question to be within the jurisdiction conferred on
the tribunal?"
courts, including this Court, have often remarked on the difficulty of the task. I doubt whether it is possible to state a
simple and precise rule for identifying a question of jurisdiction, given the fluidity of the concept of jurisdiction and
the many ways in which jurisdiction is conferred on administrative tribunals
However, by limiting the concept of the preliminary or collateral question and by introducing the doctrine of the
patently unreasonable interpretation, this Court has signalled the development of a new approach to determining
jurisdictional questions
The formalistic analysis of the preliminary or collateral question theory is giving way to a pragmatic and functional
analysis, hitherto associated with the concept of the patently unreasonable error
At first sight it may appear that the functional analysis applied to cases of patently unreasonable error is not suitable
for cases in which an error is alleged in respect of a legislative provision limiting a tribunal's jurisdiction.
The difference between these two types of error is clear: only a patently unreasonable error results in an excess of
jurisdiction when the question at issue is within the tribunal's jurisdiction, whereas in the case of a legislative
provision limiting the tribunal's jurisdiction, a simple error will result in a loss of jurisdiction. It is nevertheless true
that the first step in the analysis necessary in the concept of a "patently unreasonable" error involves determining the
jurisdiction of the administrative tribunal.
At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the
interpretation of a provision limiting the administrative tribunal's jurisdiction
o in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as
in a case where simple error is alleged regarding a [page1089] provision limiting that jurisdiction, the first
step involves determining the tribunal's jurisdiction
This development seems to me to offer three advantages. First, it focuses the Court's inquiry directly on the intent of
the legislator rather than on interpretation of an isolated provision. Determining the legislator's intent is especially
desirable when the Court has to intervene in the decisions of administrative tribunals such as the labour commissioner
or Labour Court
Second, a pragmatic or functional analysis is better suited to the concept of jurisdiction and the consequences that
flow from a grant of powers.
o Jurisdiction means authority to decide. Whenever a judicial tribunal is empowered or required to inquire into
a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached
[page1090] collaterally or on an application for certiorari but are binding until reversed on appeal (deSmith)
Under the preliminary or collateral question theory, the mere fact that an administrative tribunal must answer a
preliminary or collateral question before it may exercise its powers suffices to transform the question into a
jurisdictional question. Thus, the order in which the tribunal deals with the questions presented to it may determine
the nature of those questions. Such a theory tends to empty the concept of jurisdiction of its content. Jurisdiction
stricto sensu is defined as the power to decide.
The true problem of judicial review is to discover whether the legislator intended the tribunal's decision on these
matters to be binding on the parties to the dispute, subject to the right of appeal if any
The third and perhaps the most important of the reasons why a pragmatic or functional analysis seems more
advantageous is that it puts renewed emphasis on the superintending and reforming function of the superior courts.
o When an administrative tribunal exceeds its jurisdiction, the illegality of its act is as serious as if it had acted
in bad faith or ignored the rules of natural justice. The role of the superior courts in maintaining the rule of
law is so important that it is given constitutional protection: Crevier v. Attorney General of Quebec, [1981] 2
73
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S.C.R. 220. Yet, the importance of judicial review implies that it should not be exercised unnecessarily, lest
this extraordinary remedy lose its meaning
The judgment in Bibeault is notable for introducing “pragmatic and functional” into the vocabulary
o It is now seen frequently
o Was originally used to describe the approach that should be used in determining which provisions limited or
conferred jurisdiction and so had to be interpreted correctly by the agency and which were within the
agency’s jurisdiction to interpret subject only to the standard of patent unreasonableness
o Since then ti has been employed more broadly to determine either the correct meaning of legislation or
whether the agency’s interpretation was patently unreasonable
Rearticulating the Modern Standard
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While the pragmatic and functional approach from Bibeault remains the foundational set of criteria for determining
whether the court owes some degree of deference Pushpanathan is the most authoritative rearticulation of the
underpinnings of both CUPE and Bibeault and is now also a standard citation in review cases
Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982
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In 1985 the appellant claimed refugee status and was granted PR status in Canada. Was later arrested and charged
with conspiracy to traffic in a narcotic  was a member of a group in possession of $10 million of heroin  pleaded
guilty and sentenced to 8 years in prison. 1991 he renewed his claim for Convention refugee status and the Ministry
issued a conditional deportation order which was conditional upon his being determined to be not a Convention
refugee  Board found him to not be one  Federal Court dismissed his application for JR and certified a serious
question of general importance: “is it an error of law for the Refugee Division to interpret article 1F(c) of the
Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada?”
o Federal Court of Appeal answered no  he appealed
The Court of Appeal confined itself to answering the certified question. The court did not consider what standard of
review had been applied below, nor whether that was the correct standard
The certification of a "question of general importance" is the trigger by which an appeal is justified. The object of the
appeal is still the judgment itself, not merely the certified question. One of the elements necessary for the disposition
of an application for judicial review is the standard of review of the decision of the administrative tribunal whose
decision is being reviewed, and that question is clearly in issue in this case. Reluctant as this Court is to decide issues
not fully argued before it, determining the standard of review is a prerequisite to the disposition of this case.
The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the
statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask:
"[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive
decision of the Board?"
Some provisions within the same Act may require greater curial deference than others, depending on the factors which
will be described in more detail below. To this extent, it is still appropriate and helpful to speak of "jurisdictional
questions" which must be answered correctly by the tribunal in order to be acting intra vires
But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which
the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In
other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of
the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will
be shown
The factors to be taken into account in determining the standard of review have been canvassed in a number of recent
decisions of this Court, and may be divided into four categories
o Privative clauses  The absence of a privative clause does not imply a high standard of scrutiny, where other
factors bespeak a low standard. However, the presence of a "full" privative clause is compelling evidence that
the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary
as regards the particular determination in question. A full privative clause is "one that declares that decisions
of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are
excluded"
 In essence, a partial or equivocal privative clause is one which fits into the overall process of
evaluation of factors to determine the legislator's intended level of deference, and does not have the
preclusive effect of a full privative clause.
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Expertise  this category includes several considerations. If a tribunal has been constituted with a particular
expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its
decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of
deference will be accorded
 expertise must be understood as a relative, not an absolute concept
 Making an evaluation of relative expertise has three dimensions: the court must characterize the
expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal;
and it must identify the nature of the specific issue before the administrative decision-maker relative
to this expertise
 Once a broad relative expertise has been established, however, the Court is sometimes prepared to
show considerable deference even in cases of highly generalized statutory interpretation where the
instrument being interpreted is the tribunal's constituent legislation
 In short, a decision which involves in some degree the application of a highly specialized expertise
will militate in favour of a high degree of deference, and towards a standard of review at the patent
unreasonableness end of the spectrum
Purpose of the Act as a Whole, and the Provision in Particular  The purpose of a statute is often indicated
by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for
expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its
members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of
establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different
constituencies, then the appropriateness of court supervision diminishes.
 That legal principles are vague, open-textured, or involve a "multi-factored balancing test" may also
militate in favour of a lower standard of review (Southam, at para. 44). These considerations are all
specific articulations of the broad principle of "polycentricity" well known to academic commentators
who suggest that it provides the best rationale for judicial deference to non-judicial agencies
 While judicial procedure is premised on a bipolar opposition of parties, interests, and factual
discovery, some problems require the consideration of numerous interests simultaneously, and the
promulgation of solutions which concurrently balance benefits and costs for many different parties.
Where an administrative structure more closely resembles this model, courts will exercise restraint.
The polycentricity principle is a helpful way of understanding the variety of criteria developed under
the rubric of the "statutory purpose".
The "Nature of the Problem": A Question of Law or Fact?  As mentioned above, even pure questions of
law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis
suggest that such deference is the legislative intention, as this Court found to be the case in Pasiechnyk, supra.
Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions
which are pure determinations of law.
 The justification for this position relates to the question of relative expertise mentioned previously.
There is no clear line to be drawn between questions of law and questions of fact, and, in any event,
many determinations involve questions of mixed law and fact.
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Of course, it is not easy to say precisely where the line should be drawn; though in most cases it
should be sufficiently clear whether the dispute is over a general proposition that might qualify as a
principle of law or over a very particular set of circumstances that is not apt to be of much interest to
judges and lawyers in the future.
In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the
primary finder of fact. Less deference is warranted on questions of law, in part because the finder of
fact may not have developed any particular familiarity with issues of law. While there is merit in the
distinction between fact and law, the distinction is not always so clear. Specialized boards are often
called upon to make difficult findings of both fact and law. In some circumstances, the two are
inextricably linked. Further, the "correct" interpretation of a term may be dictated by the mandate of
the board and by the coherent body of jurisprudence it has developed. In some cases, even where
courts might not agree with a given interpretation, the integrity of certain administrative processes
may demand that deference be shown to that interpretation of law.
The creation of a legislative "scheme" combined with the creation of a highly specialized
administrative decision-maker, as well as the presence of a strong privative clause was sufficient to
grant an expansive deference even over extremely general questions of law.
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Keeping in mind that all the factors discussed here must be taken together to come to a view of the
proper standard of review, the generality of the proposition decided will be a factor in favour of the
imposition of a correctness standard. This factor necessarily intersects with the criteria described
above, which may contradict such a presumption
This is the first time this Court has had the opportunity of considering the standard of review over decisions of the
Immigration and Refugee Board. There is surprisingly scant discussion of the issue in previous Federal Court
decisions. In most cases, a patent unreasonableness or "perverse or capricious" standard is applied
In the thorough decision of Richard J. in Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1
F.C. 741 (T.D.), however, the question before this Court is directly addressed.
o The case involved a Board determination that the applicants were not refugees because they had an "internal
flight alternative". Richard J. examines s. 82.1 of the Immigration Act and s. 18.1 of the Federal Court Act,
which set out the possibility of an application for judicial review of a Board decision, and the grounds upon
which such a decision may be reversed. He considers many of the controlling authorities of the day, including
Pezim and Bradco.
o Although conceding that s. 67(1) of the Immigration Act is not a strong privative clause, he points out that
many cases rely more on the specialized nature of the tribunal in question than on the presence or absence of a
privative clause and notes: (a) that there is a limited structure for applying for judicial review; (b) that appeals
from the Trial Division may only be taken when certified as a "serious question of general importance" under
s. 83(1) of the Immigration Act; (c) that the structure of refugee determination is not typically adversarial in
nature, and that members of the Board have wide powers as to production of evidence and fact-finding; (d)
that there is no adverse party; (e) that the international law context, and the implementation of the Refugee
Convention in Canadian law is highly complex and therefore requires specialized knowledge; (f) that the
members of the Board are experts in their field and draw upon detailed, expert reports from the
Documentation Centre of Employment and Immigration Canada.
Richard J.'s judgment in Sivasamboo, described above in some detail, presents admirably the case for a high level of
deference to the decision of the Board. In my judgment, however, applying the pragmatic and functional analysis to
the Act indicates that the decision of the Board in this case should be subjected to a standard of correctness
First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the
legislative intention as to the standard of review is the use of the words "a serious question of general importance"
(emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants
the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to
incorrect decisions of the Board?
In short, s. 83(1) of the Act grants a statutory right of appeal based upon the criterion of "generality". The principle
described in Southam and applied in many other cases, which is really no more than an assumption as to legislative
intent, is reinforced by explicit statutory inclusion
Moreover, the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review
here. A clear majority of this Court has found in a number of cases that deference should not be shown by courts to
human rights tribunals with respect to "general questions of law" (Mossop, supra, at p. 585), even legal rules
indisputably at the core of human rights adjudication. The categorical nature of this rule has been mitigated by
observations in other cases, however
Although the precise degree of deference which should be accorded to a human rights tribunal may still be open to
question, the factors militating against deference in those cases apply with much greater force to the issues here. In
those cases, the relationship relevant for considering the proper standard of review was that between a tribunal with
specific expertise and experience in human rights adjudication, and provisions whose purpose is to protect human
rights. The provision in question here shares that purpose
But the Board's expertise in matters relating to human rights is far less developed than that of human rights tribunals.
The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in
particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of
origin. Unlike the situation of a human rights tribunal, the relationship between the expertise and the provision in
question here is remote.
Nor is there any indication that the Board's experience with previous factual determinations of risk of persecution
gives it any added insight into the meaning or desirable future development of the provision in question here. Unlike
many cases involving determinations by human rights tribunals, this case does not involve any significant
"impregnation" of legal principle with fact, as demonstrated by the ease with which the reviewing court was able to
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extract a question of general importance for the purposes of s. 83(1). Here, the legal principle is easily separable from
the undisputed facts of the case and would undoubtedly have a wide precedential value.
Nor can the Board be characterized as performing a "managing" or "supervisory" function, as was found in Southam
and National Corn Growers. The Board itself is not responsible for policy evolution. The purpose of the Convention and particularly that of the exclusions contained in Article 1F - is clearly not the management of flows of people, but
rather the conferral of minimum human rights' protection. The context in which the adjudicative function takes place
is not a "polycentric" one of give-and-take between different groups, but rather the vindication of a set of relatively
static human rights, and ensuring that those who fall within the prescribed categories are protected.
Added to these indications of the intent of the legislator with regard to the development of general legal principles, is
the absence of a strong privative clause. Indeed, read in the light of s. 83(1), it appears quite clear that the privative
clause, such as it is, is superseded with respect to questions of "general importance". As has been emphasized above,
the "pragmatic and functional" approach allows differing standards of deference even within different sections of the
same Act, and with regard to different types of decisions taken by the tribunal in question. Here, the wording of the
privative clause goes hand in hand with the fourth factor of the functional and pragmatic analysis, namely, that
determinations of abstract principles with wide application is a factor militating against deference
I conclude that a correctness standard applies to determinations of law by the Board. Sivasamboo dealt with review of
a question of a significantly different nature and I wish to emphasize that I make no comment about the correctness of
that decision, specific as it is to the facts presented there
Applying the Standard of Review
Dr. Q. v College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226
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This brings us to the second erroneous assumption -- that because the Act grants a right of appeal, the matter could be
dealt with without recourse to the usual administrative law principles pertaining to standard of review
The term "judicial review" embraces review of administrative decisions by way of both application for judicial review
and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the
reviewing judge must begin by determining the standard of review on the pragmatic and functional approach.
In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to
determining the standard of judicial review of administrative decisions
This approach also gives due regard to "the consequences that flow from a grant of powers" (Bibeault, at p. 1089) and,
while safeguarding "[t]he role of the superior courts in maintaining the rule of law" (p. 1090), reinforces that this
reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires
into legislative intent, but does so against the backdrop of the courts' constitutional duty to protect the rule of law.
To determine standard of review on the pragmatic and functional approach, it is not enough for a reviewing court to
interpret an isolated statutory provision relating to judicial review. Nor is it sufficient merely to identify a categorical
or nominate error, such as bad faith, error on collateral or preliminary matters, ulterior or improper purpose, no
evidence, or the consideration of an irrelevant factor. Rather, the pragmatic and functional approach calls upon the
court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body
should receive exacting review by a court, undergo "significant searching or testing" (Southam, supra, at para. 57), or
be left to the near exclusive determination of the decision-maker.
under the pragmatic and functional approach, even "the review for abuse of discretion may in principle range from
correctness through unreasonableness to patent unreasonableness". The nominate grounds, language of jurisdiction,
and ossified interpretations of statutory formulae, while still useful as familiar landmarks, no longer dictate the
journey
it is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demand
correctness from the decision-maker. Nor is a reviewing court's interpretation of a privative clause or mechanism of
review solely dispositive of a particular standard of review:
The pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of
factors. This approach applies whenever a court reviews the [page238] decision of an administrative body
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors
o the presence or absence of a privative clause or statutory right of appeal;
o the expertise of the tribunal relative to that of the reviewing court on the issue in question;
o the purposes of the legislation and the provision in particular; and,
o the nature of the question
 law, fact, or mixed law and fact
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The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the
courts in maintaining the rule of law.
The first factor focuses generally on the statutory mechanism of review. A statute may afford a broad right of appeal
to a superior court or provide for a certified question to be posed to the reviewing court, suggesting a more searching
standard of review
A statute may be silent on the question of review; silence is neutral, and "does not imply a high standard of scrutiny":
o The stronger a privative clause, the more deference is generally due
The second factor, relative expertise, recognizes that legislatures will sometimes remit an issue to a decision-making
body that has particular topical expertise or is adept in the determination of particular issues. Where this is so, courts
will seek to respect this legislative choice when conducting judicial review.
o Greater deference will be called for only where the decision-making body is, in some way, more expert than
the courts and the question under consideration is one that falls within the scope of this greater expertise
o Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and
law, or fact alone. The composition of an administrative body might endow it with knowledge uniquely suited
to the questions put before it and deference might, therefore, be called for under this factor
o Simply put, "whether because of the specialized knowledge of its decision-makers, special procedure, or nonjudicial means of implementing the Act", an administrative body called upon to answer a question that falls
within its area of relative expertise will generally be entitled to greater curial deference
The third factor is the purpose of the statute. Since the conceptual focus of the pragmatic and functional approach is
upon discerning the intent of the legislature, it is fitting that reviewing courts are called upon to consider the general
purpose of the statutory scheme within which the administrative decision is taking place. If the question before the
administrative body is one of law or engages a particular aspect of the legislation, the analysis under this factor must
also consider the specific legislative purpose of the provision(s) implicated in the review. As a general principle,
increased deference is called for where legislation is intended to resolve and balance competing policy objectives or
the interests of various constituencies
o A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative
responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of
multiple sets of interests or considerations will demand greater deference from a reviewing court
o For example, provisions that require the decision-maker to "have regard to all such circumstances as it
considers relevant" or confer a broad discretionary power upon a decision-maker will generally suggest
policy-laden purposes and, consequently, a less searching standard of review
o A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature
intended to leave the issue to the discretion of the administrative decision-maker and, therefore, militates in
favour of greater deference.
The final factor is the nature of the problem. In appellate review of judicial decisions, the nature of the question is
almost entirely determinative of standard of review:
o For example, as the [court] has made clear, judicial decisions of first instance on factual issues will only be
interfered with where the appellate court can identify a "palpable and overriding error" or where the finding
was "clearly wrong":
o When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more
deference towards the tribunal's decision. Conversely, an issue of pure law counsels in favour of a more
searching review
Having considered each of these factors, a reviewing court must settle upon one of three currently recognized
standards of review
Where the balancing of the four factors above suggests considerable deference, the patent unreasonableness standard
will be appropriate. Where little or no deference is called for, a correctness standard will suffice. If the balancing of
factors suggests a standard of deference somewhere in the middle, the reasonableness simpliciter standard will apply.
Law Society of New Brunswick v Ryan [2003] 1 SCR 247
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The Law Society had disbarred Ryan for various forms of professional misconduct. He appealed to the New
Brunswick Court of Appeal as provided for in the Law Society Act which remitted the matter back to the Discipline
committee for reconsideration  committee reaffirmed its decision and he appealed  Court of Appeal allowed the
appeal and substituted the penalty with one of an indefinite suspension and the Law Society appealed
the pragmatic and functional approach applies to judicial review, whether that review is by way of application to the
court or statutory right of appeal. This means that courts must always select and employ the proper level of deference.
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There is no shortcut past the components of the pragmatic and functional approach as recently set out in
Pushpanathan
How Many Standards Are Available in Review of Administrative Decisions?
In the Court's jurisprudence, only three standards of review have been defined for judicial review of administrative
action
The pragmatic and functional approach set out in Bibeault, supra, and more recently in Pushpanathan, will determine,
in each case, which of these three standards is appropriate. I find it difficult, if not impracticable to conceive more
than three standards of review. In any case, additional standards should not be developed unless there are questions of
judicial review to which the three existing standards are obviously unsuited.
To elaborate on this point, in Southam, supra, the Court held that an unreasonable decision was one that did not stand
up to a somewhat probing analysis. It is not clear that there is helpful language to describe a conceptually distinct
fourth standard that would be less deferential than reasonableness simpliciter but more deferential than correctness. At
this point, the multiplication of standards past the three already identified would force reviewing courts and the parties
that appear before them into complex and technical debates at the outset
o I am not convinced that the increase in complexity generated by adding a fourth standard would lead to
greater precision in achieving the objectives of judicial review of administrative action.
A pragmatic and functional approach should not be unworkable or highly technical. Therefore I emphasize that, as
presently developed, there are only three standards. Thus a reviewing court must not interfere unless it can explain
how the [page260] administrative action is incorrect, unreasonable, or patently unreasonable, depending on the
appropriate standard
The Pragmatic and Functional Approach Applied to the Disputed Decision
The pragmatic and functional approach determines the standard of review in relation to four contextual factors:
o (1) the presence or absence of a privative clause or statutory right of appeal;
 There is no privative clause in the Act. Rather, there is a broad right of appeal on questions of law or
fact pursuant to s. 66(1):
 The existence of a broad statutory right of appeal indicates that less deference may be due to
decisions of the Discipline Committee
 "The absence of a privative clause does not imply a high standard of scrutiny, where other factors
bespeak a low standard." (Pushpanathan)
 The specialization of duties intended by the legislature may warrant deference notwithstanding the
absence of a privative clause
o (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question;
 As the Chief Justice notes in Dr. Q, supra, at para. 28, the question at this stage of the pragmatic and
functional analysis is whether the decision-making body has greater expertise than the reviewing
court with respect to the question under review. This expertise may be derived from specialized
knowledge about a topic or from experience and skill in the determination of particular issues.
 First, the Discipline Committee has greater expertise than courts in the choice of sanction for
breaches of professional standards
 Current members of the Law Society may be more intimately acquainted with the ways that
these standards play out in the everyday practice of law than judges who no longer take part
in the solicitor-client relationship
 Second, members of the public are appointed to the Discipline Committee pursuant to s. 55(1)(b) of
the Act. There will always be one lay person on a panel of the Committee by operation of s. 55(4).
Although they will presumably have less knowledge of legal practice than judges or the members of
the Law Society, lay persons may be in a better position to understand how particular forms of
conduct and choice of sanctions would affect the general public's perception of the profession and
confidence in the administration of justice
 Third, the Discipline Committee has relative expertise generated by repeated application of the
objectives of professional regulation set out in the Act to specific cases in which misconduct is
alleged
 The Discipline Committee's expertise is not in a specialized area outside the general knowledge of
most judges (such as securities regulation in Pezim, supra, or competition regulation in Southam,
supra). However, owing to its composition and its familiarity with the particular issue of imposing a
sanction for professional misconduct in a variety of settings, the Discipline Committee arguably has
more expertise than courts on the sanction to apply to the misconduct
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(3) the purposes of the legislation and the provision in particular
 The preamble of the Act suggests its purpose
 AND WHEREAS it is desirable, in the interests of the public and the members of the legal
profession, to continue the Law Society of New Brunswick as a body corporate for the
purposes of advancing and maintaining the standard of legal practice in the Province, and of
governing and regulating the legal profession
 Clearly, a major objective of the Act is to create a self-regulating professional body with the authority
to set and maintain professional standards of practice
 "The privilege of self-government is granted to professional organizations only in exchange for, and
to assist in, protecting the public interest with respect to the services concerned
 More specifically, the disciplinary process is meant to advance the duties and objectives set out in s. 5
of the Act (page 784)
 In any particular disciplinary proceeding, the Discipline Committee has a broad discretion in respect
of the sanctions it may apply to meet the objectives of the Act
 Taken as a whole, the legislative purpose of the Act suggests a higher degree of deference to
decisions of the Discipline Committee. This deference gives effect to the legislature's intention to
protect the public interest by allowing the legal profession to be self-regulating
o (4) the nature of the question -- law, fact, or mixed law and fact
 The question of what sanction Mr. Ryan should face as a result of his misconduct is a question of
mixed fact and law since it involves the application of general principles of the Act to specific
circumstances
 The Committee's decision on sanction is not one that will determine future cases except insofar as it is
a useful case for comparison. The decision is intricately bound to many factual findings and
inferences about the misconduct of Mr. Ryan and the interests of the public and the profession.
o Conclusion on the pragmatic and functional approach
 Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the
Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a
more deferential standard of review than correctness.
 These factors suggest that the legislator intended that the Discipline Committee of the self-regulating
Law Society should be a specialized body with the primary responsibility to promote the objectives of
the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions.
 In looking at all the factors as discussed in the foregoing analysis, I conclude that the appropriate
standard is reasonableness simpliciter
 Thus, on the question of the appropriate sanction for professional misconduct, the Court of Appeal
should not substitute its own view of the "correct" answer but may intervene only if the decision is
shown to be unreasonable.
The Standard of Reasonableness simpliciter: Does the Standard Float alont a Spectrum According to the Case?
The respondent asserts that the standard of reasonableness is an "area on the spectrum or continuum" between patent
unreasonableness and correctness. This argument is meant to support the low deference that the Court of Appeal
afforded to the decision of the Discipline Committee despite having decided that a pragmatic and functional
examination led to the conclusion that the standard of reasonableness applied. The thrust of the respondent's
submissions is that it is sometimes appropriate to apply the reasonableness standard more deferentially and sometimes
less deferentially depending on the circumstances. To deny this flexibility, the respondent argues, would signal a
return to a formalist approach to judicial review
o This argument must be rejected
o This argument rests on a mistaken extension of the metaphor of a spectrum.
It is true that the Court has resorted to the metaphor of a spectrum in order to explain the relative ordering of the three
recognized standards of review.
The idea is that the standards could be arranged from least deferential to most deferential with reasonableness as the
intermediate standard of review
Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court
will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or
decided as the tribunal did (see Southam, supra, at paras. 78-80).
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If the standard of reasonableness could "float" this would remove the discipline involved in judicial review:
courts could hold that decisions were unreasonable by adjusting the standard towards correctness instead of
explaining why the decision was not supported by any reasons that can bear a somewhat probing examination
The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons
given, when taken as a whole, support the decision?" This is the question that must be asked every time the pragmatic
and functional approach in Pushpanathan, supra, directs reasonableness as the standard.
o Deference is built into the question since it requires that the reviewing court assess whether a decision is
basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage
de novo in its own reasoning on the matter
The suggestion that reasonableness is an "area" allowing for more or less deferential articulations would require that
the court ask different questions of the decision depending on the circumstances and would be incompatible with the
idea of a meaningful standard.
What does the Reasonableness Standard Require of a Reviewing Court?
Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness
simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was
unreasonable
o An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard
must look to see whether any reasons support it.
At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the
fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the
court may undertake its own reasoning process to arrive at the result it judges correct.
In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask
itself what the correct decision would have been.
Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the
primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of
reasonableness does not imply that a decision-maker is merely afforded a "margin of error" around what the court
believes is the correct result
There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the
decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are
under review against the standard of reasonableness.
The standard of reasonableness simpliciter is also very different from the more deferential standard of patent
unreasonableness
o In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a
patently unreasonable one as rooted "in the immediacy or obviousness of the defect".
o Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and
easily, leaving no real possibility of doubting that the decision is defective.
o A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance
with reason"
o A decision may be unreasonable without being patently unreasonable when the defect in the decision is less
obvious and might only be discovered after "significant searching or testing"
How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its
correctness? The answer is that a reviewing court must look to the reasons given by the tribunal
o A decision will be unreasonable only if there is no line of analysis within the given reasons that could
reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the
reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a
somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not
interfere
o This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation
even if this explanation is not one that the reviewing court finds compelling
At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision
remembering that the issue under review does not compel one specific result
Patent Unreasonableness
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National Corn Growers Assn. v. Canada (Import Tribunal) [1990] 2 SCR 1324
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Wilson (Dissent)  CUPE v New Brunswick, Liquor Corp. is the starting point for any discussion of the appropriate
standard of review of an administrative tribunal’s interpretation of its constitutive legislation
Dicey had a remarkable contribution on the early history of administrative law
o First, "regular law" was supreme and individuals should not be subject to "arbitrary power".
o Second, the state's officials were as much subject to the "ordinary" law of the land administered by "the
ordinary law courts" as other citizens: "the "rule of law" in this sense excludes the idea of any exemption of
officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction
of the ordinary tribunals".
o Third, "the principles of private law have with us been by the action of the courts and Parliament so extended
as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary
law of the land".
o Of particular relevance to this appeal are the first two propositions: that "regular law" is supreme and that the
state's officials are subject to the jurisdiction of the "ordinary" courts in the same way as any individual
As guardians of the rule of law it was incumbent on the courts to ensure that any person or body relying on power
delegated by the legislature abide by the terms and conditions on which that power was granted. Thus, ministers,
agencies and administrative tribunals would have to be able to justify their actions by pointing to specific legislative
authority in the same way that any citizen would have to be prepared to show that his or her acts were lawful
the notion that emanations of the state which had received delegated power might be subject to a different standard of
review from that imposed on lower courts initially found little favour in the courts
However, as time passed this changed
o It came to be recognized that the process of running a modern administrative state required
 (1) that officials be allowed a certain degree of discretion; and
 (2) that the countless decisions administrative tribunals are called upon to make should not be subject
to the same extensive form of review as the decisions of courts:
the flaws in classic "rule of law" thinking became more evident as the administrative state evolved
o The idea that there is an interest in securing the efficacious discharge of regulatory legislation was no part of
this model, except in so far as it was viewed as a natural correlative of the proper maintenance of external
judicial supervision delimiting the boundaries of the legislative will (Craig excerpt)
Evidence of a continuing judicial reluctance to accept the proposition that tribunals should not be subject to the same
standard of review as courts is seen in some of the judgments of this Court in the late 1960's and early 1970's
It seems to me that these decisions reflect a lack of sympathy for the proposition that if administrative tribunals are to
function effectively and efficiently, then we must recognize
o (1) that their decisions are crafted by those with specialized knowledge of the subject matter before them; and
o (2) that there is value in limiting the extent to which their decisions may be frustrated through an expansive
judicial review.
Courts have struggled to move away from Dicey
Part of this process has involved a growing recognition on the part of courts that they may simply not be as well
equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through
bodies exercising delegated power
Courts have also come to accept that they may not be as well qualified as a given agency to provide interpretations of
that agency's constitutive statute that make sense given the broad policy context within which that agency must work.
o Interpreting a statute in a way that promotes effective public policy and administration may depend more
upon the understanding and insights of the front-line agency than the limited knowledge, detachment, and
modes of reasoning typically associated with courts of law (Evans excerpt)
In a detailed review of the forces that led up to this Court's decision in C.U.P.E. Professor Evans suggests that the
decision was the result of pressure that emanated from three sources
o First, courts engaged in overt reappraisal of the decision-making roles assigned by the legislature to courts
and agencies in the administration of regulatory programs
o Second, courts recognized the "failure of previous judicial efforts to construct logically coherent doctrine for
distinguishing those questions conclusively committed to the agency from those which the courts could
decide for themselves".
o Third, "judges have recognized that the interpretation of statutory language requires more than the kind of
linguistic and textual analysis that they had previously appeared to believe would, with the aid of the
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presumptions of statutory interpretation developed by the courts, inevitably provide the uniquely "correct"
meaning of legislation".
o Thus, when a provision of an agency's enabling legislation did not admit of only one "correct" meaning,
interpretation was increasingly regarded as a matter for the exercise of the agency's discretion informed by its
specialist perspective.
This process of rethinking the relationship between courts and administrative tribunals and its implications for
statutory interpretation was foreshadowed in Dickson J.'s (as he then was) decision in Service Employees'
International Union, Local No. 333 v. Nipawin District Staff Nurses Association
o There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent
statute and decide questions any way it sees fit
o But if the Board acts in good faith and its decision can be rationally supported on a construction which the
relevant legislation may reasonably be considered to bear, then the Court will not intervene
But it is in C.U.P.E. that this line of reasoning was most fully developed
The adoption of a "reasonableness" test marked an important shift away from Dicey's conviction that tribunals should
be subject to the same standard of review as courts. This new approach was quickly adopted and applied in a series of
cases which one commentator has suggested amount to a "restrictive and unified theory of judicial review
While one may question whether the Court deliberately set out to construct a "restrictive and unified" theory of
judicial review through its decisions in C.U.P.E., Volvo, Douglas and Olds College, in my view there can be no doubt
that this [page1342] Court made clear that it was not prepared to interfere with a specialized tribunal's interpretation
of its constitutive legislation where the interpretative exercise was one that was within the tribunal's area of expertise
and where the impugned interpretation was not patently unreasonable
Arthurs quote
o There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in
worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is
sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of
the various alternate interpretations
In recent years, however, some commentators have expressed concern that this Court has shown signs of hesitation
about its commitment to the position set out in C.U.P.E.
The risk, of course, is that all a court need do to avoid the deferential standard of review set out in C.U.P.E. is to
classify a provision as one that goes to jurisdiction
Beetz J. subsequently acknowledged that ascertaining a tribunal's jurisdiction would not always be easy  Bibeault
o I doubt whether it is possible to state a simple and precise rule for identifying a question of jurisdiction, given
the fluidity of the concept of jurisdiction and the many ways in which jurisdiction is conferred on
administrative tribunals
He then set about developing a "pragmatic and functional" approach to dealing with questions of jurisdiction, one that
would be sensitive to "the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise
of its members and the nature of the problem before the tribunal"
In my view, this is not an appropriate appeal in which to discuss the strengths and weaknesses of Acadie and the
approach taken in Bibeault to the process of ascertaining a tribunal's jurisdiction.
it seems to me that the reaction to Acadie serves to remind us that it is important to be sensitive to the suggestion that
the Court may be wavering in its commitment to C.U.P.E. and to make it clear that in a case like the one before us the
"reasonableness" test remains the appropriate standard of review.
It seems to me that Dickson J. (in CUPE) was not suggesting that a tribunal's decision should be reviewed if the
conclusions reached in that decision could not be sustained on any reasonable interpretation of the facts or the law.
Instead, he was stating that if it was evident that the Board's interpretation of provisions in its constitutive legislation
was not "patently unreasonable", then the process of judicial review should come to an end
The distinction is a subtle one. But it is not without importance. One must, in my view, not begin with the question
whether the tribunal's conclusions are patently unreasonable; rather, one must begin with the question whether the
tribunal's interpretation of the provisions in its constitutive legislation that define the way it is to set about answering
particular questions is patently unreasonable. If the tribunal has not interpreted its constitutive statute in a patently
unreasonable fashion, the courts must not then proceed to a wide ranging review of whether the tribunal's conclusions
are unreasonable.
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If the legislature wishes to place limits on the range of documents that the Tribunal may refer to, then it is for the
legislature to do so. In the meantime, courts should not get into the business of assessing what documents a statutory
tribunal may consult.
Similarly, I do not think that it is this Court's role on an application for judicial review to look beyond the Tribunal's
statute to determine whether the Tribunal's interpretation of that statute is consistent with Canada's international
obligations
If courts were to take it upon themselves to conduct detailed reviews of these decisions on a regular basis, the
Tribunal's effectiveness and authority would soon be effectively undermined
the only issue which this Court may consider, once it accepts that the interpretation of a given provision is a matter
that falls within a tribunal's jurisdiction, is whether the Tribunal's interpretation of the provision is "so patently
unreasonable that its construction cannot be rationally supported by the relevant legislation".
Thus, the majority (of the Tribunal) concluded that s. 42 covered situations in which Canadian producers are forced to
lower prices in order to keep subsidized goods out of the Canadian market
In my view, it is clear that the Tribunal was dealing with the kind of issue that it was set up to deal with. It cannot be
said to have been acting outside its jurisdiction
Gonthier (Judgment)  These are two appeals from a judgment of the Federal Court of Appeal dismissing
applications by the appellants pursuant to s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), for judicial
review of a decision of the Canadian Import Tribunal finding that the subsidizing of importations into Canada of grain
corn originating in and exported from the United States of America has caused, is causing and is likely to cause
material injury to the production in Canada of like goods
The investigation was launched as a result of a complaint made by the intervener, the Ontario Corn Producers'
Association ("OCPA"), that subsidies paid to American producers substantially [page1354] lowered Canadian corn
prices causing material injury to the domestic industry.
Although the terms of s. 28 of the Federal Court Act are quite broad in scope, it is to be remembered that courts, in the
presence of a privative clause, will only interfere with the findings of a specialized tribunal where it is found that the
decision of that tribunal cannot be sustained on any reasonable interpretation of the facts or of the law
In this particular case, s. 76 of SIMA provides that the Tribunal's decision, with certain limited exceptions, is final and
conclusive. Given this provision, this Court, therefore, will only interfere with the Tribunal's ruling if it acted outside
the scope of its mandate by reason of its conclusions being patently unreasonable
In some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In
others, it may be no less unreasonable but this can only be understood upon an in-depth analysis. Such was the case in
the C.U.P.E. decision where it was found that the Board's interpretation of the legislation at issue was reasonable even
though it was not the only reasonable one
The first issue to be decided is whether it was patently unreasonable for the Tribunal to make reference to the GATT
for the purpose of interpreting SIMA.
I note that it was not disputed in either of the courts below that the Canadian legislation was designed to implement
Canada's GATT obligations.
Since I am prepared to accept that such is the case, the only issue that really needs to be discussed concerns the exact
use which may be made of the GATT in interpreting s. 42
in circumstances where the domestic legislation is unclear it is reasonable to examine any underlying international
agreement. In interpreting legislation which has been enacted with a view towards implementing international
obligations, as is the case here, it is reasonable for a tribunal to examine the domestic law in the context of the
relevant agreement to clarify any uncertainty.
Second, and more specifically, it is reasonable to make reference to an international agreement at the very outset of
the inquiry to determine if there is any ambiguity, even latent, in the domestic legislation.
The suggestion that recourse can be had to an underlying international agreement where a latent ambiguity can be
asserted implies that there is no need to find a patent ambiguity before consultation of the agreement is possible
Having found that the rules of statutory interpretation allow consideration of an underlying agreement at the
preliminary stage of determining if the domestic legislation contains an ambiguity, I do not hesitate to conclude in this
case that the Tribunal did not act unreasonably in consulting the GATT.
The question that remains, therefore, is whether the Tribunal's interpretation of s. 42 in this case, given the relevant
SIMA and GATT provisions, is unreasonable having regard to all the circumstances
With regard now to the specific issue of potential imports, s. 42 provides that the Tribunal must determine if the
subsidization "is likely to cause material injury" (emphasis added). Aside from the text of s. 42 itself, Rule 36 of the
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Tribunal's Rules of Procedure directs the Tribunal to "examine ... the actual and potential volume of the ... subsidized
goods imported into Canada" (emphasis added). Given these requirements, it was reasonable for the Tribunal to
consider that the potential for increased imports properly formed part of its inquiry
Turning now to the GATT, it is also my conclusion that nothing in Canada's international obligations made it
unreasonable for the Tribunal to find as it did. Reading the relevant GATT Code provisions, it is reasonable to
consider that broad guidelines [page1376] are provided for assessing material injury and that there is nothing in the
agreement to forbid that notice be taken, in a case such as this one, of potential imports.
In my view, under Article 6 of the Code it was not unreasonable for the Tribunal, in this particular case, to conclude
that notice could be taken of potential imports. Where, as in this case, the domestic price, because of the potential for
a great influx of relatively cheap imports, is determined by that of actual imports, it was not unreasonable for the
Tribunal to conclude that the GATT allowed it to consider the potential for substantial loss of market share.
In his dissenting judgment in the Court of Appeal, MacGuigan J. concluded that the GATT Code forbids a finding of
material injury absent an increase in the amount of imports
o When measuring a completed period such as the past, or even the present, in the only way in which the
present can be measured, material injury can refer only to what has actually happened. What has happened, in
turn, must be taken in relationship to the Code standard of a causal link between subsidized imports and
material injury. Where subsidized imports have not actually increased no material injury can be shown to
have been so caused
With all due respect, I would disagree that this is the only reasonable interpretation of the GATT Code. While an
increase in imports is a factor to be weighed in making a determination of material injury, paragraph 2 of Article 6 of
the Code lists a number of factors and concludes: "No one or several of these factors can necessarily give decisive
guidance
Having regard to the broad wording of the GATT provisions, it was not unreasonable and was therefore open to the
Tribunal to make a finding of material injury even in the absence of an increase in the amount of imports. MacGuigan
J.'s assertion to the contrary must accordingly be rejected
One of the appellants' main contentions in this case was that the Tribunal reached its decision in the absence of any
cogent evidence to support its conclusion of material injury. The appellants suggested that there was no objective
evidence upon which it could be shown that greater amounts of imports would flow into Canada and that the Tribunal,
in this case, simply ignored the SIMA and GATT requirement that there be a causal link between injury and
subsidized imports.
Upon close examination of the Tribunal's decision, I must disagree with the appellants that there was no evidence in
this case upon which a finding of material injury could be made
With respect first to price, there was evidence before the Tribunal that the world price corresponded to the American
price, which, in turn, determined the Canadian price. At the very outset of its analysis, the Tribunal noted
o …the spot and futures [sic] prices for corn established by the trading activity at the Chicago Board of Trade
are the prices looked to by all corn traders, not only in the U.S., but also in many other parts of the world
On the evidence before it, the Tribunal rejected the appellants' suggestion that injury to Canadian producers was
caused by low world prices and that such were independent of U.S. policies and programs. The Tribunal stated
o The Tribunal heard considerable argument that prices are established in response to world supply-and-demand
conditions; that the lower prices are a result of excess world supply rather than the operation of the U.S.
programmes; and that the excess supply results from increased production in countries other than the U.S
o From the evidence, the majority of the panel is persuaded that the dramatic decline in the international price
for grain corn is, in very large measure, a direct consequence of the provisions of the 1985 Farm Bill
Given these observations by the majority of the Tribunal, I cannot adhere to the view that there was no evidence, with
respect to price, indicating that material injury had been caused, was caused and was likely to be caused to corn
producers in Canada
In my opinion, MacGuigan J.'s reading of the Tribunal's decision is too narrow. In the course of giving its reasons, the
majority of the Tribunal, in point of fact, made quite clear that there was a large surplus in American stocks and that
this surplus would only diminish over a long period of time. It stated
o There is every indication that present conditions will persist for some time. Even with more onerous acreage
set-asides, U.S. production is unlikely to be brought into balance with current demand much before the
1988/89 crop year
In my opinion, it was not unreasonable for the Tribunal to infer in this case, given the open nature of the Canadian
market and given that the United States is the only viable source for imports, that American stocks not used for
domestic consumption would have flowed into Canada in greater amounts. It could reasonably assume that Canadian
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buyers will purchase the products at issue at the lowest price available, and that, absent an appropriate price response
by Canadian producers, a significant amount of American goods would penetrate the Canadian market. Given these
circumstances, I accordingly find that the Tribunal's reasoning and conclusions were not unreasonable and should not
be disturbed.
I do not think that the Tribunal's references to the provisions of the GATT, as well as all other aspects of the reasoning
by which it arrived at its interpretation of SIMA, are totally irrelevant to a determination of an application for judicial
review
Toronto (City) Board of Education v. OSSTF District 15 [1997] 1 SCR 487
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Teacher taught for the board for nearly 20 years and applied for VP 39 times but was never promoted. He filed a
complaint with the OHRC claiming that the hiring practices were systematically discriminatory but the board of
inquiry disagreed. He wrote disturbing letters to the Board containing veiled threats  went to a psychiatrist who
said that he would not follow through but would continue. He was fired for unprofessional conduct and filed a
grievance  wrote a third letter and board of arbitration said that his dismissal should be set aside  court quashed it,
Court of Appeal overturned it
The sole issue in this appeal is whether the Board of Arbitration made a patently unreasonable decision in ordering
that Mr. Bhadauria be conditionally reinstated in his position as a teacher with the appellant Board of Education
The essential question before the Board was whether the failure to meet these standards was temporary and whether
discharge was appropriate.
o These issues were within the jurisdiction of the Board.
o Thus their decision can only be set aside if it was patently unreasonable.
What constitutes a patently unreasonable decision?
Where a tribunal is interpreting a legislative provision, the test is
o was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by
the relevant legislation and demands intervention by the court upon review?
A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court
will not intervene "so long as the words of that agreement have not been given an interpretation which those words
cannot reasonably bear":
It has been held that a finding based on "no evidence" is patently unreasonable. However, it is clear that a court should
not intervene where the evidence is simply insufficient.
As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell
o . . a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand,
insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time
have amounted to an error reviewable on the face of the record, in present day law and practice such error
falls within the operational area of the statutory board, is included in the cryptic statement that the board has
the right to be wrong within its jurisdiction, and hence is free from judicial review
When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only
intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact": Lester
All these tests are strict
It is said that it is difficult to know what "patently unreasonable" means
o Obviously, the patently unreasonable test sets a high standard of review.
o based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the
Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance
with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the
record to determine the basis for the challenged findings of fact or law made by the tribunal.
[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In
others, it may be no less unreasonable but this can only be understood upon an in-depth analysis." (National Corn
Growers)
in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is
necessary for a reviewing court to examine the evidence that formed the basis for the inference.
even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it
can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting
the tribunal's findings.
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Finding of “Just Cause” for Discipline
The first step in any inquiry as to whether an employee has been dismissed for "just cause" is to ask whether the
employee is actually responsible for the misconduct alleged by the employer. The second step is to assess whether the
misconduct gives rise to just cause for discipline. The final step is to determine whether the disciplinary measures
selected by the employer are appropriate in light of the misconduct and the other relevant circumstances
There is no doubt that Mr. Bhadauria was guilty of misconduct. Furthermore, the arbitrators clearly found that there
was "just cause" for discipline. The only question was whether the disciplinary measure of dismissal was too harsh.
The standards of conduct that everyone agrees were breached by Mr. Bhadauria are set out in s. 264(1)(c) of the
Education Act
o The requirements it sets for teachers reflect the ideal and not the minimal standard.
o They are so idealistically high that even the most conscientious, earnest and diligent teacher could not meet
all of them at all times. Angels might comply but not mere mortals.
o It follows that every breach of the section cannot be considered to infringe upon the values that are essential
to the make-up of a good teacher.
o However, the section does indicate that teachers are very properly expected to maintain a higher standard of
conduct than other employees because they occupy such an extremely important position in society
It follows that an employer will only be justified in disciplining a teacher in cases of a significant breach of the
section. There can be no doubt that the opinions expressed and the wording used in the letters of Mr. Bhadauria
constituted very significant if not extreme misconduct. The letters did not simply express dissatisfaction with working
conditions; they were threats of violence. The fact that they may have been written outside the hours of teaching duty
cannot either excuse or alleviate the seriousness of the misconduct.
misconduct which occurs outside regular teaching hours can be the basis for discipline proceedings
o The conduct of a teacher bears directly upon the community's perception of the ability of the teacher to fulfill
such a position of trust and influence, and upon the community's confidence in the public school system as a
whole. . . .
o By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought
to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her
position, rather than whether the conduct occurs within the classroom or beyond
A conviction for a criminal offence is a common example of "off duty" conduct that gives rise to professional
disciplinary measures for teachers.
In deciding whether there is just cause for the imposition of the particular form of discipline selected by the employer,
arbitrators must assess the seriousness of the misconduct in the context of the existing circumstances
As well, it is essential that arbitrators recognize the sensitivity of the educational setting and ensure that a person who
is clearly incapable of adequately fulfilling the duties of a teacher both inside and outside the classroom is not
returned to the classroom.
In making their "leap of faith" and holding that Mr. Bhadauria should be given another chance to demonstrate that his
teaching ability had not been "completely destroyed", the majority of the Board of Arbitration made two key findings
of fact.
o These findings are, in my view, the sole basis for the Board's conclusion that the grievor was capable of
returning to the classroom.
o The first was the finding that his unacceptable conduct was temporary because it could be attributed to the
stress and frustration of the Board of Inquiry hearings.
o The second and related finding was that Mr. Bhadauria was "not beyond redemption".
o If these findings were patently unreasonable in that there was no evidence upon which they could be based,
then the decision of the arbitrators should be quashed.
In light of the importance of the role of teachers in our society, it was simply not open to the Board to conclude both
that the grievor was unfit to be in the classroom and that he should be allowed to return in the absence of evidence
that he was fit to do so. If there was any evidence that his conduct was temporary and aberrant, then it was certainly
open to the Board to exercise its discretion and reinstate Mr. Bhadauria, with or without conditions.
The reasonableness of the decision by the majority of the Board of Arbitration to return Mr. Bhadauria to his teaching
duties hinges entirely on the inference made by the majority that his conduct was temporary
o courts should always be mindful of the fact that an arbitrator is in a far better position to assess the impact of
the award. . . . Often, too, the administrative "judge" is better trained and better informed on the area of his
jurisdiction, and has access to information which more often than not does not find its way into the record
submitted to the court. To this must be added the fact that the arbitrator saw and heard the parties
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Nonetheless, I am of the view that, although the reasons of the majority of the Board of Arbitration are adequate from
a legal perspective, they do contain a number of disquieting contradictions which are difficult to explain. These
contradictions are obvious from a review of the significant items of evidence on which the arbitration board relied in
making its determination
All the evidence before the Board not only contradicted the inference made by the majority that his conduct was
temporary but rather confirmed that it persisted. First, the majority of the Board of Arbitration accepted Ms. Green's
evidence that Mr. Bhadauria was not capable of fulfilling the duties of a teacher, and they rejected Mr. Bhadauria's
evidence explaining his conduct. Second, the medical evidence indicated that while Mr. Bhadauria was not likely to
be physically violent, he was likely to continue his verbal attacks. Third, the majority had before them the third letter
of Mr. Bhadauria which demonstrated a shocking lack of judgment and exhibited the same feelings of hatred and
bitterness which prompted the first two letters
The majority of the Board unequivocally accepted and agreed with the testimony of Ms. Green, the current Director of
Education, that the grievor had failed to live up to the standards required of a teacher under s. 264(1)(c). They found
her evidence to be "straightforward" and "difficult to fault".
By contrast, the majority emphatically rejected Mr. Bhadauria's explanations of his conduct. They dismissed them as
"shallow" and unable to "withstand the able cross examination of counsel for the Board".
It is significant that the grievor himself stated in his letters that he was unfit to be in a classroom.
Evidence of Mr. Bhadauria's good character and teaching record, regardless of its duration, does not assist in
determining if his incapacity to fulfill his duties as a teacher was temporary.
The fact is that there was overwhelming evidence both in the medical reports and from other sources which indicated
that even if the actions of Mr. Bhadauria had been caused by the stress of the Board of Inquiry hearings, his actions
were not a temporary lapse. His personality, in his own words, had radically changed. There was no evidence that
would suggest that his feelings of bitterness and resentment had dissipated after the Board of Inquiry found that there
was no discrimination in the hiring practices of the appellant Board of Education. In fact, all the evidence was to the
contrary
it is clear that he was going to continue to express these extreme positions in verbal attacks. It was the threatening
manner in which he expressed his extreme views and sentiments and the total lack of judgment he demonstrated in
sending the letters, rather than his potential for physical violence, that were the basis for the conclusion that Mr.
Bhadauria was not fit to teach.
the conclusion of Dr. Malcolm was that although it would be out of character for Mr. Bhadauria to be physically
violent, it was clearly not out of character for him to express and to continue to express his feelings verbally
The report of the psychologist Dr. Ruth Bray was also accepted unconditionally by the majority. She too concluded
that he would "continue to be a thorn in the side" of his employers
All of this evidence, accepted without qualification by the majority, indicates that Mr. Bhadauria would continue his
verbal harassment
The final significant item of evidence which leads to the conclusion that the grievor's conduct was not temporary is
the third letter. It was written several months after the Board of Inquiry's decision had been rendered, and a month and
a half before the hearing before the Board of Arbitration was to begin. Curiously, the majority did not even refer to it
The third letter was part of the evidence before the Board of Arbitration. Thus, it is appropriate to consider it in
determining whether there was a basis for the inference drawn by the majority that Mr. Bhadauria's conduct was
temporary.
It is true that the third letter is, to some extent, "subsequent-event evidence" since it was written after the dismissal of
Mr. Bhadauria. However it has been decided that such evidence can properly be considered "if it helps to shed light on
the reasonableness and appropriateness of the dismissal":
In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error
for them not to do so.
Although the third letter is less objectionable than the first two, it continues to exhibit the same extreme views,
hyperbolic comparisons and total lack of judgment. The lack of judgment is demonstrated by the opening words of the
letter:
This letter is an admission by Mr. Bhadauria that he was still unable to control either his feelings or his impulse to
express those feelings, however inappropriate they may be. It provides incontrovertible evidence that Mr. Bhadauria
had not returned to a "calmer state" several months after the Board of Inquiry process came to an end, and that his
extreme feelings and lack of judgment persisted. In the face of this letter, it was patently unreasonable for the
arbitrators to conclude that his conduct was temporary and to return him to the classroom
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I note one final issue that was mentioned by the dissenting member of the Board of Arbitration, but was not raised by
the appellant in argument. It was noted by Mr. Merritt that the grievor did not demonstrate any remorse for his
conduct, or any understanding of its effects on the recipients of the letters.
o The regret he expressed related entirely to himself, and to the fact that the letters jeopardized not only the
Board of Inquiry hearing that had occupied so much of his time, energy and hope, but also his very livelihood.
o He was unable to appreciate that the letters were bound to engender fear in the recipients. Nor did he
recognize the extreme nature of his views.
o Only before the Board of Arbitration did he concede that the views expressed were inappropriate for a person
responsible for teaching young people.
The evidence that Mr. Bhadauria's misconduct was not temporary appears to be overwhelming.
o Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently
unreasonable.
o What does lead to that conclusion is that I can find no other evidence reasonably capable of supporting the
conclusion that the misconduct was a momentary aberration.
o There was certainly no onus on the employee to demonstrate that his misconduct was temporary.
o The reasons of the majority clearly indicate, however, that they accepted the employer's evidence that just
cause had been established and that the employer had discharged its onus in that regard.
o Quite simply, the evidence that the arbitrators stated they were relying upon to support their findings pointed
to the exact opposite conclusion.
o The absence of such evidence renders the decision patently unreasonable, and there was simply no basis for
the "leap of faith" that he could return to the classroom
Correctness
Trinity Western University v. British Columbia College of Teachers [2001] 1 SCR 772
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The college of teachers refused to certify Trinity to fully train teachers because of its views on homosexuality 
BCSC said that it was not within the jurisdiction of the college to consider this factor, Court of Appeal said it was
within the jurisdiction but that there was no basis for the claim of discrimination
The BCCT is empowered under s. 4 of the Teaching Profession Act (the "Act") to "establish, having regard to the
public interest, standards for the education, professional responsibility and competence of its members, persons who
hold certificates of qualification and applicants for membership and ... to encourage the professional interest of its
members".
The BCCT argues that teaching programs must be offered in an environment that reflects human rights values and that
those values can be used as a guide in the assessment of the impact of discriminatory practices on pedagogy.
BCCT claims that all institutions who wish to train teachers for entry into the public education system must satisfy the
BCCT that they will provide an institutional setting that appropriately prepares future teachers for the public school
environment, and in particular for the diversity of public school students
According to TWU, the BCCT is not authorized to decide whether the religious beliefs of TWU students and staff
may give rise to a risk of discrimination or to a perception within the public that those students will discriminate when
employed within the public education system.
Our Court accepted in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, that teachers are a
medium for the transmission of values.
he suitability for entrance into the profession of teaching must therefore take into account all features of the education
program at TWU
the College can consider the effect of public school teacher education programs on the competence and professional
responsibility of their graduates" (para. 197). The power to establish standards provided for in s. 4 of the Act must be
interpreted in light of the general purpose of the statute and in particular, the need to ensure that "the fulfilment of
public functions is undertaken in a manner that does not undermine public trust and confidence"
It would not be correct, in this context, to limit the scope of s. 4 to a determination of skills and knowledge.
We are therefore of the view that the BCCT had jurisdiction to consider discriminatory practices in dealing with the
TWU application.
All parties accepted that the standard of correctness applied to this decision because it was determinative of
jurisdiction and beyond the expertise of the members of the Council.
Was the decision of the BCCT Council Justified?
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Before this question can be answered, we must decide what is the appropriate standard of review in these
circumstances
As mentioned earlier, the appellant is of the view that the standard of patent unreasonableness applies.
the view of these parties is that the BCCT is a specialized tribunal with considerable expertise in the field of
education. It is expressly granted wide discretion in deciding what factors to take into account when approving
education programs
Determining criteria as to whether a program is appropriate for the public school system is a polycentric policy
decision involving balancing multiple factors and competing interests. The Legislature contemplated that such
decisions should be left to the Council. The [page802] respondent TWU argues that a correctness standard applies
because the purpose of the decision is the protection of minorities and promotion of human rights. The expertise of the
Council does not extend to human rights issues; the Council is predominantly comprised of school teachers with no
experience in balancing competing interests in society.
In the Court of Appeal, Goldie J.A. considered the pragmatic and functional approach first adopted in U.E.S., Local
298 v. Bibeault, [1988] 2 S.C.R. 1048, and held that the lack of a privative clause, the lack of expertise in human
rights issues of the BCCT and the purpose of the legislation indicated a standard of correctness.
under the pragmatic and functional approach, the focus of the inquiry is still on the particular provision being
interpreted by the tribunal and that some provisions will require more deference than others, although they are found
in the same Act
In the present instance, we are also dealing with the discretion of an administrative body to determine the public
interest.
the BCCT is not the only government actor entrusted with policy development. Furthermore, its expertise does not
qualify it to interpret the scope of human rights nor to reconcile competing rights. It cannot be seriously argued that
the determination of good character, which is an individual matter, is sufficient to expand the jurisdiction of the
BCCT to the evaluation of religious belief, freedom of association and the right to equality generally. As mentioned in
Pushpanathan, the expertise of the tribunal must [page804] be evaluated in relation to the issue and the relative
expertise of the court itself.
The absence of a privative clause, the expertise of the BCCT, the nature of the decision and the statutory context all
favour a correctness standard.
We mentioned earlier that a lower standard had been applied by the Court of Appeal on the findings of the BCCT
with regard to the existence of discriminatory practices and, if they are present, whether they have created a
perception that the BCCT condones this discriminatory conduct
We do not believe that different standards should apply in these circumstances. The existence of discriminatory
practices is based on the interpretation of the TWU documents and human rights values and principles. This is a
question of law that is concerned with human rights and not essentially educational matters.
The perception of the public regarding the religious beliefs of TWU graduates and the inference that those beliefs will
produce an unhealthy school environment have, in our view, very little to do, if anything, with the particular expertise
of the members of the BCCT
The evidence in this case is speculative, involving consideration of the potential future beliefs and conduct of
graduates from a teacher education program taught exclusively at TWU
More importantly, the Council is not particularly well equipped to determine the scope of freedom of religion and
conscience and to weigh these rights against the right to equality in the context of a pluralistic society
All this to say that even if it was open to the BCCT to base its decision on perception rather than evidence of actual
discrimination or of a real risk of discrimination, there is no reason to give any deference to that decision.
L’Hereux-Dube (Dissenting)
BCCT’s Jurisdiction
This appeal raises two administrative law issues: a threshold question of jurisdiction and a subsequent determination
of the appropriate standard of review of the BCCT's decision. On the question of jurisdiction, I agree with my
colleagues that s. 4 of the Teaching Profession Act, R.S.B.C. 1996, c. 449, confers jurisdiction on the BCCT to
consider discriminatory practices as part of its evaluation of TWU's application. In the words of Madam Justice
Rowles, at para. 200
Standard of Review
Applying Pushpanathan supports patent unreasonableness
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The first factor of privative clauses does not apply to this case, in which the other three factors, namely expertise;
[page823] what the purpose of the act as a whole and the provision in particular are; and whether the question at issue
is one of law or fact, all weigh in favour of patent
As the Supreme Court of British Columbia has recognized, the BCCT has "relative expertise in the area of setting
standards for admission into the teaching profession
The BCCT's decision concerning TWU's teacher education program goes to the heart of the Teaching Profession Act's
raison d'être and should only be disturbed by judges, who lack the specialized expertise of teachers, if it is patently
unreasonable
o The province cannot, in my view, be faulted for adopting the philosophy frequently applied in the courts of
the United States, namely, that 'The courtroom is simply not the best arena for the debate of issues of
educational policy and the measurement of educational quality'" (quoting LaForest)
There is a division of policy-making labour whereby the BCCT complements other policy-making bodies
The BCCT has wide discretion to review teacher training programs under the Act. Its decision was, moreover, a
polycentric one taking into account the educational interests of teachers, students, parents, and the public.
The BCCT's decision is also fact-based, concerning an issue the nature of which implicates the tribunal's expertise.
This feature addresses the fourth Pushpanathan factor, which asks whether the question addressed by the tribunal is
legal or factual
Determining how TWU's program may affect its graduates' preparedness to teach in the public schools is a factual
inquiry requiring the specialized expertise of the BCCT's members, the majority of whom have classroom experience.
The BCCT fulfills the role of gatekeeper to the profession of public school teaching and is responsible for ensuring
that its members meet the expertly determined requisites for qualifying to teach in the classrooms of the province
Statutory interpretation of the BCCT's "public interest" responsibilities should be purposive, not nebulous
The meaning of those words, neither precise nor unambiguous in themselves, must be construed in the context of the
statute in which they are found".
The BCCT is obligated by the Teaching Profession Act to assess any component of a teacher training program that
may affect "the education, professional responsibility and competence of its members".
It never found or considered TWU graduates to be "unworthy of fully participating in public activities", as my
colleagues imply (para. 35). To the contrary, the BCCT provided a route for these students to attain the requisites for
teaching in public schools. These actions are fully consistent with the College's contextualized mandate to establish
and implement standards for its members "having regard to the public interest".
The BCCT's decision employed one relevant and undisputed Charter or human rights value, that of equality, in the
narrow context of appraising the impact on the classroom environment of TWU's proposal. Equality is a central
component of the public interest that the BCCT is charged with protecting in the classrooms of the province
In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, the Court held at pp. 13-14 that "the
Constitution, as the supreme law, must be respected by an administrative tribunal called upon to interpret law".
The BCCT was not acting as a human rights tribunal and was not required to consider other Charter or human rights
values such as freedom of religion, which are not germane to the public interest in ensuring that teachers have the
requisites to foster supportive classroom environments in public schools. Thus, it is not relevant to the standard of
review that "the Council is not particularly well equipped to determine the scope of freedom of religion and
conscience and to weigh these rights against the right to equality in the context of a pluralistic society"
If the BCCT were to have applied a value that is clearly not an accepted Charter or human rights value, or one
irrelevant to the decision at hand, or if it failed to apply a clearly relevant value, then its decision would be patently
unreasonable. None of these scenarios occurred here.
The BCCT's expert attention to the classroom environment means that public school students' best interests, like those
of children in custody and access disputes, are the focal point. In neither situation should a religiously based risk fall
on children.
Whatever the religion of the institution or individual concerned, all candidates must satisfy the BCCT that they
possess the requisites for public school teaching. Indeed, if the BCCT had considered the respondents' religion in
making its decision, this would have been not only discriminatory, but also a jurisdictional error of law. The BCCT's
concern was with the impact on public school classrooms of a discriminatory practice; whether or not this practice is
based on religion was immaterial to their decision. The mandate of the BCCT to have regard for the public interest in
its accreditation of teachers requires such scrutiny of any discriminatory practice.
The freedom of religion of the prospective teacher is thus not implicated in this case at the administrative law stage.
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Canada (Attorney General) v. Mossop [1993] 1 SCR 554
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Lamer  Mossop was employed in Toronto as a translator for the Department of the Secretary of State. On June 3,
1985, Mossop attended the funeral of the father of the man whom Mossop described as his lover. Mossop testified
that the two men have known each other since 1974, and have resided together since 1976 in a jointly owned and
maintained home. They share the day-to-day developments in their lives and maintain a sexual relationship. Each has
made the other the beneficiary of his will. They are known to their friends and families as lovers.
At the time, Mossop's terms of employment were governed by a collective agreement between the Treasury Board and
the Canadian Union of Professional and Technical Employees
o The collective agreement allowed for up to four days bereavement leave for the death of a member of an
employee’s immediate family
The day after the funeral, Mossop applied for bereavement leave pursuant to art. 19.02 of the collective agreement.
The application was turned down, and Mossop declined to accept the day of special leave he was offered in its stead
only question submitted to this Court was whether, by specifically denying homosexual couples access to certain
benefits conferred on heterosexual couples, a union and the government had infringed the Canadian Human Rights
Act
There was no question of determining whether the government and the unions should or should not extend these types
of benefits to homosexual couples, nor of deciding whether Parliament when enacting the CHRA should have
prohibited discrimination on the basis of sexual orientation.
Also of great importance to the dynamics of the analysis in this case is the fact that none of the provisions of the
CHRA were challenged under the Charter. The question before this Court was thus strictly one of statutory
interpretation.
When Mr. Mossop was denied bereavement leave in June 1985, the CHRA did not prohibit discrimination on the
basis of sexual orientation.
o In my opinion, this fact is a highly relevant part of the context in which the phrase "family status" in the Act
must be interpreted
o It is interesting to note in this regard that there was a recommendation by the Canadian Human Rights
Commission that sexual orientation be made a prohibited ground of discrimination.
o Nevertheless, at the time of the 1983 amendments to the CHRA, no action was taken to implement this
recommendation.
It is thus clear that when Parliament added the phrase "family status" to the English version of the CHRA in 1983, it
refused at the same time to prohibit discrimination on the basis of sexual orientation in that Act. In my opinion, this
fact is determinative. I find it hard to see how Parliament can be deemed to have intended to cover the situation now
before the Court in the CHRA when we know that it specifically excluded sexual orientation from the list of
prohibited grounds of discrimination contained in the Act
While it may be argued that the discrimination here applies to homosexual couples through their familial relationship
or in their "family status" and does not apply to the sexual orientation of Mr. Mossop as an individual as such, I am
not persuaded by this distinction. I cannot conclude that by omitting sexual orientation from the list of prohibited
grounds of discrimination contained in the CHRA, Parliament intended to exclude from the scope of that Act only
discrimination on the basis of the sexual orientation of individuals. If such an interpretation were to be given to the
CHRA, the result would be somewhat surprising: while homosexuals who are not couples would receive no protection
under the Act, those who are would be protected.
I find that Parliament's clear intent throughout the CHRA, before and at the time of the amendment of 1983, was to
not extend to anyone protection from discrimination based on sexual orientation.
Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative
tribunals are not empowered to do anything else but to apply the law
But, I repeat, absent a Charter challenge, the Charter cannot be used as an interpretative tool to defeat the purpose of
the legislation or to give the legislation an effect Parliament clearly intended it not to have
LaForest  No one denies that the dominant conception of family is the traditional family
The appellant here argues that "family status" should cover a relationship dependent on a same-sex living
arrangement. While some may refer to such a relationship as a "family", I do not think it has yet reached that status in
the ordinary use of language. Still less was it the case when the statute was enacted.
The appellant's argument ultimately rests on the proposition that human rights statutes should be interpreted
"purposefully" so as to favour all disadvantaged groups. I agree that the statute should be interpreted generously with
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a view to effect its purpose. But this brings us back to the question whether the addition of the words "family status"
had as one of its legislative purposes the protection of persons living in the position of the appellant.
In sum, neither ordinary meaning, context, or purpose indicates a legislative intention to include same-sex couples
within "family status". I underline that the present case is not an action under the Canadian Charter of Rights and
Freedoms where the Court may review the actions of Parliament or the government, and I would refrain from saying
anything about the issues such an action might raise.
L’Hereux-Dube (dissenting)  The Tribunal has the jurisdiction and expertise necessary to interpret the grounds of
discrimination set out in its own legislation, and accordingly, unless its interpretation of the scope of "family status" is
patently unreasonable, deference should be shown and the Court should not interfere. The question of whether or not
discrimination is in fact made out is also a matter lying at the heart of the Tribunal's jurisdiction. Again, unless the
Tribunal has made a patently unreasonable finding in arriving at that conclusion, it is entitled to deference.
It is well established in the jurisprudence of this Court that human rights legislation has a unique quasi-constitutional
nature, and that it is to be given a large, purposive and liberal interpretation
The purpose of the Act, set out in s. 2 recited earlier, is to ensure that people have an equal opportunity to make for
themselves the life that they are able and wish to have without being hindered by discriminatory practices.
The Act, in prohibiting certain forms of discrimination, has the express purpose of promoting the value of equality
which lies at the centre of a free and democratic society
It was argued that a correct interpretive approach would warrant that a textual interpretation be determinative, and that
the coupling of the terms "family" and "status" in the English text of s. 3 of the Act required the Tribunal to construe
"family status" as including only those families who have recognizable status at law
o Leaving aside for the moment the broad and purposive approach which, in my view, should guide the
interpretation of human rights legislation, even if one were to take a textual approach to the interpretation of s.
3 of the Act, the result of such an interpretive exercise would not lead to the conclusions of the Court of
Appeal, but rather would, in my view, support the Tribunal's findings.
o First, the word "status" is capable of bearing several meanings
o A textual interpretation seems to me to support the conclusion of the Tribunal that "family status" should not
be restricted to a narrow legal meaning. Nothing in the textual context indicates that the protection of the Act
is to be extended only to certain types of legally validated families. On the contrary, the term "family status"
suggests a broader protection that would prohibit discrimination against individuals on the basis of the
internal structuring of their families. But, as I said above, a strict textual interpretation is not warranted here.
That leaves then the argument concerning legislative intent
the ""Intention of the Legislature" is a common but very slippery phrase". Legislative intention can be difficult to
ascertain, and it is dangerous to rely only on the legislative record in order to infer that intent. While such record may
be of some assistance in certain types of cases (for example Re Anti-Inflation Act, [1976] 2 S.C.R. 373), legislative
intent is derived primarily from the legislation itself
With this caveat, had Parliament intended that the protection for families be restricted to legally recognized families,
the amendment to the Act could have made this clear. However, this was not done.
It was, of course, open to Parliament to define the concept of "family status" within the [page620] Act. It did not
choose to do so, even in the face of debate about the meaning of the term. Instead, Parliament determined that the task
of dealing with any ambiguity in any concepts in the Act should be left to the administrative board charged with the
task of implementing the Act.
o "It will be up to the commission, the tribunals it appoints, and in the final cases, the courts, to ascertain in a
given case the meaning to be given to these concepts."
the decision to leave the term undefined is evidence of clear legislative intent that the meaning of "family status", like
the meaning of other undefined concepts in the Act, be left for the Commission and its tribunals to define. In my view,
if the legislative record helps here in the search for legislative intent, it rather supports the Tribunal's wide and
[page621] broad discretion in the interpretation of the provisions of its own Act.
Because legislation can be amended more readily than a Constitution, legislatures which find the interpretations given
by administrative tribunals inconsistent with legislative intent can always amend the legislation, or pass new
legislation in order to modify that interpretation.
Human rights codes are documents that embody fundamental principles, but which permit the understanding and
application of these principles to change over time. These codes leave ample scope for interpretation by those charged
with that task.
The traditional conception of family is not the only conception.
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The multiplicity of definitions and approaches to the family illustrates clearly that there is no consensus as to the
boundaries of family, and that "family status" may not have a sole meaning, but rather may have varied meanings
depending on the context or purpose for which the definition is desired. This same diversity in definition can be seen
in a review of Canadian legislation affecting the "family".
The Tribunal, of course, was not concerned here with the definition of "spouse" but rather with "family status" in the
particular context of an employee benefit.
While it is arguable that the "traditional family" has an ideological stronghold, it is clear that a large number of
Canadians do not live within traditional families.
In defining the scope of the protection for "family status", the Tribunal considered it essential not only to look at
families in the traditional sense, but also to consider the values that lie at the base of our support for families. To look
beyond the specific forms a family might take is to ask what value one sees in the family and what lies at the base of
society's desire to recognize and support families.
Given the range of human preferences and possibilities, it is not unreasonable to conclude that families may take
many forms. It is important to recognize that there are differences which separate as well as commonalities which
bind. The differences should not be ignored, but neither should they be used to de-legitimize those families that are
thought to be different
On the evidence before it and in the context of the Act, the Tribunal concluded that the potential scope of the term
"family status" is broad enough that it does not prima facie exclude same-sex couples. In making this finding, the
Tribunal used the proper interpretational approach and considered the purpose of the Act and the values at the base of
the protection of families.
The Tribunal did not ignore the difficulties involved in finding a practical and reasonable definition which could be
applied to determine whether or not "family status" would apply in the matter before them
The Tribunal concluded that the specific relationship before it was one which, on the evidence, could come within the
scope of "family status". In accordance with the principles of curial deference enunciated at the outset, the Tribunal's
findings of fact are unassailable except in the face of a patently unreasonable error.
The Attorney General also argued that the Tribunal erred in finding discrimination on the basis of "family status",
rather than based on sexual orientation, a ground not found in s. 3 of the Act
o This argument is based on an underlying assumption that the grounds of "family status" and "sexual
orientation" are mutually exclusive. However, categories of discrimination often overlap in significant
measure. In this instance, the Tribunal found that Mr. Mossop suffered discrimination on the basis of his
"family status", not on the basis of his sexual orientation. However, the argument that this is more properly
seen as sexual orientation discrimination raises an important question which in some cases, though not here in
my view, may be determinative of the scope of human rights protection.
It is increasingly recognized that categories of discrimination may overlap, and that individuals may suffer historical
exclusion on the basis of both race and gender, age and physical handicap, or some other combination
Discrimination may be experienced on many grounds, and where this is the case, it is not really meaningful to assert
that it is one or the other. It may be more realistic to recognize that both forms of discrimination may be present and
intersect. On a practical level, where both forms of discrimination are prohibited, one can ignore the complexity of the
interaction, and characterize the discrimination as of one type or the other. The person is protected from
discrimination in either event
However, though multiple levels of discrimination may exist, multiple levels of protection may not. There are
situations where a person suffers discrimination on more than one ground, but where only one form of discrimination
is a prohibited ground. When faced with such situations, one should be cautious not to characterize the discrimination
so as to deprive the person of any protection
In this case, since the effect of the collective agreement is to deprive all same-sex couples of the bereavement benefit,
sexual orientation may appear to be the ground of discrimination. However, in my opinion, though sexual orientation
may appear to be an issue, the central focus is "family status". The Tribunal found that the denial of the benefit was
clearly linked to Mr. Mossop's family situation. Mr. Mossop was denied the bereavement benefit precisely because of
the "family" nature of his relationship with Mr. Popert
Sopinka concurred with Lamer, and Iacobucci concurred with Lamer and Laforest, Cory and McLachlin
concurred with L’Hereux-Dube
Nanaimo (City) v Rascal Trucking Ltd. [2000] 1 SCR 342
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The respondent company leased a parcel of land located within the appellant city. The city granted a permit to the
company to deposit 15,000 cubic yards of soil on its site to conduct soil processing operations. Neighbouring
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residents complained about dust and noise emissions and a city inspector recommended that the soil be removed. The
city council passed resolutions declaring the pile of soil a nuisance pursuant to s. 936 of the Municipal Act and
ordered the company and its lessor to remove it. The company and its lessor failed to comply. The city brought a
petition for a declaration that it was entitled to access the property and remove the pile of soil. The petition was
granted. The company and its lessor unsuccessfully brought a second petition requesting that the resolutions be
quashed. The Court of Appeal allowed the company's appeal and quashed both resolutions and both court orders.
Did s. 936 of the Municipal Act Empower the Appellant to Pass the Resolutions Declaring the Pile of Soil a
Nuisance and Ordering Its Removal?
The respondent argued that this Court should not subscribe a priori to either a benevolent or strict approach, but rather
seek to discern the "true [page351] intent" of s. 936. In the respondent's submission, such an analysis, aided by the
ejusdem generis or limited class rule, forces the conclusion that s. 936 empowered Nanaimo to address only two
classes of potential nuisance -- constructed things and things associated with the handling, transit, or storage of water.
To ascribe greater meaning to the phrase "or other matter or thing" it was said would run contrary to the intent of
listing specific items before it, as well as deprive those words of meaning. In light of the specific items enumerated,
the respondent company said it would be anomalous to conclude that reference to "or other matter or thing" permits a
municipality to, in effect, declare anything to be a nuisance
There is ample authority, on the interpretation of statutes generally and of municipal statutes specifically, to support a
broad and purposive approach
A court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a
municipality has been empowere to pass a certain by-law (from R v Greenbaum)
It is my opinion that the legislature, by including the phrase "or other matter or thing", did not intend to expand the
scope of s. 936 to allow municipalities to declare almost anything to be a nuisance. I accept the respondent's
submission that to construe that phrase as creating a third class of potential nuisance would effectively negate the
purpose of including rather specific preceding language
It is not reasonable to believe that the legislature intended to subscribe such importance to the missing comma,
namely that such minor punctuation should render null the specific items listed before.
It should also be noted that s. 932 of the Municipal Act (now s. 725) gave municipalities the authority to address
nuisances, broadly defined, through duly passed by-laws. Under the Act, the procedure established to pass a by-law is
more onerous and time consuming than that required to pass a resolution. Were reference to "or other matter or thing"
interpreted to govern nuisances generally, s. 936 would necessarily encompass those nuisances addressed by s. 932.
Section 932 would, in practice, be redundant
The fact that s. 936 empowers municipalities to declare only two classes of thing to be a nuisance does not foreclose
the possibility that a pile of soil may fall within one of those categories. It is clear that a pile of soil does not fall
within any of the water-related items constituting the second class. However, does a pile of soil fall within the first
class of constructed or erected things? Specifically, does it fall within the phrase "building, structure or erection of any
kind"? I conclude that it does. A pile of soil does not materialize on its own. It must at least be erected presumably by
piling or dumping. As well, a pile of soil clearly may be a "hazardous erection" within the wording of s. 936's
heading, either in the sense of reducing air quality [page354] through dust pollution, or by posing a serious risk to
curious children.
an absurdity would result if s. 936 did not extend to a pile of soil. It would mean a building, structure or pond could be
declared a nuisance, but the soil excavated to create them could not
It is my opinion that s. 936 empowered the appellant to issue resolutions declaring Rascal's pile of soil a nuisance and
ordering its removal. As a result of that conclusion the second question requires review
Reasonableness
Canada (Director of Investigations and Research) v Southam Inc. [1997] 1 SCR 748
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Application of the Standard
The question, then, is whether the Tribunal acted unreasonably when it decided that Southam's daily newspapers and
community newspapers are in different product markets. I conclude that it did not
as I have already noted, the weighing of criteria in a balancing test must be largely a matter of discretion. The very
purpose of a multi-factored test, such as the one that the Tribunal used to determine the dimensions of the relevant
product market, is to permit triers of fact to do justice in diverse particular cases
The question therefore must be whether the Tribunal's attention to functional interchangeability was reasonable on the
facts of this case.
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For my part, I cannot say that the Tribunal acted unreasonably to discount the evidence of functional
interchangeability. It had its reasons for doing so, and those reasons cannot be said to be without foundation or logical
coherence. In particular, the Tribunal seems to have thought that daily newspapers and community newspapers serve
different purposes.
It is reasonable, if only reasonable, to suppose that advertisers are sufficiently discerning about the media they employ
that they are unlikely to respond to changes in the relative prices of the two kinds of newspaper by taking their
business from the one to the other. Fortunately for the Tribunal, its decision need only be reasonable and not
necessarily correct.
However, that does not finish the matter. The Federal Court of Appeal had two other difficulties with the Tribunal's
approach, and they appear to go to the reasoning that underlies the Tribunal's conclusion. The first is that it is
inconsistent to lump together daily newspapers and community newspapers for purposes of distinguishing them from
broadcast media but then to separate the two kinds of newspapers for purposes of distinguishing them from one
another. The second is that the Tribunal's conclusion confuses geographical scope with purpose. Both alleged
difficulties turn out on closer inspection not to be troubling
It is perfectly consistent to distinguish between the broadcast media and the print media on one ground and to
distinguish further between two kinds of print media on another ground. Broadcasters attract advertisers who want to
convey an "image". See the Tribunal's decision at p. 221. Newspapers attract advertisers who want to convey a great
deal of specific information about a variety of products all at once. Accordingly, the two kinds of media serve
different markets. However, from the fact that newspapers in general serve a certain broad class of advertiser, it does
not follow that all newspapers serve precisely the same particular advertisers, or the same relevant advertising
markets. Further division of the market is possible.
These markets are at least possibly, and therefore reasonably, different
Consequently it is unhelpful to suggest that once a purpose has been identified, all those products that serve that
purpose should be considered to fall within a single market. It is the correct or relevant purpose that must be found,
which is to say the broadest purpose that is consistent with a high cross-elasticity of demand.
Consequently, in order to choose the relevant purpose, the adjudicator must possess in advance some idea about the
behaviour of consumers. In this way, the purpose inquiry is a little circular. Tribunals inquire into purpose in order to
get a grip on the tendency of consumers to substitute one product for another, but they will not hit on the right purpose
unless they already have a notion of what consumers will substitute for what
Purpose is at least, in part, a matter of intention and so is at least, in part, "subjective". Presumably, almost any object
can be put to a multitude of uses. An axe handle, for example, can serve as a bludgeon or as an axe handle. The
purpose it serves depends on the intention of the person in whose hand it is.
But in order to exclude those purposes and settle on the relevant ones, the Tribunal had to consider, at least implicitly,
the intentions of the users of the two kinds of newspaper
Reaching consumers throughout a large region is one purpose. Reaching consumers in a neighbourhood is another
purpose. It does not matter that the difference between them is in the intention of the advertiser. Intention is a
component of purpose. Of course, "objective" considerations also play a part
The Federal Court of Appeal also found fault with the Tribunal's treatment of evidence that Southam regarded the
community newspapers as its chief competitors.
It is possible that if I were deciding this case de novo, I might not dismiss so readily as the Tribunal did what is
admittedly weighty evidence of inter-industry competition. In my view, it is very revealing that Southam's own
expert, an American newspaper consultant, identified the community newspapers as the source of Southam's
difficulties in the Lower Mainland
The Tribunal explained that, in its view, Southam was mistaken about who its competitors were; and though I may not
consider that reason compelling, I cannot say that it is not a reason for which there is a logical and evidentiary
underpinning.
It is possible that the members may occasionally have lost sight of the ultimate inquiry, which is whether the
acquisition of the community newspapers by Southam substantially lessened competition. But again, I cannot say that
the Tribunal's approach was unreasonable.
I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked
upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when
the reviewer him- or herself would have come to a conclusion opposite to the tribunal's. Appellate courts must resist
such temptations. My statement that I might not have come to the same conclusion as the Tribunal should not be taken
as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such
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intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system
of judicial review is to be fashioned.
Accordingly, the Tribunal's conclusion must stand.
I agree with the Federal Court of Appeal that the remedy settled upon by the Tribunal should be allowed to stand.
Mergers themselves are not considered to be objectionable except in so far as they produce a substantial lessening of
competition. Therefore, restoration to the pre-merger situation is not what is wanted. Indeed, presumably some
lessening of competition following a merger is tolerated, because the Act proscribes only a substantial lessening of
competition
It hardly needs arguing that the appropriate remedy for a substantial lessening of competition is to restore competition
to the point at which it can no longer be said to be substantially less than it was before the merger
I can think of only two reasons why the test should be more forgiving where the parties have consented to a remedy.
The first is that parties who have not consented should be punished for their obduracy. The second, which is related to
the first, is that the law should provide parties with an incentive to come to a consensual arrangement. Neither reason
is valid on closer analysis. The burden of a harsh standard falls entirely on one of the parties: the company. No
punishment falls on the Director when he or she is obdurate, and the harsh standard gives him or her no incentive to
consent to a remedy. Therefore, even if there is a policy of encouraging consent and punishing obduracy, it is not well
served by the imposition of a more stringent standard in cases in which the parties have not consented. The better
approach is to apply the same standard in contested proceedings as in consent proceedings.
The Tribunal's choice of remedy is a matter of mixed law and fact. The question whether a particular remedy
eliminates the substantial lessening of competition is a matter of the application of a legal standard to a particular set
of facts. Therefore, for reasons I have already given, the Tribunal's decision must be reviewed according to a standard
of reasonableness
Because the Tribunal did not decide unreasonably when it decided that Southam's proposed remedy would not be
effective, its decision should be allowed to stand.
The appellants' other objections to the remedy are unconvincing. The remedy is not punitive, because the Tribunal
found that it was the only effective remedy. If the choice is between a remedy that goes farther than is strictly
necessary to restore competition to an acceptable level and a remedy that does not go far enough even to reach the
acceptable level, then surely the former option must be preferred. At the very least, a remedy must be effective. If the
least intrusive of the possible effective remedies overshoots the mark, that is perhaps unfortunate but, from a legal
point of view, such a remedy is not defective.
Chamberlain v. Surrey School District No. 36 [2002] 4 SCR 710
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McLachlin (+5) Board passed a resolution refusing to authorize three books for classroom instruction on the ground
that they depicted families in which both parents were either women or men -- "same-sex parented families". The
question on this appeal is whether that resolution was valid. The appellants have challenged the resolution on two
grounds: first, that the Board acted outside its mandate under the School Act, R.S.B.C. 1996, c. 412 , and second, that
the resolution violates the Canadian Charter of Rights and Freedoms
I conclude that the resolution must be set aside on the first ground.
o The Board acted outside the mandate of the School Act by failing to apply the criteria required by the Act and
by the Board's own regulation for approval of supplementary material
The appropriate standard of Review
In my view, the usual manner of review under the pragmatic and functional approach is necessary. It is now settled
that all judicial review of administrative decisions should be premised on a standard of review arrived at through
consideration of the factors stipulated by the functional and pragmatic approach
The pragmatic and functional approach applicable to judicial review allows for three standards of review: correctness,
patent unreasonableness and an intermediate standard of reasonableness
o The standard of "correctness" involves minimal deference: where it applies, there is only one right answer and
the administrative body's decision must reflect it.
o "Patent unreasonableness", the most deferential standard, permits the decision to stand unless it suffers from a
defect that is immediately apparent or is so obvious that it "demands intervention by the court upon review":
o The intermediate standard of "reasonableness" allows for somewhat more deference: the decision will not be
set aside unless it is based on an error or is "not supported by any reasons that can stand up to a somewhat
probing examination"
Which of the three standards is appropriate in a given case depends on the amount of discretion the legislature
conferred on the delegate. The relevant amount of discretion is evidenced by four factors, which often overlap: (1)
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whether the legislation contains a privative clause; (2) the delegate's relative expertise; (3) the purpose of the
particular provision and the legislation as a whole; and (4) the nature of the problem
In this case, my colleague and I agree that the four factors point to reasonableness as the appropriate standard of
review
o First, the School Act contains no privative clause or a legislative direction to the courts to defer to the
decisions of school boards. This is consistent with a less deferential standard of review.
 However, this is only one factor, and does not imply a high standard of scrutiny where other
[page725] factors point to greater deference
o The second factor, the Board's relative expertise, raises competing considerations. It requires us to ask: who is
better placed to make the decision, the Board or the court?
 And since what matters is expertise relative to the specific problem before the Board, we must
consider the nature of the problem before the Board:
 The problem before the Board has two aspects. On the one hand, it requires the Board to balance the
interests of different groups, such as parents with widely differing moral outlooks, and children from
many types of families.
 On this aspect, the Board has considerable expertise. As elected representatives, it is their job
to bring community views into the educational decision-making process. The Board is better
placed to understand community concerns than the court
 On the other hand, the decision of whether to approve the three books has a human rights dimension
 Courts are well placed to resolve human rights issues. Hence, where the decision to be made
by an administrative body has a human rights dimension, this has generally lessened the
amount of deference which the Court is willing to accord the decision
 the extent to which deference is lessened by the presence of a human rights issue will vary
from case to case.
o The relevant question should always be whether the courts have an expertise equal to
or better than that of the board, relative to the particular human rights issue that is
faced.
o The third factor is the purpose for which the legislature granted the Board authority to approve supplementary
learning materials. Here the purpose was to allow for local input on choosing supplementary classroom
materials
 This deference is tempered, however, by the School Act's requirement that the discretion to approve
supplementary materials conform to norms of tolerance, respect for diversity, mutual understanding
and acceptance of all the family models found in British Columbian society and its schools.
o The fourth factor, the nature of the problem, again negates the suggestion that the courts should accord high
deference to the Board's decision
 This is a case requiring the Board to determine how to accommodate the concerns of some members
of the community in the context of a broader program of tolerance and respect for diversity. This
question attracts court supervision and militates in favour of a stricter standard.
o The four factors, taken together, point to the intermediate standard of reasonableness . The Board is a political
body and a proxy for parents and local community members in making decisions and has been granted a
degree of choice on which the legislature has conferred a circumscribed role in approving books. However,
the deference that might be warranted by these factors, standing alone, is undercut by clear commitment of the
legislature and the Minister to promoting tolerance and respect for diversity
The Policy of the School Act and Curriculum and the Board’s Role
The School Act's insistence on secularism and non-discrimination lies at the heart of this case
The Act's insistence on strict secularism does not mean that religious concerns have no place in the deliberations and
decisions of the Board
What secularism does rule out, however, is any attempt to use the religious views of one part of the community to
exclude from consideration the values of other members of the community
Religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude
the concerns of the minority group
The School Act's emphasis on secularism reflects the fact that Canada is a diverse and multicultural society, bound
together by the values of accommodation, tolerance and respect for diversity
In summary, the Act's requirement of strict secularism means that the Board must conduct its deliberations on all
matters, including the approval of supplementary resources, in a manner that respects the views of all members of the
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school community. It cannot prefer the religious views of some people in its district to the views of other segments of
the community
It is true that, like legislatures and municipal councils, school boards are elected bodies, endowed with rule-making
and decision-making powers through which they are intended to further the interests of their constituents.
o However, school boards possess only those powers their statute confers on them. Here the Act makes it clear
that the Board does not possess the same degree of autonomy as a legislature or a municipal council.
o It must act in a strictly secular manner. It must foster an atmosphere of tolerance and respect.
o It must not allow itself to be dominated by one religious or moral point of view, but must respect a diversity
of views
This emphasis on parental involvement comes at the stage of selecting materials to be used in particular classes, after
they have been approved for general use by the board.
Moreover, although parental involvement is important, it cannot come at the expense of respect for the values and
practices of all members of the school community
o The requirement of secularism in s. 76 of the School Act, the emphasis on tolerance in the preamble, and the
insistence of the curriculum on increasing awareness of a broad array of family types, all show, in my view,
that parental concerns must be accommodated in a way that respects diversity.
o Parental views, however important, cannot override the imperative placed upon the British Columbia public
schools to mirror the diversity of the community and teach tolerance and understanding of difference.
The Scheme for Supplementary Resources
The School Act confers on the Minister the power to approve basic educational resource materials to be used in
teaching the curriculum, and confers on school boards the authority to approve supplementary educational resource
material, subject to ministerial direction:
The purpose of supplementary learning resources is to enrich the educational experience in ways appropriate to the
school community. It should be emphasized that approved supplementary materials are not required to be used in
every classroom. Rather, the goal is to provide a range of materials from which teachers may choose to enrich the
learning experience
It is therefore clear that the B.C. curriculum for the K-1 level contemplated discussion of all family types, including
same-sex parented families. The exclusion of any particular type of family was contrary to the ministerial direction as
embodied in the curriculum
In summary, the Board was required to act in accordance with the Act and its own regulation. This meant that the
Board was required to do three things:
o (i) to operate in a strictly secular manner, not allowing the concerns of one group of parents to deny equal
recognition to the family models of other members of the school community
o (ii) to act in accordance with its own general regulation requiring that supplementary materials be relevant to
the learning objectives, appropriate to the age, maturity and learning needs of the students, fair and free from
discrimination, and readable, interesting and manageable in the teaching situation; and
o (iii) to apply the criteria for supplemental resources indicated by the curriculum goals for K-1 students, which
included the objectives of permitting all K-1 students to discuss their particular family models in class, and of
making all students aware of the broad array of family models that exist in our society.
Judgment considers a letter written by the Superintendent who advised against adding the books to the curriculum 
It (the letter) reveals a particular interpretation of the School [page741] Act and curriculum.
o First, it equates homosexuality and same-sex parented families and suggests that because of the controversial
nature of these subjects, the legislature and Minister could not be taken to have intended them to be discussed,
absent express language so requiring.
o Second, it applies a criterion of necessity.
o Third, it expresses a concern with maintaining the right of parents to be the primary educators of K-1
children.
o Fourth, it expresses a concern that approval of the books would engender controversy in light of parents'
views and might undermine the relationship between home and school
What the Superintendent and the Board did not consider is as telling as what they did consider.
o The Superintendent's statement does not refer to the absence of restriction on the curriculum's direction to
discuss different family types.
o It does not refer to the emphasis in the School Act and curriculum on tolerance, respect, inclusion and
understanding of social and family diversity.
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And it does not refer to the secular nature of the public school system and its mandate to provide a nurturing
and validating learning experience for all children, regardless of the types of families they come from.
The chambers judge found that parental concern over the portrayal of same-sex parented families in the K-1
classroom was the overarching consideration in the Board's decision not to approve the books.
o She concluded that the Board's decision was based on concerns that the books would conflict with some
parents' views on same-sex relationships
o Most of the parents concerns were based on two arguments
 Would raise issues that would lead to difficult discussions at home
 Would raise issues that would be counter to views expressed at home
In summary the resolution declining to approve the books was made without inquiring into the relevance of the books
to the curriculum, and without asking whether there was a realistic possibility that there were, or would soon be,
children from same-sex parented families in the school district whose family models would be discussed under the K1 curriculum.
o The Board's position was simply that material depicting same-sex parented families should not be made
available to children at the K-1 level.
o The reasons advanced for this position were: that the material was not necessary to achieve the required
learning outcomes; that the books were controversial; that objecting parents' views must be respected; that
children at the K-1 level should not be exposed to ideas that might conflict with the beliefs of their parents;
and, that children of this age were too young to learn about same-sex parented families.
o Behind all these considerations hovered the moral and religious concerns of some parents and the Board with
the morality of homosexual relationships
Application of the Standard to the Impugned Decision
the Board's decision will be unreasonable if the Board proceeded in a manner that took it outside the constraints
intended by the legislature. In my view, the Board's decision was unreasonable in this sense.
We have seen that the Board was required to exercise its power to approve or reject supplementary classroom
resources in a manner that accorded with:
o (1) the secular mandate of the Act;
o (2) the regulation which the Board had put in place pursuant to Ministerial Order; and
o (3) the factors required to be considered by the Act, including the desired learning outcome for K-1 students
found in the curriculum.
The Board's first error was to violate the principles of secularism and tolerance in s. 76 of the School Act. Instead of
proceeding on the basis of respect for all types of families, the Superintendent and the Board proceeded on an
exclusionary philosophy. They acted on the concern of certain parents about the morality of same-sex relationships,
without considering the interest of same-sex parented families and the children who belong to them in receiving equal
recognition and respect in the school system.
the fact that some parents and Board members may have been motivated by religious views is of no moment. What
matters is whether the Board's decision was unreasonable in the context of the educational scheme mandated by the
legislature.
The Board's second error was to depart from the regulation it had made pursuant to Ministerial Order as to how
decisions on supplementary resources should be made.
o The Board's regulation required it to consider whether a proposed resource is "appropriate for the particular
community in which it will be used", and recognized the existence of diverse communities within the School
District and the Board's duty to approach the needs of each with respect and tolerance.
o Contrary to this requirement, the Board gave no consideration to the needs of children of same-sex parented
families and instead based its decision on the views of a particular group who were opposed to any depiction
of same-sex relationships in K-1 school materials.
This brings us to the Board's third error -- its application of the wrong criteria.
o The Board either ignored or mistook the requirements of the School Act and the learning outcomes of the
curriculum.
o The curriculum states that children at the K-1 level should be able to discuss their family models, whatever
these may be, and that all children should be made aware of the diversity of family models that exist in our
society.
o The Board did not consider this objective.
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Indeed, the Superintendent, whose views appear to have guided the Board, took the view that unless the
curriculum expressly required that same-sex parented families should be discussed, the Board need not
inquire into the relevance or suitability of the books as learning resources.
o This was an erroneous interpretation of the School Act and the Ministerial Orders, as well as of the Board's
own general regulation on selection criteria.
Instead of applying the proper criteria, the Superintendent and the Board erroneously applied a criterion of necessity
and justified their decision on the basis that discussion of same-sex parented families would send divergent messages
and thus induce "cognitive dissonance", and that such discussion was not age appropriate for K-1 children.
I turn first to necessity.
o To require that supplementary resources be necessary is to misunderstand their function. If a given resource
were necessary, one would expect to find it among the materials required for use in all classrooms.
o The purpose of allowing a school board to approve supplementary materials is to enable different
communities to enrich the learning experience by bringing in extra materials of relevance, above and beyond
the materials that are strictly necessary for the implementation of the curriculum.
o Instead of necessity, the Board should have considered relevance.
The argument based on cognitive dissonance essentially asserts that children should not be exposed to information
and ideas with which their parents disagree. This claim stands in tension with the curriculum's objective of promoting
an understanding of all types of families.
The number of different family models in the community means that some children will inevitably come from
families of which certain parents disapprove.
o Giving these children an opportunity to discuss their family models may expose other children to some
cognitive dissonance. But such dissonance is neither avoidable nor noxious.
o Children encounter it every day in the public school system as members of a diverse student body.
Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself
involves.
o As my colleague points out, the demand for tolerance cannot be interpreted as the demand to approve of
another person's beliefs or practices. When we ask people to be tolerant of others, we do not ask them to
abandon their personal convictions.
o We merely ask them to respect the rights, values and ways of being of those who may not share those
convictions.
o The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on
the belief that they have a claim to equal respect regardless of whether they are right.
The Board's concern with age-appropriateness was similarly misplaced
The Board did not suggest that the manner in which the books treated the approved subject was age-inappropriate
o Without prejudging the issue, this message of respectful tolerance appears to correspond to the intended
purpose of the K-1 curriculum and does not seem to venture further into biology and morality than is
contemplated by the curriculum
it is hard to see how the materials will raise questions which would not in any event be raised by the acknowledged
existence of same-sex parented families in the K-1 parent population, or in the broader world in which these children
live. The only additional message of the materials appears to be the message of tolerance. Tolerance is always ageappropriate.
The Board's final argument is that its decision cannot be attacked because it was not obliged to approve any particular
supplementary materials. It is true that the Board is not obliged to approve every supplementary resource that it is
presented with. It can reject supplementary materials -- even supplementary materials that are relevant to the
curriculum -- if it does so on valid grounds, such as excessive level of difficulty, discriminatory content, inaccuracy,
ineffectiveness, or availability of other materials to achieve the same goals. Had the Board proceeded as required by
the Act, the curriculum and its own general regulation, its decision might have been unassailable. The difficulty is that
the Board did not do so here.
I conclude that the Board's decision is unreasonable.
o It failed to proceed as required by the secular mandate of the School Act by letting the religious views of a
certain part of the community trump the need to show equal respect for the values of other members of the
community
o It failed to proceed according to its own Ministry-mandated regulation which required tolerance and
furtherance of prescribed curriculum learning outcomes.
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Finally, it failed to apply the appropriate criteria for approving supplementary learning resources and instead
applied inappropriate criteria.
o These errors went to the heart of the Board's decision
o I conclude that the Board's decision not to approve the proposed books depicting same-sex parented families
was unreasonable because the Board failed to act in accordance with the School Act.
Gonthier (Bastarache (Dissenting))  Other cases of this Court have reiterated the paramount parental role by
construing the nature of the authority schools and teachers have over children as a "delegated authority":
The notion of a school's authority being "delegated", if it permits the parental control response of removing a child
from the public school system, also entails that parents must be guaranteed the role of having input with regard to the
values which their children will receive in school. This is generally brought about by electing representatives who will
develop consensus and govern on matters pertaining to public education, which may occur at the provincial level and
at the local level
At the subsidiary local school board level, parents participate directly by electing local school board trustees
I agree with the Chief Justice that the standard of review is to be established upon a consideration of the factors under
the pragmatic and functional approach and the appropriate standard of review in this case is reasonableness.
o First, the absence of a privative clause or a legislative direction to defer to the school boards, while consistent
with a less deferential standard of review, should be considered in light of the corresponding absence of a
clause expressly allowing the decisions of the Board to be appealed before the courts and should not be given
undue weight when an administrative decision maker, rather than an adjudicative body, is concerned.
o Second, the decision to approve the books or not requires the Board to balance the interests of different
groups, a function which falls within its core area of expertise as a locally elected representative body.
As the Chief Justice points out, however, the decision also has a significant human rights dimension. This Court has
recognized that such decisions ought to be treated with less deference, as the courts have primary expertise in
interpreting and applying human rights instruments and balancing fundamental rights claims
In my view, the pragmatic and functional analysis was and is meant to be contextual in nature, and specific factors
considered in previous cases, such as the presence of a human rights component, should not be looked at in isolation
Third, I agree with the Chief Justice that the purpose for which the legislature granted the Board authority to approve
supplementary learning materials was to allow for local input in choosing such materials, and that such purpose
should be accorded appropriate weight.
Finally, as mentioned above, the nature of the problem does not involve the strict application of legal rules or the
interpretation of law, but a highly contextual and polycentric analysis. Thus, while, as will be explained below, I
believe the Board's decision to be justified under a reasonableness standard, it is also my view that the foregoing
considerations should inform this Court's examination of this decision.
I am of the view that the decision of the School Board was clearly a reasonable one
Were such materials approved at the provincial level, any teacher in any school district in British Columbia could, at
his or her discretion, employ the materials.
o In the absence of provincially approved materials, however, individual communities are empowered, by the
operation of the School Act, to approve or not approve resource materials.
o Perhaps some parents, as their collective will manifests in the decisions of their elected school trustees, might
answer the above question in the affirmative.
o Other parents may be of the view that this subject matter is too complicated, too "controversial", too far
removed and different from their life experiences, too confusing, for children of the tender years of five and
six.
o This parental view will yield a negative response to the above question
The School Board was clearly caught between two vocal and passionate sides in this dispute. As was discussed above,
accommodation is the overarching factor in the case at bar. Clearly, this case involves competing interests: those of
parents in same-sex relationships and certain teachers, such as Mr. Chamberlain, who desire to have books portraying
parents in same-sex relationships employed in K-1, and those of parents who are concerned about the use of such
material in classrooms with children of such a young age.
o I am of the view, on these facts, that while it would not have been unconstitutional to approve the Three
Books for use as educational resources, it is similarly not unconstitutional not to approve the books.
o The Charter does not demand that five- and six-year-olds be exposed to parents in same-sex relationships
within a dimension of a school curriculum. Nor, explicitly, does the curriculum itself
The moral status of same-sex relationships is controversial: to say otherwise is to ignore the reality of competing
beliefs which led to this case.
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This moral debate, however, is clearly distinct from the very clear proposition that no persons are to be
discriminated against on the basis of sexual orientation.
o The appellants, using the courts, seek to make this controversial moral issue uncontroversial by saying that s.
15 and "Charter values" are required to eradicate moral beliefs, because the hypothesis is that possible future
acts of discrimination are likely to emanate from such beliefs.
o This is not, however, necessarily true.
The "controversy" or parental concern to which the School Board was responding when it decided to not approve the
Three Books revolves, in my view, around two factors:
o (1) the nature of the portrayal of same-sex parents in the Three Books; and
o (2) the capacity of K-1 age students to interpret this portrayal.
It is clear that the books have normative content, but the question is what content is perceived by five- and six-yearolds, a determination which must be addressed from the perspective of parents, who are the arbiters of such a question
I note finally that judicial review as to constitutionality is about what is essential, constitutionally mandated, rather
than what may or may not be desirable as a matter of educational policy or personal preference. This case is not about
whether or not this Court thinks that it would be preferable, as a pedagogical question, that the Three Books be
approved
Since a school board is not a court or tribunal, it does not give detailed reasons to support the decisions in its
resolutions. When facing a school board decision, courts are thus forced to read into what went on, with some
speculation. Much of the justifying provided has clearly benefited from such hindsight. It has been established,
however, that the Board was generally motivated by concerns related to age appropriateness and parental concern.
As developed at length above, it is well established in Canadian law that parents have the primary authority and
responsibility for the moral and religious education of their children, and that responsibility is then delegated to
teachers, administrators and schools: the state's interest is secondary.
o In the context of the case at bar, the School Board is an instrument by which, in the absence of an already
clearly developed consensus at the provincial level (whether pertaining to curriculum subject matter or to
education resource materials), consensus is developed locally, a reflection of what parents deem is in their
children's best interests.
This understanding of shared authority, in my view, is clearly inherent in the nature of the School Act itself, insofar as
the School Act permits, in the absence of provincial selection of learning resources, room for local selection of
complementary "educational resource materials": local variation exists to respond to views of local communities and
parents.
The School Board had two choices: to approve or not to approve, that was the question. The appellants' argument
seems to tend towards the conclusion that the School Board had no choice but to approve the books.
o What is a better educational choice, permit the Three Books to be taught in K-1 against the wishes of some
parents and then provide for the exclusion of certain children from the class as suggested by the appellants, or
to teach a general lesson about tolerance and respect for people by less controversial means and leave the
issue of parents in same-sex relationships and homosexuality for a time when students are better positioned to
address the issues involved and better positioned to reconcile the potentially incongruous messages they may
be receiving on this subject matter?
o The choice is difficult. The choice, however, was specifically intended to be made locally, as the School Act
envisages
Of particular importance to the decision of the Board with respect to the Three Books was the fact, as referred to in
the quote from Superintendent Renihan above, that the provincial "recommended learning resources" as set out by the
Ministry of Education in the Integrated Resource Package for K-1, particularly the "Family life education"
"suborganizer" of the "Personal Development" component did not, at that time, include any other resources expressly
dealing with homosexuality or same-sex couples/families.
o In fact, at that time, none of the provincially approved "educational resource materials" for any aspect of the
K-1 curriculum addressed this subject matter.
As noted by the reasons of the Chief Justice, in October of 1996, the B.C. Minister of Education, the Honourable Moe
Sihota, made public statements which suggested that same-sex parented families were amongst the family models
which he thought could be addressed under the PP curriculum.
o This was stated while at the same time the Ministry had both, as of that date, refused to approve the Three
Books in this case at the provincial level and had also failed to approve any "learning resources" to support
such instruction.
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Thus, this case came about since, after not getting the materials he wanted approved by the Minister, Mr.
Chamberlain turned to the local level
The respondent's reading of local parental concern is that the books portray same-sex parents as being on a moral par
with heterosexual parents, i.e., there are many kinds of relationships that are out there, and none is better or worse
than the others.
o This is a moral message, and a moral message of some concern to these parents since they disapprove of
same-sex relationships. This view is concerned about the moral equating of homosexual parents with
heterosexual parents, which is implicit in the identification, in all three of the books, of homosexual "Moms"
and "Dads".
o The message which caused concern, in the words of one parent's affidavit, is that: "Mommies and Daddies are
seen as good things in the eyes of my children and therefore the lifestyles of the Mommies and Daddies in the
stories must be acceptable".
This case concerns policy choices regarding curriculum implementation, decisions which are the responsibility of the
province or the local school board.
o It is not constitutionally mandated that five- and six-year-old children be exposed to educational resource
materials which portray parents in same-sex relationships, especially when there is significant parental
concern that these materials may be confusing for children to whom they wish to teach the subtle, but
essential in the eyes of certain parents, distinction between what may exist on the one hand and conduct which
may not be morally right on the other
Lebel (concurring with disposition)  In my view, the Board's decision could not be upheld even on the most
deferential standard of review, because it was patently unreasonable. It is therefore unnecessary to go through the full
analysis of the various factors used to determine the appropriate standard of judicial review.
The Board reached its decision in a way that was so clearly contrary to an obligation set out in its constitutive statute
as to be not just unreasonable but illegal.
o The School Act, R.S.B.C. 1996, c. 412, directs the Board to conduct all schools on strictly secular and nonsectarian principles.
o The overarching concern motivating the Board to decide as it did was accommodation of the moral and
religious belief of some parents that homosexuality is wrong, which led them to object to their children being
exposed to story books in which same-sex parented families appear.
o The Board allowed itself to be decisively influenced by certain parents' unwillingness to countenance an
opposed point of view and a different way of life.
o The question then becomes whether the trustees were faithful to the mandate spelled out in the statute. A
decision taken on such a basis, whether reasonable or not, cannot be called secular or non-sectarian within the
meaning of the statute, on any plausible interpretation.
o As a result, the decision amounts to a breach of statute, is patently unreasonable, and should be quashed
When the administrative body whose decision is challenged is not a tribunal, but an elected body with delegated
power to make policy decisions, the primary function of judicial review is to determine whether that body acted
within the bounds of the authority conferred on it. Courts must respect the responsibility of such bodies to serve those
who elected them, and will, as a rule, interpret their statutory powers generously
The decisions or actions of an administrative body of this kind will be invalidated if they are plainly contrary to the
express or implied limitations on its powers. The mechanical application, in this context, of a test which was
developed with a quite different kind of administrative body in mind is not only unnecessary, but may also lead both
to practical difficulties and to uncertainties about the proper basis of judicial review.
When courts are called upon to review adjudicative decisions of administrative tribunals, the key question is the basis
on which the legislature intended review by the courts to be available. This inquiry must be undertaken bearing in
mind the fact that the legislature has decided to take the matter out of the hands of the courts and to give the tribunal
primary authority over it, as well as the axiom that no administrative body has untrammelled discretion.
The decision under review here is different.
o Our Court is reviewing a policy decision made by an elected body whose function is to run local schools with
the input of the local community.
o The full set of factors included in the standard-of-review formula does not translate well into this context.
o Consider, for example, the presence or absence of a privative clause.
 One would not expect to find a privative clause in connection with the Board's decisions, and the
absence of one in the statute in no way signals that the legislature expected intervention by the courts
in the Board's day-to-day business to be possible.
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Expertise is another factor which is more apposite in the adjudicative context than it is here.
 Trustees are authorized to make decisions not because they have any special expertise, but because
they represent the community.
 Their level of expertise does not indicate anything about the extent of their discretion.
The ultimate question remains the legislature's intention
I do not intend to cast any doubt on the validity of the pragmatic and functional approach. On the contrary, I suggest
that it is more consistent with the philosophy underlying that approach to adapt the framework of judicial review to
varying circumstances and different kinds of administrative actors
In evaluating municipal actions, our Court has always focussed on whether the action in question was authorized, not
on whether it was reasonable.
The Board's decision not to approve the three books had political and adjudicative aspects. It could be analogized to
the passage of a by-law, or to the decision challenged in Nanaimo. In either case, the preliminary question is whether
the Board acted legally; it could not validly exercise a power it did not have.
I alluded above to the practical difficulties and the problems of legitimacy that can ensue if the pragmatic and
functional approach is applied to the Board, and other bodies like it, in a formulaic way. Attention will be diverted
from the real issue of legality to an unnecessary exploration of tangential questions. This needlessly drains the
resources of courts, particularly trial courts, which must often devote a great deal of time to intricate arguments on the
applicable standard of review before they can get to the heart of the matter.
I am in substantial agreement with the Chief Justice's views on the meaning of these provisions. Like her, I take the
words "secular" and "non-sectarian" in the School Act to imply that no single conception of morality can be allowed to
deny or exclude opposed points of view
Reasonable people may disagree about the precise meaning of the terms "secular" and "non-sectarian", and the
Board's own interpretation of them may well be entitled to curial deference.
o But I do not think it is possible on any interpretation to reconcile the requirements of secularism and nonsectarianism with the decision it made here, one that was fundamentally animated by the conviction of certain
parents that materials which might suggest a moral perspective different from their own were not to be
tolerated.
o Disagreement with the practices and beliefs of others, while certainly permissible and perhaps inevitable in a
pluralist society, does not justify denying others the opportunity for their views to be represented, or refusing
to acknowledge their existence.
o Whatever the personal views of the Board members might have been, their responsibility to carry out their
public duties in accordance with strictly secular and non-sectarian principles included an obligation to avoid
making policy decisions on the basis of exclusionary beliefs.
Critiquing the Standard
Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 [2003] 3 SCR 77
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Employee worked as a recreation instructor for the city  was convicted of a sexual assault and dismissed from his
job. Grieved his dismissal and was reinstated by the arbitrator  argued that the assault did not take place (res
judicata)
Arbour (McLachlin, Gonthier, Iacobucci, Major, Bastarache, and Binnie  dismiss appeal)
Can a person convicted of sexual assault, and dismissed from his employment as a result, be reinstated by a labour
arbitrator who concludes, on the evidence before him, that the sexual assault did not take place? This is essentially the
issue raised in this appeal
The arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence that Oliver
had sexually assaulted the boy. No evidence of fraud nor any fresh evidence unavailable at trial was introduced in the
arbitration. The arbitrator held that the presumption raised by the criminal conviction had been rebutted, and that
Oliver had been dismissed without just cause
Went to Divisional Court where the arbitration award was quashed  relitigation of the cases was barred by the
doctrines of collateral attack, issue estoppel and abuse of process. The court noted that criminal convictions are valid
judgments that cannot be collaterally attacked at a later arbitration
o whether the standard of review was correctness or patent unreasonableness in each case, the standard for
judicial review had been met
Court of Appeal  the appropriate standard of review was correctness
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issue estoppel did not apply  non mutual parties  because the City was not the Crown which had prosecuted the
criminal offence
Commenting that the phrase "abuse of process" was perhaps best limited to describe those cases where the plaintiff
has instigated litigation for some improper purpose, Doherty J.A. went on to consider what he called "the finality
principle" in considerable depth
He held that the res judicata jurisprudence required a court to balance the importance of finality, which reduces
uncertainty and inconsistency in results, and which serves to conserve the [page89] resources of both the parties and
the judiciary, with the "search for justice in each individual case"
Ultimately, Doherty J.A. dismissed the appeal, concluding that "finality concerns must be given paramountcy over
CUPE's claim to an entitlement to relitigate Oliver's culpability"
Doherty J.A. was correct to acknowledge patent unreasonableness as the general standard of review of an arbitrator's
decision as to whether just cause has been established in the discharge of an employee. However, and as he noted, the
same standard of review does not necessarily apply to every ruling made by the arbitrator in the course of the
arbitration. This follows the distinction drawn by Cory J. for the majority in Toronto (City) Board of Education v.
O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, where he said, at para. 39:
o It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises
in interpreting a collective agreement does not usually extend to the interpretation of "outside" legislation.
The findings of a board pertaining to the interpretation of a statute or the common law are generally
reviewable on a correctness standard... . An exception to this rule may occur where the external statute is
intimately connected with the mandate of the tribunal and is encountered frequently as a result
In this case, the reasonableness of the arbitrator's decision to reinstate the grievor is predicated on the correctness of
his assumption that he was not bound by the criminal conviction.
o That assumption rested on his analysis of complex common law rules and of conflicting jurisprudence. The
body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is not only
complex; it is also at the heart of the administration of justice. Properly understood and applied, the doctrines
of res judicata and abuse of process govern the interplay between different judicial decision makers.
o These rules and principles call for a judicial balance between finality, fairness, efficiency and authority of
judicial decisions.
o The application of these rules, doctrines and principles is clearly outside the sphere of expertise of a labour
arbitrator who may be called to have recourse to them. In such a case, he or she must correctly answer the
question of law raised.
o An incorrect approach may be sufficient to lead to a patently unreasonable outcome.
 Therefore I agree with the Court of Appeal that the arbitrator had to decide correctly whether
CUPE was entitled, either at common law or under a statute, to relitigate the issue decided against
the grievor in the criminal proceedings.
Section 22.1 of the Ontario Evidence Act is of limited assistance to the disposition of this appeal. It provides that proof
that a person has been convicted of a crime is proof, "in the absence of evidence to the contrary", that the crime was
committed by that person
a criminal conviction is admissible in subsequent civil litigation as prima facie proof that the convicted individual
committed the alleged act, "subject to rebuttal by the plaintiff on the merits". However, the common law also
recognized that the presumption of guilt established by a conviction is rebuttable only where the rebuttal does not
constitute an abuse of the process of the court (Demeter)
Much consideration was given in the decisions below to the three related common law doctrines of issue estoppel,
abuse of process and collateral attack. Each of these doctrines was considered as a possible means of preventing the
union from relitigating the criminal conviction of the grievor before the arbitrator.
Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the
relitigation of issues previously decided [page95] in court in another proceeding. For issue estoppel to be successfully
invoked, three preconditions must be met:
o (1) the issue must be the same as the one decided in the prior decision;
o (2) the prior judicial decision must have been final; and
o (3) the parties to both proceedings must be the same, or their privies
o (Danyluk v. Ainsworth Technologies Inc., at para. 25, per Binnie J.).
he final requirement, known as "mutuality", has been largely abandoned in the United States and has been the subject
of much academic and judicial debate there as well as in the United Kingdom and, to some extent, in this country.
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The first two requirements of issue estoppel are met in this case. The final requirement of mutuality of parties has not
been met  There has been much criticism of this requirement
What emerges from the American experience with the abandonment of mutuality is a twofold concern:
o (1) the application of the estoppel must be sufficiently principled and predictable to promote efficiency; and
o (2) it must contain sufficient flexibility to prevent unfairness. In my view, this is what the doctrine of abuse of
process offers, particularly, as here, where the issue involves a conviction in a criminal court for a serious
crime.
In a case such as this one, the true concerns are not primarily related to mutuality. The true concerns, well reflected in
the reasons of the Court of Appeal, are with the integrity and the coherence of the administration of justice
On the other hand, even though no one can join the prosecution, the prosecutor as a party represents the public
interest. He or she represents a collective interest in the just and correct outcome of the case. The prosecutor is said to
be a minister of justice who has nothing to win or lose from the outcome of the case but who must ensure that a just
and true verdict is rendered.
The mutuality requirement of the doctrine of issue estoppel, which insists that only the Crown and its privies be
precluded from relitigating the guilt of the accused, is hardly reflective of the true role of the prosecutor.
As the present case illustrates, the primary concerns here are about the integrity of the criminal process and the
increased authority of a criminal verdict, rather than some of the more traditional issue estoppel concerns that focus
on the interests of the parties, such as costs and multiple "vexation
The rule against collateral attack bars actions to overturn convictions when those actions take place in the wrong
forum
Prohibited "collateral attacks" are abuses of the court's process. However, in light of the focus of the collateral attack
rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the
doctrine of abuse of process.
Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of
process was described at common law as proceedings "unfair to the point that they are contrary to the interest of
justice"
o abuse of process may be established where:
 (1) the proceedings are oppressive or vexatious; and,
 (2) violate the fundamental principles of justice underlying the community's sense of fair play and
decency.
o The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the
doctrine evokes as well the public interest in a fair and just trial process and the proper administration of
justice
The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of an
accused may disentitle the Crown to carry on with the prosecution of a charge
When the Canadian Charter of Rights and Freedoms applies, the common law doctrine of abuse of process is
subsumed into the principles of the Charter such that there is often overlap between abuse of process and
constitutional remedies
In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to
prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute"
Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the
strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the
litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the
integrity of the administration of justice
It is true that the doctrine of abuse of process has been extended beyond the strict parameters of res judicata while
borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defined in
reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one
The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res
judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of
the court's process
Critics of that approach have argued that when abuse of process is used as a proxy for issue estoppel, it obscures the
true question while adding nothing but a vague sense of discretion. I disagree. At least in the context before us,
namely, an attempt to relitigate a criminal conviction, I believe that abuse of process is a doctrine much more
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responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of process
is the integrity of the adjudicative functions of courts
Thus, in the case at bar, it matters little whether Oliver's motive for relitigation was primarily to secure reemployment, rather than to challenge his criminal conviction in an attempt to undermine its validity
A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued
through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect
of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or
abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a
different forum. Therefore, motive is of little or no import.
There is also no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff has
initiated the relitigation.
While the authorities most often cited in support of a court's power to prevent relitigation of decided issues in
circumstances where issue estoppel does not apply are cases where a convicted person commenced a civil proceeding
for the purpose of attacking a finding made in a criminal proceeding against that person there is no reason in principle
why these rules should be limited to such specific circumstances.
o Several cases have applied the doctrine of abuse of process to preclude defendants from relitigating issues
decided against them in a prior proceeding
Of course, a defendant may be quite pleased to have another opportunity to litigate an issue originally decided against
him. A proper focus on the process, rather than on the interests of a party, will reveal why relitigation should not be
permitted in such a case.
Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity
of the adjudicative process.
In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority
of the process as well as the finality of the result
There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for
example:
o (1) when the first proceeding is tainted by fraud or dishonesty;
o (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or
o (3) when fairness dictates that the original result should not be binding in the new context.
o This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way
are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result.
o There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata
or that of abuse of process, would create unfairness.
o If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response,
while the subsequent stakes were considerable, fairness would dictate that the administration of justice would
be better served by permitting the second proceeding to go forward than by insisting that finality should
prevail.
o An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted
original process may all overcome the interest in maintaining the finality of the original decision
These considerations are particularly apposite when the attempt is to relitigate a criminal conviction. Casting doubt
over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion
of the arbitrator has precisely that effect, whether this was intended or not.
I am of the view that the facts in this appeal point to the blatant abuse of process that results when relitigation of this
sort is permitted. The grievor was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his
conviction must stand, with all its consequent legal effects
LeBel and Deschamps (concurring in result more expansive on the Standard of Review aspect)
I also agree that the appropriate standard of review for the question of whether a criminal conviction may be
relitigated in a grievance proceeding is correctness
Finally, I agree that the arbitrator's determination in this case that Glenn Oliver's criminal conviction could indeed be
relitigated during the grievance proceeding was incorrect.
o As a matter of law, the arbitrator was required to give full effect to Oliver's conviction.
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His failure to do so was sufficient to render his ultimate decision that Oliver had been dismissed without just
cause -- a decision squarely within the arbitrator's area of specialized expertise and thus reviewable on a
deferential standard -- patently unreasonable, according to the jurisprudence of our Court.
I would note that in a case such as this one, where the question at issue is so clearly a question of law that is both of
central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise , it is
unnecessary for the reviewing court to perform a detailed pragmatic and functional analysis in order to reach a
standard of review of correctness.
o Indeed, in such circumstances reviewing courts should avoid adopting a mechanistic approach to the
determination of the appropriate standard of review, which risks reducing the pragmatic and functional
analysis from a contextual, flexible framework to little more than a pro forma application of a checklist of
factors
Given its broad application, the law governing the standards of review must be predictable, workable and coherent.
o Parties to litigation often have no personal stake in assuring the coherence of our standards of review
jurisprudence as a whole and the consistency of their application.
o Their purpose, understandably, is to show how the positions they advance conform with the law as it stands,
rather than to suggest improvements of that law for the benefit of the common good.
Two standards of review are at issue in this case, and the use of correctness here requires some preliminary
discussion.
o As I noted in brief above, certain fundamental legal questions -- for instance, constitutional and human rights
questions and those involving civil liberties, as well as other questions that are of central importance to the
legal system as a whole, such as the issue of relitigation -- typically fall to be decided on a correctness
standard.
o Indeed, in my view, it will rarely be necessary for reviewing courts to embark on a comprehensive application
of the pragmatic and functional approach in order to reach this conclusion. I would not, however, want either
my comments in this regard or the majority reasons in this case to be taken as authority for the proposition
that correctness is the appropriate standard whenever arbitrators or other specialized administrative
adjudicators are required to interpret and apply general common law or civil law rules
Such an approach would constitute a broad expansion of judicial review under a standard of correctness and would
significantly impede the ability of administrative adjudicators, particularly in complex and highly specialized fields
such as labour law, to develop original solutions to legal problems, uniquely suited to the context in which they
operate.
o In my opinion, in many instances the appropriate standard of review in respect of the application of general
common or civil law rules by specialized adjudicators should not be one of correctness, but rather of
reasonableness.
The Correctness Standard of Review
This Court has repeatedly stressed the importance of judicial deference in the context of labour law.
o Labour relations statutes typically bestow broad powers on arbitrators and labour boards to resolve the wide
range of problems that may arise in this field and protect the decisions of these adjudicators by privative
clauses.
o Such legislative choices reflect the fact that, as Cory J. noted in Toronto (City) Board of Education v.
O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 35, the field of labour relations is "sensitive and volatile"
and "[i]t is essential that there be a means of providing speedy decisions by experts in the field who are
sensitive to the situation, and which can be considered by both sides to be final and binding"
o The application of a standard of review of correctness in the context of judicial review of labour adjudication
is thus rare.
It is important to stress, first, that while the arbitrator was required to be correct on this question of law, this did not
open his decision as a whole to review on a correctness standard
o The arbitrator was entitled to deference in the determination of whether Oliver was dismissed without just
cause. To say that, in the circumstances of this case, the arbitrator's incorrect decision on the question of law
affected the overall reasonableness of his decision, is very different from saying that the arbitrator's finding on
the ultimate question of just cause had to be correct.
Second, it bears repeating that the application of correctness here is very much a product of the nature of this
particular legal question: determining whether relitigating an employee's criminal conviction is permissible in an
arbitration proceeding is a question of law involving the interpretation of the arbitrator's constitutive statute, an
external statute, and a complex body of common law rules and conflicting jurisprudence
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More than this, it is a question of fundamental importance and broad applicability, with serious implications
for the administration of justice as a whole.
 It is, in other words, a question that engages the expertise and essential role of the courts.
 It is not a question on which arbitrators may be said to enjoy any degree of relative institutional
competence or expertise.
 As a result, it is a question on which the arbitrator must be correct
not all questions of law must be reviewed under a standard of correctness
in many cases it will be difficult to draw a clear line between questions of fact, mixed fact and law, and law; in reality,
such questions are often inextricably intertwined
"even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and
functional analysis suggest that such deference is the legislative intention"
o The critical factor in this respect is expertise
while administrative adjudicators' interpretations of external statutes "are generally reviewable on a correctness
standard", an exception to this general rule may occur, and deference may be appropriate, where "the external statute
is intimately connected with the mandate of the tribunal and is encountered frequently as a result"
deference may be warranted where an administrative adjudicator has acquired expertise through its experience in the
application of a general common or civil law rule in its specialized statutory context:
In the field of labour relations, general common and civil law questions are often closely intertwined with the more
specific questions of labour law.
o Resolving general legal questions may thus be an important component of the work of some administrative
adjudicators in this field.
o To subject all such decisions to correctness review would be to expand the scope of judicial review
considerably beyond what the legislature intended, fundamentally undermining the ability of labour
adjudicators to develop a body of jurisprudence that is tailored to the specialized context in which they
operate
Where an administrative adjudicator must decide a general question of law in the course of exercising its statutory
mandate, that determination will typically be entitled to deference (particularly if the adjudicator's decisions are
protected by a privative clause), inasmuch as the general question of law is closely connected to the adjudicator's core
area of expertise
Court has recognized on a number of occasions that it may, in certain circumstances, be appropriate to apply different
standards of deference to different decisions taken by an administrative adjudicator in a single case
The Patent Unreasonableness Standard of Review
This Court has set out a number of definitions of "patent unreasonableness", each of which is intended to indicate the
high degree of deference inherent in this standard of review.
o There is some overlap between the definitions and they are often used in combination. I would characterize
the two main definitional strands as, first, those that emphasize the magnitude of the defect necessary to
render a decision patently unreasonable and, second, those that focus on the "immediacy or obviousness" of
the defect, and thus the relative invasiveness of the review necessary to find it.
 I would place in the first category Dickson J.'s (as he then was) statement in Canadian Union of
Public Employees, Local 963 v. New Brunswick Liquor Corp., ("CUPE"), that a decision will only be
patently unreasonable if it "cannot be rationally supported by the relevant legislation"
 In the second category, I would place Iacobucci J.'s description in Southam, supra, of a patently
unreasonable decision as one marred by a defect that is characterized by its "immediacy or
obviousness":
It has been suggested that the Court's various formulations of the test for patent unreasonableness are "not
independent, alternative tests. They are simply ways of getting at the single question: What makes something patently
unreasonable?"
As I observed in Chamberlain, supra, the difference between review on a standard of correctness and review on a
standard of patent unreasonableness is "intuitive and relatively easy to observe" (Chamberlain, supra, at para. 204,
per LeBel J.). These standards fall on opposite sides of the existing spectrum of curial deference, with correctness
entailing an exacting review and patent unreasonableness leaving the issue in question to the near exclusive
determination of the decision maker
Professor Mullan explains that, on the one hand, Dickson J. rooted review for patent unreasonableness in the
recognition that statutory provisions are often ambiguous and thus may allow for multiple interpretations; the question
for the reviewing court is whether the adjudicator's interpretation is one that can be "rationally supported by the
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relevant legislation" (CUPE, supra, at p. 237). On the other hand, Dickson J. also invoked an idea of patent
unreasonableness as a threshold defined by certain nullifying errors
o acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account,
breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an
inquiry or answer a question not remitted to it
Curiously, as Mullan notes, this list "repeats the list of 'nullifying' errors that Lord Reid laid out in the landmark
House of Lords' judgment" in Anisminic Ltd. v. Foreign Compensation Commission, [ 1969] 2 A.C. 147. [page126]
Anisminic "is usually treated as the foundation case in establishing in English law the reviewability of all issues of law
on a correctness basis" (emphasis added), and, indeed, the Court "had cited with approval this portion of Lord Reid's
judgment and deployed it to justify judicial intervention in a case described as the 'high water mark of activist' review
in Canada: Metropolitan Life Insurance Co
In characterizing patent unreasonableness in CUPE, then, Dickson J. simultaneously invoked a highly deferential
standard (choice among a range of reasonable alternatives) and a historically interventionist one (based on the
presence of nullifying errors). For this reason, as Mullan acknowledges, "it is easy to see why Dickson J.'s use of [the
quotation from Anisminic] is problematic"
If Dickson J.'s reference to Anisminic in CUPE, supra, suggests some ambiguity as to the intended scope of "patent
unreasonableness" review, later judgments also evidence a somewhat unclear relationship between patent
unreasonableness and correctness in terms of establishing and, particularly, applying the methodology for review
under the patent unreasonableness standard. The tension in this respect is rooted, in part, in differing views of the
premise from which patent unreasonableness review should begin
"this Court has stated repeatedly, in assessing whether administrative action is patently unreasonable, the goal is not to
review the decision or action on its merits but rather to determine whether it is patently unreasonable, given the
statutory provisions governing the particular body and the evidence before it" (para. 53). Patent unreasonableness
review, in other words, should not "become an avenue for the court's substitution of its own view"
This view was recently forcefully rearticulated in Ryan, supra
o [W]hen deciding whether an administrative action was unreasonable, a court should not at any point ask itself
what the correct decision would have been... . The standard of reasonableness does not imply that a decision
maker is merely afforded a "margin of error" around what the court believes is the correct result
In each of these cases, there were two standards of review in play:
o there was a fundamental legal question on which the adjudicators were subject to a standard of correctness -whether the employees' criminal convictions could be relitigated -- and there was a question at the core of the
adjudicators' expertise on which they were subject to a standard of patent unreasonableness -- whether the
employees had been dismissed for just cause.
o As Arbour J. has outlined, the adjudicators' failure to decide the fundamental relitigation question correctly
was sufficient to lead to a patently unreasonable outcome.
o Indeed, in circumstances such as those at issue in the case at bar, this cannot but be the case: the adjudicators'
incorrect decisions on the fundamental legal question provided the entire foundation on which their legal
analyses, and their conclusions as to whether the employees were dismissed with just cause, were based.
o To pass a review for patent unreasonableness, a decision must be one that can be "rationally supported"; this
standard cannot be met where, as here, what supports the adjudicator's decision -- indeed, what that decision
is wholly premised on -- is a legal determination that the adjudicator was required, but failed, to decide
correctly.
o To say, however, that in such circumstances a decision will be patently unreasonable -- a conclusion that
flows from the applicability of two separate standards of review -- is very different from suggesting that a
reviewing court, before applying the standard of patent unreasonableness, must first determine whether the
adjudicator's decision is (in)correct or that in applying patent unreasonableness the court should ask itself at
any point in the analysis what the correct decision would be. In other words, the application of patent
unreasonableness itself is not, and should not be, understood to be predicated on a finding of incorrectness,
for the reasons that I discussed above
courts must be careful [under a standard of patent unreasonableness] to focus their inquiry on the existence of a
rational basis for the decision of the tribunal, and not on their agreement with it" -- the tension between patent
unreasonableness and correctness has not been completely resolved. Slippage between the two standards is still
evident at times in the way in which patent unreasonableness is applied.
the boundaries between patent unreasonableness and reasonableness simpliciter are far less clear, even at the
theoretical level.
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The lack of sufficiently clear boundaries between patent unreasonableness and reasonableness simpliciter has its
origins in the fact that patent unreasonableness was developed prior to the birth of the pragmatic and functional
approach and, more particularly, prior to (rather than in conjunction with) the formulation of reasonableness
simpliciter in Southam, supra. Because patent unreasonableness, as a posture of curial deference, was conceived in
opposition only to a correctness standard of review, it was sufficient for the Court to emphasize in defining its scope
the principle that there will often be no one interpretation that can be said to be correct in interpreting a statute or
otherwise resolving a legal dispute, and that specialized administrative adjudicators may, in many circumstances, be
better equipped than courts to choose between the possible interpretations.
Upon the advent of reasonableness simpliciter, however, the validity of multiple interpretations became the
underlying premise for this new variant of reasonableness review as well.
o Unlike a review for correctness, there will often be no single right answer to the questions that are under
review against the standard of reasonableness... . Even if there could be, notionally, a single best answer, it is
not the court's role to seek this out when deciding if the decision was unreasonable
Because patent unreasonableness and reasonableness simpliciter are both rooted in this guiding principle, it has been
difficult to frame the standards as analytically, rather than merely semantically, distinct. The efforts to sustain a
workable distinction between them have taken, in the main, two forms, which mirror the two definitional strands of
patent unreasonableness that I identified above. One of these forms distinguishes between patent unreasonableness
and reasonableness simpliciter on the basis of the relative magnitude of the defect. The other looks to the "immediacy
or obviousness" of the defect, and thus the relative invasiveness of the review necessary to [page134] find it. Both
approaches raise their own problems
Mullan alludes to both the practical and the theoretical difficulties of maintaining a distinction based on the magnitude
of the defect, i.e., the degree of irrationality, that characterizes a decision
Under both patent unreasonableness and reasonableness simpliciter, mere disagreement with the adjudicator's decision
is insufficient to warrant intervention
Applying the patent unreasonableness standard, "the court will defer even if the interpretation given by the tribunal ...
is not the 'right' interpretation in the court's view nor even the 'best' of two possible interpretations, so long as it is an
interpretation reasonably attributable to the words of the agreement"
In the case of reasonableness simpliciter, "a decision may satisfy the ... standard if it is supported by a tenable
explanation even if this explanation is not one that the reviewing court finds compelling" (Ryan, supra, at para. 55).
There seems to me to be no qualitative basis on which to differentiate effectively between these various
characterizations of a rationality analysis; how, for instance, would a decision that is not "tenably supported" (and is
thus "merely" unreasonable) differ from a decision that is not "rationally supported" (and is thus patently
unreasonable)?
The existence of these two variants of reasonableness review forces reviewing courts to continue to grapple with the
significant practical problems inherent in distinguishing meaningfully between the two standards. To the extent that a
distinction is advanced on the basis of the relative severity of the defect, this poses not only practical difficulties but
also difficulties in principle, as this approach implies that patent unreasonableness, in requiring "clear" rather than
"mere" irrationality, allows for a margin of appreciation for decisions that are not in accordance with reason.
There is a second approach to distinguishing between patent unreasonableness and reasonableness simpliciter that
requires discussion
o The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of
the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently
unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is
unreasonable but not patently unreasonable
In my view, two lines of difficulty have emerged from emphasizing the "immediacy or obviousness" [page138] of the
defect, and thus the relative invasiveness of the review necessary to find it, as a means of distinguishing between
patent unreasonableness and reasonableness simpliciter. The first is the difficulty of determining how invasive a
review is invasive enough, but not too invasive, in each case. The second is the difficulty that flows from ambiguity as
to the intended meaning of "immediacy or obviousness" in this context: is it the obviousness of the defect in the sense
of its transparency on the face of the decision that is the defining characteristic of patent unreasonableness review or
is it rather the obviousness of the defect in terms of the ease with which, once found, it can be identified as severe?
This Court has itself experienced some difficulty in consistently performing patent unreasonableness review in a way
that is less probing than the "somewhat probing" analysis that is the hallmark of reasonableness simpliciter.
Even prior to Southam and the development of reasonableness simpliciter, there was some uncertainty as to how
intensely patent unreasonableness review is to be performed. This is particularly evident in National Corn Growers
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Southam itself did not definitively resolve the question of how invasively review for patent unreasonableness should
be performed . An intense review would seem to be precluded by the statement that, "if it takes some significant
searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable"
This brings me to the second problem: in what sense is the defect immediate or obvious? Southam left some
ambiguity on this point. As I have outlined, on the one hand, a patently unreasonable decision is understood as one
that is flawed by a defect that is evident on the face of the decision, while an unreasonable decision is one that is
marred by a defect that it takes significant searching or testing to find. In other places, however, Southam suggests
that the "immediacy or obviousness" of a patently unreasonable defect refers not to the ease of its detection, but rather
to the ease with which, once detected, it can be identified as severe
There is no easy way out of this conundrum. Whatever attempts are made to clarify the contours of, or the relationship
between, the existing definitional strands of patent unreasonableness, this standard and reasonableness simpliciter will
continue to be rooted in a shared rationale: statutory language is often ambiguous and "admits of more than one
possible meaning"; provided that the expert administrative adjudicator's interpretation "does not move outside the
bounds of reasonably permissible visions of the appropriate interpretation, there is no justification for court
intervention" It will thus remain difficult to keep these standards conceptually distinct, and I query whether, in the
end, the theoretical efforts necessary to do so are productive.
Thus, both patent unreasonableness and reasonableness simpliciter require that reviewing courts pay "respectful
attention" to the reasons of adjudicators in assessing the rationality of administrative decisions
Attempting to differentiate between these two variants of curial deference by classifying one as "somewhat more
probing" in its attentiveness than the other is unlikely to prove any more successful in practice than it has proven in
the past. Basing the distinction on the relative ease with which a defect may be detected also raises a more theoretical
quandary: the difficulty of articulating why a defect that is obvious on the face of a decision should present more of an
imperative for court intervention than a latent defect. While a defect may be readily apparent because it is severe, a
severe defect will not necessarily be readily apparent; by the same token, a flaw in a decision may be immediately
evident, or obvious, but relatively inconsequential in nature.
An additional effect of clarifying that the "immediacy or obviousness" of the defect refers not to its transparency on
the face of the decision but rather to its magnitude upon detection is to suggest that it is feasible and appropriate for
reviewing courts to attempt to qualify degrees of irrationality in assessing the decisions of administrative adjudicators:
i.e., this decision is irrational enough to be unreasonable, but not so irrational as to be overturned on a standard of
patent unreasonableness. Such an outcome raises questions as to whether the legislative intent could ever be to let
irrational decisions stand. In any event, such an approach would seem difficult to reconcile with the rule of law.
The inclusion of an intermediate standard does appear to provide reviewing courts with an enhanced ability to tailor
the degree of deference to the particular situation.
o In my view, however, the lesson to be drawn from our experience since then is that those advantages appear
to be outweighed by the current framework's drawbacks, which include the conceptual and practical
difficulties that flow from the overlap between patent unreasonableness and reasonableness simpliciter, and
the difficultly caused at times by the interplay between patent unreasonableness and correctness.
In particular, the inability to sustain a viable analytical distinction between the two variants of reasonableness has
impeded their application in practice in a way that fulfils the theoretical promise of a more precise reflection of the
legislature's intent. In the end, attempting to distinguish between the unreasonable and the patently unreasonable may
be as unproductive as attempting to differentiate between the "illegible" and the "patently illegible".
On the assumption that we can distinguish effectively between an unreasonable and a patently unreasonable decision,
there are situations where an unreasonable (i.e., irrational) decision must be allowed to stand.
o This would be the case where the standard of review is patent unreasonableness and the decision under review
is unreasonable, but not patently so.
o As I have noted, I doubt that such an outcome could be reconciled with the intent of the legislature which, in
theory, the pragmatic and functional analysis aims to reflect as faithfully as possible. As a matter of statutory
interpretation, courts should always be very hesitant to impute to the legislature any intent to let irrational
administrative acts stand, absent the most unequivocal statement of such an intent (see Sullivan and Driedger
on the Construction of Statutes (4th ed. 2002), at pp. 367-68) .
o As a matter of theory, the constitutional principle of the primacy of the rule of law, which is an ever-present
background principle of interpretation in this context, reinforces the point: if a court concludes that the
legislature intended that there be no recourse from an irrational decision, it seems highly likely that the court
has misconstrued the intent of the legislature.
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Some Concluding Thoughts on the Standard of Review – pages 823-824 of Text
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The level of analytical complexity has grown exponentially from the time that CUPE came about
In considering an application for JR lawyers must consider any lmitiations on JR, be able to assemble and manipulate
to advantage the factors the comprise the “pragmatic and functional” approach, and come to grips with the far from
self-applying concepts of reasonableness and patent-unreasonableness
Almost impossible to predict the likely response to a JR application
Little doubt that the court now addresses more directly and usually with more sophistication than ever before the
underlying issues and tensions in the exercise of interpretation
Indeed some who have little problem with increased interventionism hold the view that it would be an abdication of
the courts’ constitutional responsibility to uphold the rule of law if they were to defer to an agency’s interpretation of
their legislation whenever it could have more than one interpretation
But there are some serious difficulties with such an appeal to the rule of law  one being that it is often difficult to
discern the “correct” meaning of a statute
o Also the view  as expressed in the Allars’ excerpt that correctness is in the eye of the interpreter  for the
judge their view of what is the correct interpretation is coloured by their position and their experiences, just as
the arbitrator’s view of what is correct is coloured by their position, education and experiences
 Given this view then correctness should not be the standard of review  ever
 Rather patent unreasonableness should be the only standard of review that is acceptable
Part IV: Rule Making and Regulation
Thorne’s Hardware Ltd. v. Canada [1983] 1 SCR 106
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Appellants challenged in the Federal Court (1) the validity of an order in council extending the limits of the port of
Saint John so as to include appellants' berth and harbour facilities and (2) the applicability to them of a National
Harbours Board's By-law imposing harbour dues on all vessels entering or using the port. The Trial Division held the
Order in Council intra vires the powers of the Governor in Council but the By-law to be inapplicable to the appellants.
The Court of Appeal disagreed with the trial judge on the second point. Hence this appeal to determine whether the
appellants are obliged to pay harbour dues.
Judgment  The issue is whether the appellants are obliged to pay harbour dues imposed by the National Harbours
Board on ships entering or using the port of Saint John, New Brunswick. Two questions arise: (i) is federal Order in
Council P.C. 1977-2115 extending the limits of the port of Saint John so as to include the appellant's riparian property
"void, unlawful, unjust, discriminatory and ultra vires" the Governor in Council?; (ii) is National Harbours Board Bylaw B-1, Tariff of Harbour Dues, imposing harbour dues on all vessels entering or using the port of Saint John,
applicable to the appellants in the circumstances of this case?
The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial
review
I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met
and where there is therefore fatal jurisdictional defect
Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling
grounds remains open, it would take an egregious case to warrant such action. This is not such a case.
In passing Order in Council P.C. 1977-2115 on July 27, 1977, the federal Cabinet acted under statutory authority
deriving from s. 7(2) of the National Harbours Board Act
The appellants attack the Order in Council expanding the harbour limits on the basis that it was passed for the sole
purpose of increasing the National Harbour Board's revenues.
They say this amounts to "bad faith" on the part of the Governor in Council
It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in
Council
I agree with the Federal Court of Appeal that the government's reasons for expanding the harbour are in the end
unknown. Governments do not publish reasons for their decisions; governments may be moved by any number of
political, economic, social or partisan considerations
There was also ample evidence before Mr. Justice Dubé from which one might conclude that the expectation of
increased revenues was not the only reason for expanding the harbour
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the issue of harbour extension was one of economic policy and politics; and not one of jurisdiction or jurisprudence.
The Governor in Council quite obviously believed that he had reasonable grounds for passing Order in Council P.C.
1977-2115 extending the boundaries of Saint John Harbour and we cannot enquire into the validity of those beliefs in
order to determine the validity of the Order in Council.
The Use and Misuse of Discretion
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No aspect of administrative law has attracted a worse press from opponents of an activist state than the discretionary
powers regularly conferred on and exercised by agencies and officials in the course of carrying out statutory schemes
Dicey seemed to regard the presence of discretion as inimical to a system of government that was subject to the rule
of law
The McRuer report accepted that there was a need for some discretion in the modern state  however the report said
that it should be restricted to what is
o Necessary and unavoidable in order to achieve the social objective or policy of the statute. It ought not to be
conferred where rules or standards for judicial application can be stated. Where an administrative power is
necessary and unavoidable, the power should be no wider in scope than is demanded to meet the necessity
No commentator on contemporary government who wishes to be taken seriously can now contend that broad statutory
grants of discretion to public officials are in themselves inconsistent with either democratic ideals or an appropriate
concern for the rights of individuals
It has become obvious to all that discretion is the very lifeblood of the administrative state
o This is not to say that the grant of discretion to administrative agencies is uncontroversial
o A newer dimension to this broad grant of discretion is the granting of broad decision making power to
Cabinet in legislation  make laws with the decision-making left out and left up to the Minister instead 
executive legislation
 A weakening of Parliament and of democracy?
By discretion we are talking about an express legal power to choose a course of action from a range of permissible
options including the option of inaction
o The discretion may authorize administrative action, a decision that is aimed at an individual or a small group,
or the making of a rule that will affect a large number of people
Four comments about discretion
o Often the terms of the statute do not lead to a clear meaning  will require interpretation which is, in effect,
an implicit discretion
o Even the most detailed statutes are not self enforcing  those who enforce statutes will have some discretion
o Just as rules contain grants of implicit discretion, so all express grants of discretion to public officials are
subject to legal limits  at least when their exercise affects the rights and interests of individuals
 Courts have asserted that there are no legally unlimited public powers
o Discretionary decisions must be informed not only by the statute but also by any policy statements,
guidelines, past practices etc. of the agency
At common law there have always been a number of discrete grounds of JR for abuse of discretion
o If the decision maker acted in bad faith, wrongfully delegated powers, fettered its exercise of discretion
Another and more frequent ground of JR for discretion is that the agency to which it has been given has exercised it in
order to achieve some purpose not contemplated by its grant
o Related to this is the ground that the agency has considered some factor that is irrelevant to achieving the ends
for which the power was granted
Issues of relevancy and purpose normally boil down to questions of statutory interpretation
o Since this is an inexact science there is plenty of scope for differences about how the statute should be
interpreted
Some points of reference that courts use in assessing the width of the discretionary power in question
o The statutory language in which the discretion is granted
o The nature of the interest affected by the discretionary power
o The character of the decision
o The character of the decision maker
In the absence of a right of appeal from the decision the legal basis of the courts’ intervention was traditionally
subsumed under the doctrine of ultra vires
However it is a requirement of the concept of government under the law that discretionary powers are presumptively
limited in scope and the agency’s discretion does not extend to defining the limits of its own powers.
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It is for the courts to ensure that the agency does not use its power for some purpose not authorized by the
legislature or base its decision on a range of factors that are either narrower or broader than those intended by
the legislature to inform the exercise of the discretion
Discretion necessarily implies good faith in discharging public duty; there is always a perspective within which a
statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or
corruption
The theoretical basis for the judicial review of the exercise of statutory discretion is essentially the same as that
advanced for the courts power to set aside as null and void agency decisions that are based on a misrepresentation by
the agency of a provision in its statute that limits or confers jurisdiction
Courts typically assumed tahth it was their function on an application for JR to determine independently the scope of
the agency’s statutory discretion: whether a factor considered by the agency was relevant or a purpose pursued was
authorized is reviewable by a standard of correctness, not unreasonableness
For many years after Bibeault the SCC did not consider whether the pragmatic and functional approach requires that
questions of relevancy and propriety of purpose should be characterized as jurisdictional and thus reviewable for
correctness, when the agency’s decisions are protected by a privative clause
o Rather the court simply substituted its view for that, for example, of labour relations boards as to whether the
remedy granted under a broad statutory power does, as the statute provides, further the objectives of the
legislation, or counter the consequences of the unfair labour practice that has been committed
But Baker changed things  SCC emphasized the lack of a bright-line distinction at the margins between questions of
law and exercises of discretion
o Led the SCC to recognized that the pragmatic and functional approach was of use in determining the intensity
with which reviewing courts should be approaching decisions in the discretionary section of the spectrum
between pure questions of law, at one end, and completely unfettered discretion to be exercised on the basis
of the subjective judgment of the repository of power, at the other end
o Thus came standard of review discourse to the world of discretion
The issue of standard of review coming to look at the exercise of discretion means nothing in terms of bad faith,
acting under dictation, unlawful subdelegation, and wrongful fettering given that these are largely fact based grounds
of abuse of discretion review
But in the realm of failing to take account of relevant factors, taking account of irrelevant factors, and even acting for
an improper purpose it is now necessary to ask whether the standard of review is correctness, unreasonableness or
patent unreasonableness
Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256
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Was wearing a kirpan to school  fell out at school and was sent home, he had an agreement with the school but was
overridden and instead there was an outright ban put in place. Went to court and court overruled the school, Court of
Appeal overturned and went to SCC
Charron (McLachlin, Bastarache, Fish, Binnie)
I am of the view that an absolute prohibition against wearing a kirpan infringes the freedom of religion of the student
in question under s. 2(a) of the Canadian Charter of Rights and Freedoms ("Canadian Charter"). The infringement
cannot be justified under s. 1 of the Canadian Charter, since it has not been shown that such a prohibition minimally
impairs the student's rights
Court of Appeal  concluded that the applicable standard was reasonableness simpliciter.
Although the appropriate standard of review in the case at bar was not argued at trial, it was in the Court of Appeal.
o I am of the view that this approach could well reduce the fundamental rights and freedoms guaranteed by the
Canadian Charter to mere administrative law principles or, at the very least, cause confusion between the
two.
o It is not surprising that the values underlying the rights and freedoms guaranteed by the Canadian Charter
form part -- and sometimes even an integral part -- of the laws to which we are subject. However, the fact that
an issue relating to constitutional rights is raised in an administrative context does not mean that the
constitutional law standards must be dissolved into the administrative law standards
it is my opinion that the Court of Appeal's analysis of the standard of review was inadequate and that it leads to an
erroneous conclusion.
o judicial review may involve a constitutional law component and an administrative law component
o "an administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order
that infringes the Charter"
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o The administrative law standard of review is not applicable to the constitutional component of judicial review
it is the compliance of the commissioners' decision with the requirements of the Canadian Charter that is central to
this appeal, not the decision's validity from the point of view of administrative law
There is no suggestion that the council of commissioners did not have jurisdiction, from an administrative law
standpoint, to approve the Code de vie. Nor, it should be noted, is the administrative and constitutional validity of the
rule against carrying weapons and dangerous objects in issue
o Rather, the appellant argues that it was in applying the rule, that is, in categorically denying Gurbaj Singh the
right to wear his kirpan, that the governing board, infringed Gurbaj Singh's freedom of religion under the
Canadian Charter
The complaint is based entirely on this constitutional freedom.
o The Court of Appeal therefore erred in applying the reasonableness standard to its constitutional analysis.
o The administrative law standard of review was not relevant.
o Moreover, if this appeal had instead concerned the review of an administrative decision based on the
application and interpretation of the Canadian Charter, it would, according to the case law of this Court, have
been necessary to apply the correctness standard (Martin v NS (WCB))
Thus, it is the constitutionality of the decision that is in issue in this appeal, which means that a constitutional analysis
must be conducted
My colleagues believe that the Court should address the issue of justification under s. 1 only where a complainant is
attempting to overturn a normative rule as opposed to a decision applying that rule
o In my opinion, consistency in the law can be maintained only by addressing the issue of justification under s.
1 regardless of whether what is in issue is the wording of the statute itself or its application. I will explain this
 There is no question that the Canadian Charter applies to the decision of the council of
commissioners, despite the decision's individual nature. The council is a creature of statute and
derives all its powers from statute. Since the legislature cannot pass a statute that infringes the
Canadian Charter, it cannot, through enabling legislation, do the same thing by delegating a power to
act to an administrative decision maker
In the case at bar, no one is suggesting that the council of commissioners failed to act in accordance with its enabling
legislation. It is thus necessary to determine, as the Court did in Slaight Communications, whether the council of
commissioners' decision infringes, as alleged, Gurbaj Singh's freedom of religion.
According to the CSMB, freedom of religion has not been infringed, because it has internal limits. The CSMB
considers that, in the instant case, the freedom of religion guaranteed by s. 2(a) must be limited by imperatives of
public order, safety, and health, as well as by the rights and freedoms of others.
o According to this line of reasoning, the outcome of this appeal would be decided at the stage of determining
whether freedom of religion has been infringed rather than at the stage of reconciling the rights of the parties
under s. 1 of the Canadian Charter.
This Court has clearly recognized that freedom of religion can be limited when a person's freedom to act in
accordance with his or her beliefs may cause harm to or interfere with the rights of others
o However, the Court has on numerous occasions stressed the advantages of reconciling competing rights by
means of a s. 1 analysis.
In the case at bar, the Court does not at the outset have to reconcile two constitutional rights, as only freedom of
religion is in issue here. Furthermore, since the decision genuinely affects both parties and was made by an
administrative body exercising statutory powers, a contextual analysis under s. 1 will enable us to balance the relevant
competing values in a more comprehensive manner
This Court has frequently stated, and rightly so, that freedom of religion is not absolute and that it can conflict with
other constitutional rights. However, since the test governing limits on rights was developed in Oakes, the Court has
never called into question the principle that rights are reconciled through the constitutional justification required by s.
1 of the Canadian Charter.
In Amselem, the Court ruled that, in order to establish that his or her freedom of religion has been infringed, the
claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion,
and (2) that the impugned [page280] conduct of a third party interferes, in a manner that is non-trivial or not
insubstantial, with his or her ability to act in accordance with that practice or belief
Deschamps and Abella (concurring in result)
In our view, the case is more appropriately decided by recourse to an administrative law review than to a
constitutional law justification.
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Two main reasons dictate that an administrative law review be conducted.
o First, the purpose of constitutional justification is to assess a norm of general application, such as a statute or
regulation. The analytical approach developed uniquely for that purpose is not easily transportable where
what must be assessed is the validity of an administrative body's decision, even on a human rights question.
 In such a case, an administrative law analysis is called for.
o Second, basing the analysis on the principles of administrative law averts the problems that result from
blurring the distinction between the principles of constitutional justification and the principles of
administrative law, and prevents the impairment of the analytical tools developed specifically for each of
these fields.
Simply put, it is difficult to conceive of an administrative decision being permitted to stand if it violates the Canadian
Charter.
o The administrative body's decisions can, indeed must, be judicially reviewed in accordance with the principles
of administrative law where they do not have the normative import usually associated with a law
With respect, we do not believe that Martin established a rule that simply raising an argument based on human rights
makes administrative law inapplicable, or that all decisions contested under the Canadian Charter or provincial
human rights legislation are subject to the correctness standard.
o In Martin, the correctness standard applied because the decision concerned the Workers' Compensation
Board's authority to determine the validity of a provision of its enabling statute under the Canadian Charter.
In the case at bar, the Court must determine the standard of deference to be applied to the school board's decision,
which had an impact on freedom of religion, the right to equality and the right to physical inviolability. We see no
reason to depart from the approach taken in T.W.U. and Chamberlain
The Education Act, R.S.Q., c. I-13.3, contains no privative clause limiting intervention by the courts. However, the
authority to establish rules of conduct in educational institutions is clearly conferred on the governing board by s. 76,
while s. 12 authorizes the council of commissioners to reconsider a decision of the governing board
The establishment of an internal appeal mechanism suggests that the [page304] legislature intended to leave the power
to make decisions to local stakeholders. Furthermore, the issue in the case at bar is not limited to interpreting the
scope of the protection of the student's right to freedom of religion under ss. 2(a) and 15 of the Canadian Charter and
ss. 3 and 10 of the Quebec Charter
The assessment of the facts is therefore of considerable importance.
If the reasonableness standard applied in Chamberlain, there is even more reason to conclude that it applies in the
instant case because of the factual element associated with determinations of safety requirements
The Court of Appeal focused on the kirpan's inherent dangerousness. This approach fails to take account of the other
facts that were presented. It is true that the kirpan, considered objectively and without the protective measures
imposed by the Superior Court, is an object that fits the definition of a weapon
The Court of Appeal's approach also disregards the strict conditions imposed by the Superior Court. No student is
allowed to carry a "knife". The young Sikh is authorized to wear his kirpan, which, while a kind of "knife", is above
all a religious object whose dangerous nature is neutralized by the many coverings required by the Superior Court.
The kirpan must be enclosed in a wooden sheath and the sheath must be sewn inside a cloth envelope, which must
itself be attached to a shoulder strap worn under the student's clothing. Secured in this way, the kirpan is almost totally
stripped of its objectively dangerous characteristics. Access to the kirpan is not merely delayed, as was the case with
the first offer made by the father and the student, it is now fully impeded by the cloth envelope sewn around the
wooden sheath. In these circumstances, the argument relating to safety can no longer reasonably succeed.
The changes in the standard of review cannot be disregarded just because the decision maker also has to deal with an
argument based on human rights
Decisions by administrative bodies were originally reviewed using two standards, jurisdictional error and patent
unreasonableness
The emphasis is now on the deference owed to administrative bodies. Over the past few years, the Court has even
insisted that a single analytical approach be used for all administrative decision makers
In our opinion, the administrative law approach must be retained for reviewing decisions and orders made by
administrative bodies. A constitutional justification analysis must, on the other hand, be carried out when reviewing
the validity or enforceability of a norm such as a law, regulation, or other similar rule of general application. We also
note the words of Dickson C.J. who, writing for the majority in Slaight, refused to accept the approach proposed by
Lamer J. as the definitive one, stating (at p. 1049):
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The precise relationship between the traditional standard of administrative law review of patent
unreasonableness and the new constitutional standard of review will be worked out in future cases
o A minimal proposition would seem to be that administrative law unreasonableness, as a preliminary standard
of review, should not impose a more onerous standard upon government than would Charter review
While administrative bodies do have the power and the duty to take the values protected by the Canadian Charter into
account, it does not follow that their decisions must be subjected to the justification process under s. 1 of the
Canadian Charter
More than 15 years have passed since Dickson C.J. stated that the relationship between the administrative law
standard of review and the constitutional law standard would be worked out in future cases. The contrast between the
approach taken by the Court in T.W.U. and Chamberlain and the one adopted by the majority in the instant case, as
well as the ambiguity of the parties' arguments in the case at bar, are clear signs of the uncertainty [page309] resulting
from the unified analytical approach proposed by Lamer J. We therefore consider it necessary to review Lamer J.'s
approach to determine whether it is useful and appropriate
it is difficult to imagine a decision that would be considered reasonable or correct even though it conflicted with
constitutional values. Given the demanding nature of the standard of judicial review to be met where an administrative
body fails to consider constitutional values, the result can be no different
In short, not only do we think that this Court's past decisions do not rule out the applicability of an administrative law
approach where an infringement of the Canadian Charter is argued, we also disagree with an approach that involves
starting with a constitutional review in such a case.
An administrative body determines an individual's rights in relation to a particular issue. A decision or order made by
such a body is not a law or regulation, but is instead the result of a process provided for by statute and by the
principles of administrative law in a given case. A law or regulation, on the other hand, is enacted or made by the
legislature or by a body to which powers are delegated. The norm so established is not limited to a specific case. It is
general in scope. Establishing a norm and resolving a dispute are not usually considered equivalent processes. At first
glance, therefore, equating a decision or order with a law, as Lamer J. does in Slaight, seems anomalous
To include administrative decisions in the concept of "law" therefore implies that it is necessary in every case to begin
by assessing the validity of the statutory or regulatory provision on which the decision is based. This indicates that the
expression "law" is used first and foremost in its normative sense
The fact that justification is based on the collective interest also suggests that the expression "law" should be limited
to rules of general application
To suggest that the decisions of administrative bodies must be justifiable under the Oakes test implies that the
decision makers in question must incorporate this analysis into their decision-making process. This requirement
makes the decision-making process formalistic and distracts the reviewing court from the objective of the [page314]
analysis, which relates instead to the substance of the decision and consists of determining whether it is correct
(T.W.U.) or reasonable
An administrative decision maker should not have to justify its decision under the Oakes test, which is based on an
analysis of societal interests and is better suited, conceptually and literally, to the concept of "prescribed by law". That
test is based on the duty of the executive and legislative branches of government to account to the courts for any rules
they establish that infringe protected rights. The Oakes test was developed to assess legislative policies. The duty to
account imposed -- conceptually and in practice -- on the legislative and executive branches is not easily applied to
administrative tribunals
The same reasoning applies in the context of administrative law. Like the courts, administrative tribunals are bound
by the Canadian Charter, their enabling legislation and the statutes they are specifically responsible for applying.
Like the courts, they cannot be treated as parties with an interest in a dispute. A tribunal's decision should not be
subject to a justification process as if it were a party to a dispute
We accordingly believe that the expression "law" should not include the decisions of administrative bodies. Such
decisions should be reviewed in accordance with the principles of administrative law, which will both allow claimants
and administrative bodies to know in advance which rules govern disputes and help prevent any blurring of roles
The mechanisms of administrative law are flexible enough to make it unnecessary to resort to the justification process
under s. 1 of the Canadian Charter when a complainant is not attempting to strike down a rule or law of general
application
Our comments do not mean that we believe the Court must always exclude the s. 1 approach. That approach remains
the only one available to demonstrate that an infringement of a right resulting from a law, in the normative sense of
that expression, is consistent with the values of a free and democratic society. However, where the issue concerns the
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validity or merits of an administrative body's decision, resorting to this justification process is unnecessary because of
the specific tools that have been developed in administrative law.
The apparent overlap between the concepts of minimal impairment and reasonable accommodation is another striking
example of the need to preserve the distinctiveness of the administrative law approach
The case law on reasonable accommodation developed mainly in the context of the application of human rights
legislation to private disputes
the Court developed a mechanism that permits a balance to be struck between the requirements of the enforcement of
a right or freedom and the constraints imposed by a given environment. This duty, which is more than a mere bona
fide occupational requirement, was extended in Meiorin to all cases of direct or indirect discrimination, and in
Grismer to all persons governed by human rights legislation.
The process required by the duty of reasonable accommodation takes into account the specific details of the
circumstances of the parties and allows for dialogue between them. This dialogue enables them to reconcile their
positions and find common ground tailored to their own needs
The justification of the infringement is based on societal interests, not on the needs of the individual parties. An
administrative law analysis is microcosmic, whereas a constitutional law analysis is generally macrocosmic. The
values involved may be different. We believe that there is an advantage to keeping these approaches separate
Furthermore, although the minimal impairment test under s. 1 of the Canadian Charter is similar to the undue
hardship test in human rights law, the perspectives in the two cases are different, as is the evidence that can support
the analysis. Assessing the scope of a law sometimes requires that social facts or the potential consequences of
applying the law be taken into account, whereas determining whether there is undue hardship requires evidence of
hardship in a particular case
Constitutional values have breathed new life into the Civil Code of Québec, S.Q. 1991, c. 64, the common law and
legislation in general. Courts and administrative tribunals must uphold them, as must Parliament and the legislatures.
However, the same rules should not apply to the review of legislative action as to the review of the exercise of
adjudicative authority.
Administrative law review has been designed to scrutinize administrative boards' decisions. Administrative law
review has become a full-fledged branch of the law. Its integrity should be preserved
If the Code de vie itself or one of its provisions had been challenged on the ground that it did not meet the minimal
impairment standard, a s. 1 analysis would have been appropriate. But the appellant did not challenge it. When the
validity of a rule of general application is not in question, the mechanisms of administrative law are called for. This
approach makes it possible to avoid the blurring of concepts or roles and enhances the proper application of both
administrative and human rights law.
Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3
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One of the issues at stake was a ministerial decision to deport someone who was a danger to the security of Canada
even when there was a possibility of torture
Judgment  The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand
stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an everwidening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively
meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our
democratic society -- liberty, the rule of law, and the principles of fundamental justice -- values that lie at the heart of
the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a
Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament's
challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and
our international commitments
We conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter.
The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act
accordingly
The Standard of Review
The issues of the constitutionality of the deportation provisions of the Immigration Act do not involve review of
ministerial decision-making. The fourth issue of the adequacy of the procedures under the Act will be considered
separately later in these reasons. At this point, our inquiry is into the standard of review to be applied to the second
and third issues -- the Minister's decisions on whether Suresh poses a risk to the security of Canada and whether he
faces a substantial risk of torture on deportation.
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The first question is what standard should be adopted with respect to the Minister's decision that a refugee constitutes
a danger to the security of Canada.
o We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question
and should set aside the Minister's discretionary decision if it is patently unreasonable in the sense that it was
made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the
appropriate factors.
o The court should not reweigh the factors or interfere merely because it would have come to a different
conclusion.
This conclusion is mandated by Pushpanathan which reviewed the principles for determining the standard of review
according to the functional and pragmatic approach.
o In Pushpanathan, the Court emphasized that the ultimate question is always what the legislature intended. One
looks to the language of the statute as well as a number of factors to determine that intention. Here the
language of the Act (the Minister must be "of the opinion" that the person constitutes a danger to the security
of Canada) suggests a standard of deference.
o So, on the whole, do the factors to be considered: (1) the presence or absence of a clause negating the right of
appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation
generally; and (4) the nature of the question
The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister's s. 53(1)(b)
opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s.
82.1(1)), and that leave decision may not itself be appealed
The second factor, the relative expertise of the decision-maker, again favours deference  Minister entitled to
deference
The third factor -- the purpose of the legislation -- again favours deference
Finally, the nature of the case points to deference.
o The inquiry is highly fact-based and contextual. As in Baker, supra, at para. 61, the s. 53(1)(b) danger opinion
"involves a considerable appreciation of the facts of that person's case, and is not one which involves the
application or interpretation of definitive legal rules", suggesting it merits a wide degree of deference.
These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion,
reviewable only where the Minister makes a patently unreasonable decision. It is true that the question of whether a
refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human
interests. However, it is our view that a deferential standard of ministerial review will not prevent human rights issues
from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to
deport meets the constitutional requirements of the Charter
The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was
necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions
o To the extent this Court reviewed the Minister's discretion in that case, its decision was based on the
ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives
of the Act, international treaty obligations and, most importantly, a set of published instructions to
immigration officers
The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this
context.
o It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not
authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing
process, but draws on an established line of cases concerning the failure of ministerial delegates to consider
and weigh implied limitations and/or patently relevant factors
The court's task, if called upon to review the Minister's decision, is to determine whether the Minister has exercised
her decision-making power within the constraints imposed by Parliament's legislation and the Constitution.
o If the Minister has considered the appropriate factors in conformity with these constraints, the court must
uphold his decision.
o It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion
As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question.
o The threshold question here is in large part a fact-driven inquiry.
o It requires consideration of the human rights record of the home state, the personal risk faced by the claimant,
any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the
home state to control its own security forces, and more
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We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture,
as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister's
decision.
o The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not
supported by the evidence or fails to consider the appropriate factors.
o It must be recognized that the nature of the evidence required may be limited by the nature of the inquiry
Before leaving the issue of standard of review, it is useful to underline the distinction between standard of review and
the evidence required to establish particular facts in issue.
o For example, some authors suggest a lower evidentiary standard may govern decisions at entry (under ss. 2
and 19 of the Act) than applies to decisions to deport a landed Convention refugee under s. 53(1)(b):
 This does not imply different standards of review.
 Different administrative decisions involve different factors, stemming from the statutory scheme and
the particular issues raised. Yet the same standard of review may apply.
We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those
decisions.
If the Minister has considered the correct factors, the courts should not reweigh them.
o Provided the s. 53(1)(b) decision is not patently unreasonable -- unreasonable on its face, unsupported by
evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures -- it should
be upheld.
o At the same time, the courts have an important role to play in ensuring that the Minister has considered the
relevant factors and complied with the requirements of the Act and the Constitution.
Shell Canada Products Ltd. v. Vancouver (City) [1994] 1 SCR 231
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City had passed certain resolutions against using Shell products. Shell attacked the resolutions on three grounds but
the part in the book only deals with the issue of whether the city had used its power for an improper purpose
McLachlin (Lamer, L’Hereux-Dube, Gonthier, Dissenting)
This appeal raises the issue of whether the elected representatives of a municipality may vote to refuse to give the
municipality's business to a firm because of the conduct of the firm outside the municipality
The City's refusal to do business with Shell, standing alone, is not attacked, nor could it be.
o The City undoubtedly possesses a general power to buy its fuel from whomever it chooses.
o It is the reasons or motives for choosing not to deal with Shell which are attacked.
o They are attacked on the ground that they relate to the conduct of Shell outside the City, and hence to matters
that are irrelevant to municipal concerns.
o The decision not to deal with Shell, valid in itself, is said to become invalid because it was made for purposes
which are beyond the power of the City.
As will become apparent, I take the view that this case requires us to consider the appropriate approach to judicial
review of municipal decisions.
o Broadly speaking, two approaches may be drawn from the cases: a narrow confining approach, and a broader
more deferential approach.
o My colleague Justice Sopinka, as I understand his reasons, takes a narrow view of municipal powers and a
strict approach to judicial review of municipal decisions.
o I advocate a more generous view of municipal powers and a more deferential approach to judicial review.
o In my view, the latter approach is the better of the two, having regard both to the authorities and to the
modern conception of cities and municipalities
Are the Resolutions Subject to JR?
The assumption that government procurement is immune from judicial review rests on the traditional view that
contract law is wholly in the realm of private law
o In more recent times, however, some courts have been willing to review governmental contractual powers
Against allowing judicial review of the purchasing power of governments is the argument that these are matters of
private law. According to the private law of contract, each person, individual or corporate, has the right to contract
with whom it chooses, and on the terms it chooses
o Adding weight to the argument that government purchasing decisions should be immune from judicial review
is the potential for excessive litigation, which may in turn result in significant inconvenience to the public
through a disruption of the procurement process.
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In favour of allowing judicial review of the procurement or purchasing power of governments is the argument that
while this principle is valid for private contracts, the public nature of municipalities renders it inapplicable to them
o The most important difference is the fact that municipalities undertake their commercial and contractual
activities with the use of public funds.
o Another consideration justifying different treatment of public contracting is the fact that a municipality's
exercise of its contracting power may have consequences for other interests not taken into account by the
purely consensual relationship between the council and the contractor.
o For example, public concerns such as equality of access to government markets, integrity in the conduct of
government business, and the promotion and maintenance of community values require that the public
procurement function be viewed as distinct from the purely private realm of contract law.
o Finally, it must be remembered that municipalities, unlike private individuals, are statutory creations, and
must always act within the legal bounds of the powers conferred upon them by statute.
o In particular, council members cannot act in pursuit of their own private interests, but must exercise their
contractual powers in the public interest
On balance, it is my view that the doctrine of immunity from judicial review of procurement powers should not apply
to municipalities. If a municipality's power to spend public money is exercised for improper purposes or in an
improper manner, the conduct of the municipality should be subject to judicial review
The Proper Scope of JR
Judicial review of municipal decisions is necessary. It is important that municipalities not assume powers which have
not been conferred on them, that they not violate civil liberties, that disputes between them and other statutory bodies
be resolved, and that abuses of power are checked.
o On the other hand, it is important that the courts not unduly confine municipalities in the responsible exercise
of the powers which the legislature has conferred on them
o The two different approaches to construction of municipal powers alluded to earlier confronts us at this point:
 The first approach is the narrow construction -- pro-interventionist approach
 Ontario Court of Appeal in Merritt v. City of Toronto
 Municipal corporations, in the exercise of the statutory powers conferred upon them to make
by-laws, should be confined strictly within the limits of their authority, and all attempts on
their part to exceed it should be firmly repelled by the Courts
 The second approach is a more liberal approach
 City of Hamilton v. Hamilton Distillery Co
 I think the sections are, considering the subject matter and the intention obviously in view,
entitled to a broad and reasonable if not, as Lord Chief Justice Russell said in Kruse v.
Johnson [[1898] 2 Q.B. 91], at p. 99, a "benevolent construction," and if the language used
fell short of expressly conferring the powers claimed, but did confer them by a fair and
reasonable implication I would not hesitate to adopt the construction sanctioned by the
implication.
This Court has pronounced, on at least one occasion, in favour of a generous approach to the construction of
municipal powers
o Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those
powers which are explicitly conferred upon them by a provincial statute (Greenbaum)
Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal
bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for
the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its
powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must
be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers
by reasonable implication.
Such an approach serves a number of purposes which the narrow interventionist approach does not.
o First, it adheres to the fundamental axiom that courts must accord proper respect to the democratic
responsibilities of elected municipal officials and the rights of those who elect them.
 This is important to the continued healthy functioning of democracy at the municipal level. If
municipalities are to be able to respond to the needs and wishes of their citizens, they must be given
broad jurisdiction to make local decisions reflecting local values.
o Second, a generous approach to municipal powers will aid the efficient functioning of municipal bodies and
avoid the costs and uncertainty attendant on excessive litigation.
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Excessive judicial interference in municipal decision-making can have the unintended and
unfortunate result of large amounts of public funds being expended by municipal councils in the
attempt to defend the validity of their exercise of statutory powers.
 The object of judicial review of municipal powers should be to accord municipalities the autonomy to
undertake their activities without judicial interference unless clearly warranted
o Thirdly, a generous approach to municipal powers is arguably more in keeping with the true nature of modern
municipalities
 Excessive judicial interference in the decisions of elected municipal councils may, as this case
illustrates, have the effect of confining modern municipalities in the straitjackets of tradition
 From the perspective of particular individuals and interest groups, the public interest may be
conceived differently and, as amongst them, views of the public interest will inevitably
conflict. A council making its decision on the public interest will identify and weigh a wide
variety of competing considerations: the demands of various interested parties, the advice of
its experts, data from its own research resources. And it will undoubtedly be influenced by
the preferences expressed by the electorate. The decision is ultimately a matter of choice and
what a council decides is necessarily its own collective perception of the public interest.
o Finally, the broader, more deferential approach to judicial intervention in the decisions of municipalities is
more in keeping with the flexible, more deferential approach this Court has adopted in recent cases to the
judicial review of administrative agencies
The Court has repeatedly stressed the need for sensitivity to context and to the special expertise of tribunals. Where
such expertise is established, deference may be warranted even to a tribunal's interpretation of its statutory powers
There can be little justification for holding decisions on the welfare of the citizens by municipal councillors to a
higher standard of review than the decisions of non-elected statutory boards and agencies.
These considerations lead me to conclude that courts should adopt a generous, deferential standard of review toward
the decisions of municipalities
Nevertheless, many courts have continued to take a narrow, interventionist approach to municipal decisions
Expressing this notion another way, it could be argued, by analogy to judicial review of administrative tribunals, that
unless a municipality's interpretation of its power is "patently unreasonable", in the sense of being coloured by bad
faith or some other abuse, the interpretation should be upheld.
For the purposes of the present case, however, I find it sufficient to suggest that judicial review of municipal decisions
should be confined to clear cases. The elected members of council are discharging a statutory duty. The right to
exercise that duty freely and in accordance with the perceived wishes of the people they represent is vital to local
democracy. Consequently, courts should be reluctant to interfere with the decisions of municipal councils. Judicial
intervention is warranted only where a municipality's exercise of its powers is clearly ultra vires, or where council has
run afoul of one of the other accepted limits on municipal power.
Were the Resolutions Beyond the City’s Powers?
The first Resolution in issue on this appeal, the Resolution not to do business with Shell until it stops trading with
South Africa, clearly can be defended under the power of the City to engage in commercial and business activities.
The City needs fuel. Fuel may be purchased from a variety of firms. This means that the City must of necessity
discriminate between suppliers of fuel, as Sopinka J. concedes (at p. 282). The City and its agents doubtless make
thousands of similar decisions each month, without any suggestion that the City must justify the reason why it
chooses one firm over another
The attack on this Resolution as well as on the second Resolution is based solely on the motives that led to its
adoption. It is said the motives for choosing other companies over Shell are unrelated to the business of the City and
that these improper purposes render the otherwise legitimate decision invalid
The actions of a statutory body or municipality can be said to be beyond its powers in one of two ways. First, it may
be alleged that the action itself is beyond the authority's powers. Second, it may be alleged that while the action is
within the municipality's powers, the purpose for which the action was taken was outside the municipality's powers,
thereby rendering the action itself invalid. This case falls into the second category.
The law governing review under this head is sometimes referred to as the "doctrine of improper purposes".
This doctrine has been applied to municipalities as well as to administrative agencies
Nevertheless, application of the doctrine of improper purposes to municipal authorities remains problematic.
Municipal legislation is governmental legislation, effected by duly elected representatives. It is often difficult to
determine precisely what considerations may have led to the passage of legislation
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While administrative boards give reasons expressly explaining the basis of their decision, this is not the case for
governmental bodies.
He went on to state that as a general rule the motives of governments enacting subordinate legislation should not be
inquired into.
A number of Canadian courts have rejected the notion that municipal legislation, short of evidence of bad faith,
should be invalidated on the ground that it was passed for improper purposes, particularly in cases where the
municipality can be seen as expressing the moral view of its citizens.
In Quebec, it has been held that in the absence of fraud, corruption or oppression, courts will not look behind a by-law
to learn the motive
In Ontario, it was stated, per Middleton J., that "[w]ith regard . . . to all questions which arise regarding matters which
have or are supposed to have some relation to morals or social questions, nothing could be more dangerous than any
attempt to enter upon the motives and reasons which have actuated the legislative body"
a case might be made that the court on this appeal should not inquire into the motives of the City of Vancouver in
deciding not to deal with Shell. That question, however, need not be decided on this appeal, since I am satisfied that in
any event, the motives of the City of Vancouver cannot be said to have exceeded the powers which the Legislature
has conferred on it.
The question is whether City Council's motives in this case fall outside the area of the City's legitimate concern. The
Vancouver Charter empowers Council to "provide for the good rule and government of the city": s. 189. My colleague
and I agree that this clause permits Vancouver City Council to enact measures for the benefit or welfare of the
inhabitants of the City. We part company on what this phrase includes
My colleague adopts a narrow view of the welfare of the inhabitants of the City
o He asserts that the City's Resolutions effect a purpose "without any identifiable benefit to its inhabitants" (p.
280) and speaks of "matters external to the interests of the citizens" (p. 279).
o He appears to define "municipal purposes" essentially in terms of provision of basic services to the
inhabitants of the City
I would cast the proper functions of a municipality in a larger mould.
o The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs,
but also the psychological welfare of the citizens as members of a community who have an interest in
expressing their identity as a community.
o Our language recognizes this: we speak of civic spirit, of city pride. This suggests that City Council may
properly take measures related to fostering and maintaining this sense of community identity and pride.
Among such measures may be found community expression of disapproval or approval of different types of
conduct, wherever it is found.
o The right of free expression, one of the most fundamental values of our society, may be exercised individually
or collectively. Are the citizens of a city to be prevented from expressing through their elected representatives
their disapproval of conduct which they feel to be improper? Are they to be forced to do business with a firm
whose conduct they see as objectionable, simply because the conduct occurs outside the territorial boundaries
of the city? Can the desire of the citizens' elected representatives to express their views on such matters and to
withdraw support for the conduct to which they object by refusing to do business with its perpetrators be said
to be totally unrelated to the welfare and interests of the citizens of the city?
o To all these questions I would answer no.
A number of considerations support this view. The first is the need, referred to earlier, to adopt a generous approach
toward municipal legislation. Courts should not be quick to substitute their views for those of elected council
members on what will best serve the welfare of the city's citizens. That is the responsibility of the elected councillors.
Unless they have clearly gone beyond the city's powers, the courts should not interfere
The second consideration supporting this view is the wording of the Vancouver Charter. As I read it, it amply
supports a broad view of the City's proper concerns. The Council is to "provide for the good rule and government of
the city": s. 189. These words are not restricted to the provision of services. They are broad enough to encompass
expression of community concerns about what is happening outside the community's boundaries.
even if the expression of collective values was not traditionally seen as a function of municipal authorities, the
growing sophistication and stature of a contemporary city such as Vancouver requires that the scope of "municipal
purposes" be determined with reference to this current reality.
Nor can I agree that the fact that the Vancouver Charter authorizes the City to participate in public works projects
with other municipalities and to acquire property for City purposes indicates the intent that in no other cases may the
Council consider matters or events outside the boundaries of the City. These provisions seem to me not to be directed
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at the issue of territorial boundaries, so much as to defining the sorts of activities the municipality can engage in,
wherever they may take place
Finally, I cannot agree with my colleague that the phrase "good rule and government of the city" (p. 278) places a
territorial limit on the factors which Council may consider in making decisions which are within its express power to
make. The phrase is capable of encompassing matters outside the City's boundaries, provided they relate to the
welfare of its citizens
The truth of the matter is that provisions in municipal Acts for the "good government" or general welfare of the
citizens, far from being mere surplusage as my colleague suggests, found their origin in the desire of legislatures to
prevent the decisions of municipal councillors being struck down by the courts. If the courts interpret them narrowly,
they will defeat the very purpose for which these provisions were enacted
Even accepting that lower courts have held that these phrases must be read "subject to the general intent and purport
of legislation respecting municipal institutions" (Rogers, supra, 63.35, at p. 366), the fact remains that legislatures
introduce clauses such as these for the very purpose of permitting municipalities themselves to decide what is in the
best interests of their citizenry
A third consideration supporting a broader view of the City's powers is the fact that many other municipalities
interpret their mandate in similar terms. The City of Vancouver does not stand alone in its view that the welfare of its
citizens extends to action based on the community's moral views about what may be happening outside the
municipality
Clearly many municipalities share the view that the welfare of the citizens of a city extends to declining to do business
with companies whose conduct the citizenry finds to be morally unacceptable
Sopinka (LaForest, Cory, Iacobucci, Major)
The respondent submits that the Resolutions are not law enacted by it pursuant to its legislative powers but rather an
exercise of its corporate power and hence not reviewable by the court. A variant of this argument is that if the
Resolutions are a legal emanation of Council, since the same result could have been achieved by simply refusing to
deal with Shell in awarding contracts, the court should not interfere. This latter argument applies only to the first
Resolution
The powers of a municipality are classified for some purposes.
o The classifications include legislative functions, quasi-judicial functions and business functions.
o The nature of the function may affect the duties and liabilities of the municipality.
 Accordingly, it may be liable in contract or tort in respect of its business function but civil liability in
respect of its legislative or quasi-judicial function is problematic. In its quasi-judicial function,
Council may have a duty of fairness which does not apply in respect of the exercise of its legislative
powers
As creatures of statute, however, municipalities must stay within the powers conferred on them by the provincial
legislature
It follows that the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent
of determining whether the actions are intra vires. Normally this is done by a motion to quash or a declaration of
invalidity with respect to the act of Council which is impugned. The authorities referred to in argument do not support
the contention that the exercise of business or corporate powers is immune from review.
Moreover, there does not appear to be any valid policy ground for providing such immunity. There is good reason to
encourage municipalities to act within their statutory powers. An absence of judicial review would leave some
ratepayers without an effective remedy
The public policy in favour of restricting a municipality to its statutory powers exists as much for the minority as for
the majority.
The City of Vancouver took action herein by passing resolutions. Clearly this was a purported exercise of its statutory
powers
A resolution is an act which binds Council and municipal officers and officials until repealed
I do not appreciate the force of the argument that the respondent could have accomplished its purpose in some other
fashion which would have been immune from judicial review
Impermissible Purpose
Generally, a municipal authority is authorized to act only for municipal purposes
The "purposes of the corporation" or "municipal purposes" are determined by reference to not only those that are
expressly stated but those that are compatible with the purpose and objects of the enabling statute
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In most cases, as here, the problem arises with respect to the exercise of a power that is not expressly conferred but is
sought to be implied on the basis of a general grant of power. It is in these cases that the purposes of the enabling
statute assume great importance
I must, therefore, determine whether the Resolutions were passed for a municipal purpose.
o Their purpose is amply defined in the preambles and the operative parts of the Resolutions.
o The explicit purpose is to influence Shell to divest in South Africa by expressing moral outrage against the
apartheid regime and to join the alleged international boycott of its subsidiaries and products until Shell
"completely withdraws from South Africa".
o There is no mention as to how the good government, health or welfare of the City or its citizens is affected or
promoted thereby.
 Specifically, there is no mention of any objective of improving relations among its citizens.
 In view of the detailed recital of the purposes of the Resolutions, no such implicit purpose can be read
in.
 The fourth recital hints at the existence of a broader program to control with whom the City does
business.
 It refers to doing business with South Africa as one of the criteria to be employed.
 There is, however, no evidence that such a program exists and, indeed, its existence is contradicted by
the fact that the City continued to purchase from Chevron.
 I therefore agree with the trial judge that the respondent was seeking to use its powers to do business
"to affect matters in another part of the world" (pp. 348-49), a purpose which is directed at matters
outside the territorial limits of the City.
Clearly there is no express power in the Vancouver Charter authorizing the Resolutions and if they are valid the
respondent must rely on such powers being implied
No doubt Council can have regard for matters beyond its boundaries in exercising its powers but in so doing any
action taken must have as its purpose benefit to the citizens of the City.
o The Vancouver Charter is careful to expressly provide for activities in which Council is permitted to engage
outside of its limits even when such activities clearly redound to the benefit of the inhabitants of the City.
Such activities include participation in public works projects with other municipalities (s. 188) and acquiring
property required for the purposes of the City
Any powers implied from their general language must be restricted to municipal purposes and cannot extend to
include the imposition of a boycott based on matters external to the interests of the citizens of the municipality
Professional Licensing and the Relevancy Principle
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Legislative Schemes that create statutory monopolies for, and regulate entry to, the professions often provide that, in
addition to satisfying standards of competence, applicants for registration must be of good character
After admission a member may be subject to disciplinary proceedings for engaging in conduct unbecoming a member
of the profession
Responsibility for elaborating these vague and open-ended standards is normally left to the governing body of the
profession often subject to a right of appeal to the courts
A recognition that those rights are conferred to protect the public rather than to boost the image of the profession by
no means eliminates all the potential difficulties in deciding whether a particular factor is legally relevant to the power
to exclude from registration or discipline
Failure to consider relevant factors
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Failing to take into account a relevant factor is equally a basis for impugning the vires of an agency’s discretion
although there is some doubt as to its scope
o On one view the doctrine requires decision makers to assemble for consideration all the factors that they may
lawfully take into account when exercising their discretion
o A more limited and plausible version is that, while an agency may lawfully consider a large number of factors
in the exercise of a discretionary power, it is required to consider only some of them
 An act of discretion will therefore only be ultra vires only if the agency has overlooked a factor that
its enabling statute expressly, or more usually, impliedly obliged it to consider
o Whether a particular factor was one that the agency had to take into account in exercising its discretion should
be determined by reference to its importance to the discharge of its statutory mandate
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Since Baker it is now clear that international law will have to be taken into account in the exercise of statutory and
prerogative powers
Where an agency has considered irrelevant factors it is usually because the court has rejected the agency’s
interpretation
However where the agency has failed to consider relevant factors it sometimes means that it has failed to consider
evidence that would have established whether a legally relevant fact existed
Oakwood Developments  municipality did not allow for subdivision of land for residential development for fear of
flooding  Court overturned because the municipality failed to consider an engineer’s report that some things could
be done to lower the risk of flooding and also since the right affected was of people’s right of free alienation of land
Multiple Purposes and Consideration
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Where there are multiple purposes and only one is improper then usually things will be allowed to stand so long as the
improper purpose or consideration was not the dominant one or did not play a material role in the exercise of the
discretion
Purpose and Proof
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How does an applicant for JR prove for what purpose an administrative agency exercised a statutory discretion
o Reasons are one way  where they are available
o Where a decision seems suspiciously unlawful the reviewing court may infer from the decision itself an
unlawful purpose
o Where the agency has first received a report prior to the exercise of discretion the reviewing court may use
any recommendations in the report as evidence of purpose
Problems of proof seem to be especially difficult where the discretion is exercised by multi-member agencies such as
in Shell  city council
Prerogative Powers and Non-Justiciability
Operation Dismantle Inc. v Canada [1985] 1 SCR 441
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Dickson  Appellants alleged that a decision made by the Government of Canada to allow the United States to test
cruise missiles in Canada violated s. 7 of the Charter. The development of the cruise missile, it was argued,
heightened the risk of nuclear war and the increased American military presence and interest in Canada as a result of
the testing allegedly made Canada more likely to be a target for nuclear attack. Declaratory relief, an injunction and
damages were sought
It is apparent, however, that the violation of s. 7 alleged turns upon an actual increase in the risk of nuclear war,
resulting from the federal cabinet's decision to permit the testing of the cruise missile. Thus, to succeed at trial, the
appellants would have to demonstrate, inter alia, that the testing of the cruise missile would cause an increase in the
risk of nuclear war. It is precisely this link between the Cabinet decision to permit the testing of the cruise and the
increased risk of nuclear war which, in my opinion, they cannot establish
Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of
evidence, to any degree of certainty approaching probability, the nature of such reactions can only be a matter of
speculation; the causal link between the decision of the Canadian government to permit the testing of the cruise and
the results that the appellants allege could never be proven
all of its allegations, including the ultimate assertion of an increased likelihood of nuclear war, are premised on
assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of
radical uncertainty, and continually changing circumstances, will react to the Canadian government's decision to
permit the testing of the cruise missile.
Rather, I wish to highlight that they are raising matters that, in my opinion, lie in the realm of conjecture, rather than
fact. In brief, it is simply not possible for a court, even with the best available evidence, to do more than speculate
upon the likelihood of the federal cabinet's decision to test the cruise missile resulting in an increased threat of nuclear
war
I do not believe the alleged violation -- namely, the increased threat of nuclear war -- could ever be sufficiently linked
as a factual matter to the acknowledged duty of the government to respect s. 7 of the Charter
Wilson  Since there is no reason in principle to distinguish between cabinet decisions made pursuant to statutory
authority and those made in the exercise of the royal prerogative, and since the former clearly fall within the ambit of
the Charter, I conclude that the latter do so also.
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Le Dain and Ryan JJ. in the Federal Court of Appeal were of the opinion that the issues involved in this case are
inherently non-justiciable, either because the question whether testing the cruise missile increases the risk of nuclear
war is not susceptible of proof and hence is not triable (per Ryan J.) or because answering that question involves
factors which are either inaccessible to a court or are of a nature which a court is incapable of evaluating (per Le Dain
J.).
It is trite law that on a motion to strike out a statement of claim the plaintiff's allegations of fact are to be taken as
having been proved. Accordingly, it is arguable that by dealing with the case as they have done Le Dain and Ryan JJ.
have, in effect, made a presumption against the appellants which they are not entitled, on a preliminary motion of this
kind, to make.
I am not convinced, however, that Le Dain and Ryan JJ. were restricting the concept of non-justiciability to
difficulties of evidence and proof
Action by the state or, conversely, inaction by the state will frequently have the effect of decreasing or increasing the
risk to the lives or security of its citizens. It may be argued, for example, that the failure of government to limit
significantly the speed of traffic [page489] on the highways threatens our right to life and security in that it increases
the risk of highway accidents. Such conduct, however, would not, in my view, fall within the scope of the right
protected by s. 7 of the Charter
At the very least, it seems to me, there must be a strong presumption that governmental action which concerns the
relations of the state with other states, and which is therefore not directed at any member of the immediate political
community, was never intended to be caught by s. 7 even although such action may have the incidental effect of
increasing the risk of death or injury that individuals generally have to face.
But even accepting this allegation of fact as true, which as I have already said I think we must do on a motion to
strike, it is my opinion for the reasons given above that this state of affairs could not constitute a breach of s. 7.
Moreover, I do not see how one can distinguish in a principled way between this particular risk and any other danger
to which the government's action vis-à-vis other states might incidentally subject its citizens. A declaration of war, for
example, almost certainly increases the risk to most citizens of death or injury. Acceptance of the appellants'
submissions, it seems to me, would mean that any such declaration would also have to be regarded as a violation of s.
7. I cannot think that that could be a proper interpretation of the Charter
If, for example, testing the cruise missile posed a direct threat to some specific segment of the populace -- as, for
example, if it were being tested with live warheads -- I think that might well raise different considerations
the facts alleged in the statement of claim, even if they could be shown to be true, could not in my opinion constitute a
violation of s. 7.
Similar concerns have arisen in cases where litigants have relied on s.7 to challenge extradition to stand trial in other
countries on the grounds that they would not receive the same procedural protections as they would in Canada 
Schmidt (1987)
Black v Canada (Prime Minister) (2001), 54 OR (3d) 215 (CA)
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The main question on the appeal was whether the prerogative power exercised by PM Chretien to advise the Queen on
the conferral of honours was reviewable at all in the courts. The court said yes
Apart from the Charter, the expanding scope of judicial review and of Crown liability make it no longer tenable to
hold that the exercise of a prerogative power is insulated from judicial review merely because it is a prerogative and
not a statutory power
the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its
subject matter, not its source.
the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals
o If the executive in pursuance of the statutory power does an act affecting the rights of the citizen, it is beyond
question that in principle the manner of the exercise of that power may today be challenged on one or more of
the three grounds which I have mentioned earlier in this speech
two ways in which the exercise of a prerogative power may affect the rights of an individual: by altering the
individual's legal rights and obligations or by affecting the individual's legitimate expectations
Prime Minister Chrétien was not giving legal advice or making an administrative decision. Focusing on wrong legal
advice or the improper interpretation of a policy misses what this case is about. As I see it, the action of Prime
Minister Chrétien complained of by Mr. Black is his giving advice to the Queen about the conferral of an honour on a
Canadian citizen. The Prime Minister communicated Canada's policy on honours to the Queen and advised her against
conferring an honour on Mr. Black.
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So characterized, it is plain and obvious that the Prime Minister's exercise of the honours prerogative is not judicially
reviewable
The refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important
individual interests are at stake. Unlike the refusal of a peerage, the refusal of a passport or a pardon has real adverse
consequences for the person affected. Here, no important individual interests are at stake. Mr. Black's rights were not
affected, however broadly "rights" are construed. No Canadian citizen has a right to an honour
And no Canadian citizen can have a legitimate expectation of receiving an honour. In Canada, the doctrine of
legitimate expectations informs the duty of procedural fairness; it gives no substantive rights:
Here Mr. Black does not assert that he was denied procedural fairness. Indeed, he had no procedural rights.
But even if the doctrine of legitimate expectations could give substantive rights, neither Mr. Black nor any other
Canadian citizen can claim a legitimate expectation of receiving an honour. The receipt of an honour lies entirely
within the discretion of the conferring body. The conferral of the honour at issue in this case, a British peerage, is a
discretionary favour bestowed by the Queen. It engages no liberty, no property, no economic interests. It enjoys no
procedural protection. It does not have a sufficient legal component to warrant the court's intervention. Instead, it
involves "moral and political considerations which it is not within the province of the courts to assess".
The Jurisdiction of Tribunals and the Constitution
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Four questions about the allocation of functions between courts and tribunals when a constitutional issue arises from
a dispute that is within the jurisdiction of a statutory court or tribunal
o Do administrative agencies have jurisdiction to decide Charter or other constitutional challenges to the
validity of the legislation that they administer or do only the courts have this power
o The second and third questions arise if a positive answer is given to the first
 Must a litigant resort exclusively to, or at least exhaust the statutory remedies before going to the
courts
 May administrative agencies grant constitutional remedies and can they ever be a court of competent
jurisdiction for the purposes of s.24(1) of the Charter
o The final question is about the standard of review that should apply when an administrative agency
legitimately makes a pronouncement on a constitutional question or provides a constitutional remedy
The constitutional jurisdiction of tribunals to decide constitutional challenges
It is clear that tribunals, in exercising their statutory powers, should take the constitution into account
o It is a principle of statutory interpretation that legislatures are presumed not to authorize unconstitutional
conduct
But what if a party to a proceeding argues that the legislation is invalid  for example that it is ultra vires?
o Does the administrative tribunal have the power to determine this question
o If not then it must presumably either adjourn the proceeding so that a court can rule on the matter or proceed
on the assumption that its legislation is valid
Many tribunals have been faced with these questions  an indication of their practical importance is that that SCC
has visited this question on four separate occasions (and is about to do so again ????)
Cooper v Canada (Human Rights Commission [1996] 3 SCR 854
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Issue was about mandatory retirement provisions of Air Canada  requiring pilots to retire at age 60
Lamer
tribunals which have jurisdiction over the general law, have jurisdiction to refuse to apply - and hence effectively to
render inoperative - laws that they find to be unconstitutional, since through the operation of s. 52 of the Constitution
Act, 1982, the Constitution is the supreme law of Canada
In Canada, the decisions of our democratic institutions are subject to judicial review, which allows courts to strike
down the enactments of those legislatures when those enactments contradict constitutional norms. Although judicial
review is necessary to preserve important constitutional values, in a democracy like Canada it is inherently
controversial, because it confers on unelected officials the power to question decisions which are arrived at through
the democratic process. For this reason, in my view, as a matter of constitutional principle that power must be
reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose
members are usually vulnerable to removal with every change of government, and whose decisions in some
circumstances are made within the parameters of guidelines established by the executive branch of government.
in my opinion, s. 52 can only be used by the courts of this country, because the task of declaring invalid legislation
enacted by a democratically elected legislature is within the exclusive domain of the judiciary. I should make it very
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clear at the outset of my reasons that I am not addressing the role of administrative tribunals in relation to s. 24(1) of
the Canadian Charter of Rights and Freedoms
The intent to confer on tribunals a power to interpret general law in turn implies an intent to confer on tribunals a
power to refuse systematically to apply laws which violate the Charter - is suspect. I say that for two reasons. One is
that such an inference is artificial
Moreover, inferring the power to refuse systematically to apply laws which violate the Charter from the power to
interpret and apply the general law strikes me as profoundly illogical. A legislature could only intend to confer on a
tribunal the power to judge the constitutionality of that tribunal's enabling legislation if the legislature had knowingly
passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary
if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law,
it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the
responsibility of giving effect to that legislation the power to hold various provisions of the legislation inoperative.
Surely, a legislature intent on passing a constitutionally suspect law would not plant within that law the seeds of its
own demise.
Separation of Powers
The centrality of courts to determinations of constitutional validity suggests that no other bodies should exercise this
function. Indeed, this Court openly acknowledged in Cuddy Chicks that a tribunal could not make a declaration of
invalidity, because it was not a court
the Court in that case (Cuddy Chicks) rejected the view that when a tribunal refuses to apply its enabling legislation
for the purposes of the proceeding before it, it effectively makes a declaration of invalidity
The de facto equivalence between refusals to apply and declarations of invalidity decisively demonstrates that
tribunals, when they refuse to apply their enabling legislation under s. 52 of the Constitution Act, 1982, are
improperly exercising the role of the courts. As a result, the decisions of this Court which authorize tribunals to
overstep their constitutional role, in my opinion, are in serious need of revision
I would even go so far as to say that tribunals cannot be expressly given the power to consider the constitutionality of
their enabling legislation, for the same reasons.
I must emphasize that this conclusion does not detract from the power of the Commission to determine whether
complaints fall within federal jurisdiction according to the division of powers
there is an important conceptual difference between the Commission's interpreting its enabling legislation in light of
the division of powers, and the Commission's questioning the validity of that legislation in light of the Charter
As well, nothing I have said should be construed as detracting from the general duty to interpret statutes in light of
Charter values.
if there is some ambiguity with respect to the meaning or scope of a statutory provision, then it should be interpreted
in the manner which is most consistent with the Charter and the values underlying that document
Parliamentary Democracy
The assumption by administrative tribunals of jurisdiction over the Charter does no less than to invert this hierarchical
relationship.
Instead of being subject to the laws of the legislature, the executive can defeat the laws of the legislature. On each
occasion that this occurs, a tribunal has disrupted the proper constitutional relationship between it and the legislature.
Indeed, I would go so far as to say that a tribunal has, in these circumstances, unconstitutionally usurped power which
it did not have.
For the reasons stated above, I concur with La Forest J. in his disposition of these appeals
Laforest (Sopinka, Gonthier and Iacobucci)
If the Commission had found that there was some uncertainty regarding the constitutionality of s. 15(c) of the Act,
and as a result sent the matter to a tribunal, the Commission would have effectively found s. 15(c) to be inoperative.
For, if s. 15(c) is valid, it operates to deny the Commission jurisdiction to refer the appellants' complaint to a tribunal;
it is trite law that the Commission has no other jurisdiction than that granted to it by Parliament. There is no middle
ground: either s. 15(c) is operative and the Commission has no jurisdiction, there being no discriminatory practice; or
the section is inoperative and the Commission does have jurisdiction.
Therefore the question before this Court is a straightforward one: does the Commission, and in turn a tribunal
appointed under the Act, have the power to find a provision of the Act unconstitutional and treat it as inoperative?
In three previous cases, Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra, this Court has
had the opportunity to address the principles underlying an administrative tribunal's jurisdiction to consider the
constitutionality of its enabling statute.
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These authorities make it clear that no administrative tribunal has an independent source of jurisdiction pursuant to s.
52(1) of the Constitution Act, 1982. Rather, the essential question facing a court is one of statutory interpretation -has the legislature, in this case Parliament, granted the administrative tribunal through its enabling statute the power to
determine questions of law?
o s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be
inconsistent with the Charter. Rather, the inquiry must begin with an examination of the mandate given to the
particular tribunal by the legislature
If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) that it must
be able to address constitutional issues, including the constitutional validity of its enabling statute. This principle was
clearly enunciated by this Court in Cuddy Chicks
There is no doubt that the power to consider questions of law can be bestowed on an administrative tribunal either
explicitly or implicitly by the legislature.
All the parties agree that there is no provision in the Act that expressly confers on the Commission a general power
to consider questions of law.
There being no such express authority, it becomes necessary to determine whether Parliament has granted it implicit
jurisdiction to consider such questions
o In considering whether a tribunal has jurisdiction over the parties, the subject matter before it, and the remedy
sought by the parties, it is appropriate to take into account various practical matters such as the composition
and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the
expertise of the tribunal
The Scheme of the Act
o Is a familiar one from earlier cases
The Jurisdiction of the Commission
With the exception to be noted later, there is no explicit provision in the Act giving to the Commission power to
determine questions of law.
Nor is there anything in the scheme of the Act to imply that the Commission has this power.
Looking at the Act as a whole it is evident that the role of the Commission is to deal with the intake of complaints and
to screen them for proper disposition
The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act.
When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a
screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission
to determine if the complaint is made out.
Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts.
The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it.
The striking down of s. 15(c) by the Commission, which is what a referral to a tribunal in the present case would
amount to, would be an assumption by the Commission of an adjudicative role for which it has no mandate.
When Parliament has failed to vest an administrative body with such a jurisdiction (which is the case here), then it
is not the role of a court to create such jurisdiction.
Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be
respected
Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling
statute. If this were not the case, it would be at the mercy of the parties before it and would never be the master of its
own proceedings
counsel for the Commission focused on the obligation and power granted to the Commission in s. 41(c) of the Act to
refuse to deal with a complaint beyond its jurisdiction.
o In particular he argued that because in exercising this power the Commission often determines whether a
given complaint falls within the federal sphere pursuant to the constitutional division of powers, then it
followed that the Commission had jurisdiction to consider constitutional questions in general.
o I am unable to accept this. When deciding whether a complaint falls within its jurisdiction the Commission is
bound to look to its enabling statute for the limits of that jurisdiction. Thus it is well accepted that the
Commission only has jurisdiction over a complaint when it is in respect to an activity or undertaking within
the federal sphere. In making such a determination the Commission must obviously make reference to the
constitutional division of powers.
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In determining what is a discriminatory practice the Commission is bound by s. 15(c) which states that job
termination at the normal age of retirement is not a discriminatory practice.
The role of the Commission as an administrative and screening body, with no appreciable and adjudicative role, is a
clear indication that Parliament did not intend the Commission to have the power to consider questions of law.
Practical Considerations
In the present case the practical advantages in having the Commission consider the constitutionality of its own statute
are limited.
o First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to
address fundamental constitutional issues.
 As this Court has previously found, there is no requirement for anything more than a "paper hearing"
for the parties before the Commission.
 Although I readily acknowledge that the informal and accessible process of administrative bodies
may well be a considerable advantage to a party, as compared to the regular court system, there
comes a point where a body such as the Commission simply does not have the mechanism in place to
adequately deal with multifaceted constitutional issues.
o A second and more telling problem in the case of the Commission is its lack of expertise
 a human rights tribunal, unlike a labour arbitrator or labour board, has no special expertise with
respect to questions of law. What is true of a tribunal is even more true of the Commission which, as
was noted in Mossop, is lacking the adjudicative role of a tribunal.
o To my mind the relevant practical considerations do not argue in favour of having the Commission consider
Charter issues. Without question there is on the surface an attraction and efficiency, at least for the
complainant, in having the constitutional matter first heard by the Commission. That will always be so,
however, and in the present situation I am of the view that the reality would in fact be different.
o It would be more efficient, both to the parties and to the system in general, to have a complainant seek a
declaration of constitutional invalidity in either the Federal Court or a provincial superior court. In such a
setting the question can be debated in the fullness it requires and the proper expertise can be brought to bear
on its resolution.
The Jurisdiction of the Tribunal Under the Act
Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its
enabling statute, it logically follows that a tribunal appointed under the Act, and indeed a review tribunal appointed
pursuant to s. 56, must also lack the jurisdiction to declare unconstitutional a limiting provision of the Act.
As with the Commission there is no explicit power given to a tribunal to consider questions of law.
However, unlike the Commission, it is implicit in the scheme of the Act that a tribunal possess a more general power
to deal with questions of law. Thus tribunals have been recognized as having jurisdiction to interpret statutes other
than the Act and as having jurisdiction to consider constitutional questions other than those noted above.
o In particular, it is well accepted that a tribunal has the power to address questions on the constitutional
division of powers on the validity of a ground of discrimination under the Act and it is foreseeable that a
tribunal could entertain Charter arguments on the constitutionality of available remedies in a particular case.
Even in such instances, however, the legal findings of a tribunal receive no deference from the courts. This
position was firmly established by this Court in Mossop
 The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human
rights context. It does not extend to general questions of law such as the one at issue in this case.
These are ultimately matters within the province of the judiciary, and involve concepts of statutory
interpretation and general legal reasoning which the courts must be supposed competent to perform
I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter arguments.
o First, as already noted, a tribunal does not have any special expertise except in the area of factual
determinations in the human rights context.
o Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the
inevitable judicial review proceeding is brought in the Federal Court.
o Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights
complaint determination but is inappropriate when addressing the constitutionality of a legislative provision.
o Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a
tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating
the tribunals, i.e., the efficient and timely adjudication of human rights complaints
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To conclude, the Canadian Human Rights Commission has no jurisdiction under the Canadian Human Rights Act to
subject provisions of that statute to constitutional scrutiny. The Commission is limited in its jurisdiction by the
dictates of the Act. Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to
determine the constitutional validity of limiting provisions of the Act
Would dismiss the appeals
McLachlin (L’Heureux-Dube  dissenting)
In my view, every tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The
fact that the question of law concerns the effect of the Charter does not change the matter. 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
If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these
tribunals.
If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it.
But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of
counter-indications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of
its enabling statute unconstitutional.
It behooves this Court to ask why every party with a stake in the matter urges this Court to find that the Human Rights
Commission may deal with the issue of the constitutionality of the "normal age of retirement" exemption in one way
or another.
The answer, I venture to suggest, is that this is the result which best achieves the economical and effective resolution
of human rights disputes and best serves the values entrenched in the Canadian Human Rights Act and the Charter.
Nor does the process the majority envisions serve the employer; while the employer may be better able to bear the
legal expense of a litigation detour than the appellants, the process may never provide an answer to the question of
whether its policy violates the Canadian Human Rights Act. Unless the private complainants muster courage and
enough money to pursue a collateral court challenge to the Canadian Human Rights Act, the employer will not know
what policy is required to conform to the law and the Charter
Finally, the Canadian public is ill-served by the process proposed by the majority on this appeal. Unless and until
private individuals mount a successful court challenge under the Charter, administrative agencies like the Canadian
Human Rights Commission must proceed to deal with people's rights as though the Charter had never been enacted. If
and when the Charter issue is brought before the courts, it will be decided in a vacuum. Under the majority's
suggested process of a declaratory action in Federal Court, there will be no factual record or tribunal findings to assist
the courts in deciding whether or not to declare that the impugned section of Canadian Human Rights Act offends the
Charter
Nova Scotia (Worker’s Compensation Board) v. Martin [2003] 2 SCR 504
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Chronic pain syndrome and related medical conditions have emerged in recent years as one of the [page514] most
difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative
definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time
for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective
findings at the site of the injury under current medical techniques
since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have
been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even
physicians. Ruth Laseur and Donald Martin are the appellants in this case. Both suffer from the disability of chronic
pain.
Courts are not the appropriate forum for an evaluation of the available medical evidence concerning chronic pain for
general scientific purposes. Nevertheless, because disability is an enumerated ground in s. 15(1) of the Canadian
Charter of Rights and Freedoms, the question whether the way in which a government handles chronic pain in
providing services amounts to discrimination is a proper subject of judicial review. More specifically, these appeals
concern the constitutional validity of s. 10B of the Nova Scotia Workers' Compensation Act, S.N.S. 1994-95, c. 10, as
amended by S.N.S. 1999, [page515] c. 1 (the "Act"), and of the Functional Restoration (Multi-Faceted Pain Services)
Program Regulations, N.S. Reg. 57/96 (the "FRP Regulations"), adopted under that Act. These provisions exclude
chronic pain from the purview of the regular workers' compensation system and provide, in lieu of the benefits
normally available to injured workers, a four-week Functional Restoration (Multi-Faceted Pain Services) Program
(the "Functional Restoration Program") beyond which no further benefits are available. A preliminary issue is whether
the Nova Scotia Workers' Compensation Appeals Tribunal (the "Appeals Tribunal"), an administrative tribunal set up
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to hear appeals from decisions of the Workers' Compensation Board of Nova Scotia (the "Board"), had jurisdiction to
decline to apply the challenged provisions to the appellants on the ground that these provisions violate the Charter
In my view, the Nova Scotia Court of Appeal erred in concluding that the Appeals Tribunal did not have
jurisdiction to consider the constitutionality of the challenged provisions of the Act and the FRP Regulations
I am of the view that the rules concerning the jurisdiction of administrative tribunals to apply the Charter established
by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, Cuddy Chicks Ltd. v. Ontario (Labour
Relations Board), and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), ought to be
reappraised and restated as a clear set of guidelines. Administrative tribunals which have jurisdiction -- whether
explicit or implied -- to decide questions of law arising under a legislative provision are presumed to have
concomitant jurisdiction to decide the constitutional validity of that provision.
o This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter
issues from the tribunal's authority over questions of law.
o To the extent that the majority reasons in Cooper v. Canada (Human Rights Commission), , are inconsistent
with this approach, I am of the view that they should no longer be relied upon.
Here, the Nova Scotia legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law
The Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the challenged provisions,
a jurisdiction which is presumed to include the authority to consider their constitutional validity.
o This presumption is not rebutted in this case, as there is no clear implication arising from the Act that the
legislature intended to exclude the Charter from the scope of the Appeals Tribunal's authority
In my view, the Nova Scotia Court of Appeal also erred in concluding that the challenged provisions of the Act and
the FRP Regulations did not violate s. 15(1) of the Charter
o the Act and the FRP Regulations clearly impose differential treatment upon injured workers suffering from
chronic pain on the basis of the nature of their physical disability, an enumerated ground under s. 15(1) of the
Charter.
o In the context of the Act, and given the nature of chronic pain, this differential treatment is discriminatory. It
is discriminatory because it does not correspond to the actual needs and circumstances of injured workers
suffering from chronic pain, who are deprived of any individual assessment of their needs and circumstances.
o Such workers are, instead, subject to uniform, limited benefits based on their presumed characteristics as a
group
Finally, I am of the view that this violation cannot be justified under s. 1 of the Charter.
o On the one hand, budgetary considerations in and of themselves cannot justify violating a Charter right,
although they may be relevant in determining the appropriate degree of deference to governmental choices
based on a non-financial objective.
o On the other hand, developing a consistent legislative response to the special issues raised by chronic pain
claims -- such as determining whether the pain is actually caused by the work-related accident and assessing
the relevant degree of impairment -- in order to avoid fraudulent claims is a pressing and substantial objective.
o However, it is obvious that the blanket exclusion of chronic pain from the workers' compensation system does
not minimally impair the rights of chronic pain sufferers. The challenged provisions make no attempt
whatsoever to determine who is genuinely suffering and needs [page518] compensation and who may be
abusing the system. They ignore the very real needs of the many workers who are in fact impaired by chronic
pain and whose condition is not appropriately remedied by the four-week Functional Restoration Program
Judgments Below
In its preliminary decision on jurisdiction in the Martin appeal, rendered on August 27, 1999, the Appeals Tribunal
held that it had jurisdiction to make determinations of all questions of law, including whether the Act or the FRP
Regulations violated the Charter
o The Appeals Tribunal found that the Act and Regulations violated s.15 of the Charter
On appeal to the NS court of appeal the decision was overturned with the court saying that the Tribunal did not have
jurisdiction
Stated that the relevant inquiry was whether the legislature intended [page524] to confer on the tribunal the power to
interpret and apply the Charter, an intention that should generally not be inferred from the tribunal's authority simply
to interpret and apply its own enabling statute. What was needed, in his view, was a grant of authority to the tribunal
to interpret or apply "any law necessary to [reaching] its findings", to address "general questions of law", or to "apply
the law of the land to the disputes before them" (para. 93). In the absence of an express grant, one may be implied
from the statutory scheme and the role of the tribunal. A key consideration is whether the tribunal performs an
adjudicative function
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Concluded that the Board lacked the authority to refuse to apply a provision of the Act on Charter grounds
Cromwell J.A. found that, since the Appeals Tribunal's jurisdiction was to "confirm, vary or reverse" the decision of
the Board, the latter's lack [page525] of jurisdiction to apply the Charter destroyed the underpinning of the
submission that the former was empowered to do so.
allowing the Appeals Tribunal to decide constitutional questions could increase its workload and cause delays which
parties to other cases would have to bear. This would contradict the objective of eliminating the previous backlog of
cases, the objective propelling the 1999 chronic pain amendments
On the Charter issue  the appropriate comparison was between workers subject to the Act who have chronic pain
and have suffered functional limitation, wage loss or permanent impairment and workers subject to the Act who do
not have chronic pain and have suffered functional limitation, wage loss or permanent impairment.
went on to find that there was clear differential treatment in Mr. Martin's case
Turning to the substantive discrimination analysis, Cromwell J.A. first held that nothing in the record indicated that
chronic pain sufferers have been victims of historical disadvantage or stereotyping distinct from that experienced by
other disabled workers seeking compensation. As to the relationship between the benefits, the claimants'
circumstances and the ameliorative purpose of the impugned law, he found that in the context of a large-scale no-fault
compensation scheme, it would be unrealistic to insist upon perfect correspondence.
also found the interest affected by the denial of benefits to be merely economic in nature
Based on these findings, he concluded that the chronic pain provisions did not demean the human dignity of the
claimants and thus did not violate s. 15(1). Consequently, it was not necessary to address arguments relating to s.
15(2) or s. 1.
Issues
Does the Nova Scotia Workers' Compensation Appeals Tribunal have the authority to refuse to apply, on Charter
grounds, benefits provisions of its enabling statute?
Jurisdiction of the Appeals Tribunal to Apply the Charter  The Policy Adopted By the Court in the Trilogy
On each occasion, the Court emphasized the strong reasons, of principle as well as policy, for allowing administrative
tribunals to make such determinations and to refuse to apply a challenged provision found to violate the Constitution.
First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "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".
o The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being
declared unconstitutional by a court, but from the operation of s. 52(1).
 Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration
to this effect is but one remedy amongst others to protect those whom it adversely affects.
o In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative
enactment. Courts may not apply invalid laws, and the same obligation applies to every level and branch of
government, including the administrative organs of the state.
o Obviously, it cannot be the case that every government official has to consider and decide for herself the
constitutional validity of every provision she is called upon to apply.
o If, however, she is endowed with the power to consider questions of law relating to a provision, that power
will normally extend to assessing the constitutional validity of that provision.
 This is because the consistency of a provision with the Constitution is a question of law arising under
that provision.
o It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the
enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded
"there cannot be a Constitution for arbitrators and another for the courts"
forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of
proceedings.
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. Tribunals and commissions charged
with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than
by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of
these tribunals.
Second, Charter disputes do not take place in a vacuum.
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They require a thorough understanding of the objectives of the legislative scheme being challenged, as well as
of the practical constraints it faces and the consequences of proposed constitutional remedies. This need is
heightened when, as is often the case, it becomes necessary to determine whether a prima facie violation of a
Charter right is justified under s. 1. In this respect, the factual findings and record compiled by an
administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional
challenge, will often be invaluable to a reviewing court
Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard:
see Cuddy Chicks, supra, at p. 17.
o An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a
superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do
not include general declarations of invalidity.
o A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is
not binding on future decision makers, within or outside the tribunal's administrative scheme.
o Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of
a legislative provision for all future cases.
o Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the
courts as final arbiters of constitutionality in Canada.
This Court has adopted a general approach for the determination of whether a particular administrative tribunal or
agency can decline to apply a provision of its enabling statute on the ground that the provision violates the Charter.
o This approach rests on the principle that, since administrative tribunals are creatures of Parliament and the
legislatures, their jurisdiction must in every case "be found in a statute and must extend not only to the subject
matter of the application and the parties, but also to the remedy sought": Douglas College, supra, at p. 595;
see also Cuddy Chicks, supra, at pp. 14-15.
o When a case brought before an administrative tribunal involves a challenge to the constitutionality of a
provision of its enabling statute, the tribunal is asked to interpret the relevant Charter right, apply it to the
impugned [page532] provision, and if it finds a breach and concludes that the provision is not saved under s.
1, to disregard the provision on constitutional grounds and rule on the applicant's claim as if the impugned
provision were not in force.
Since the subject matter and the remedy in such a case are premised on the application of the Charter, the question
becomes whether the tribunal's mandate includes jurisdiction to rule on the constitutionality of the challenged
provision: see Douglas College, supra, at p. 596; Cuddy Chicks, supra, at p. 15.
o This question is answered by applying a presumption, based on the principle of constitutional supremacy
outlined above, that all legal decisions will take into account the supreme law of the land. Thus, as a rule, "an
administrative tribunal which has been conferred the power to interpret law holds a concomitant power to
determine whether that law is constitutionally valid":
I am of the view that it is now time to reappraise the case law and to provide a single set of rules concerning the
jurisdiction of administrative tribunals to consider Charter challenges to a legislative provision
A New Way Forward?  starting at ¶35
Question #1 The Power to Determine Questions of Law
the first question to be addressed is whether the administrative tribunal at issue has jurisdiction, explicit or implied, to
decide questions of law arising under the challenged provision.
this question is one of legislative intent, it is crucial that the relevant intent be clearly defined
one must ask whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to
interpret or decide any question of law.
o If it does, then the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that
question in light of the Charter, unless the legislator has removed that power from the tribunal.
o Thus, an administrative tribunal that has the power to decide questions of law arising under a particular
legislative provision will be presumed to have the power to determine the constitutional validity of that
provision. In other words, the power to decide a question of law is the power to decide by applying only valid
laws.
It suffices that the legislator endow the tribunal with power to decide questions of law arising under the challenged
provision, and that the constitutional question relate to that provision
the relevant question in each case is not whether the terms of the express grant of jurisdiction are sufficiently broad to
encompass the Charter itself, but rather whether the express grant of jurisdiction confers upon the tribunal the power
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to decide questions of law arising under the challenged provision, in which case the tribunal will be presumed to have
jurisdiction to decide the constitutional validity of that provision.
The Charter is not invoked as a separate subject matter; rather, it is a controlling norm in decisions over matters
within the tribunal's jurisdiction.
In cases where the empowering legislation contains an express grant of jurisdiction to decide questions of law, there is
no need to go beyond the language of the statute. An express grant of authority to consider or decide questions of law
arising under a legislative provision is presumed to extend to determining the constitutional validity of that provision
Absent an explicit grant, it becomes necessary to consider whether the legislator intended to confer upon the tribunal
implied jurisdiction to decide questions of law arising under the challenged provision .
o Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the
statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this
mandate effectively; the interaction of the tribunal in question with other elements of the administrative
system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's
capacity to consider questions of law.
o Practical considerations, however, cannot override a clear implication from the statute itself, particularly
when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its
intended mandate.
o As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions
of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine
the constitutional validity of that provision.
Question #2 – Has the Power to Determine Question of Law Been Rebutted? (from ¶42)
Once this presumption has been raised, either by an explicit or implicit grant of authority to decide questions of law,
the second question that arises is whether it has been rebutted.
The burden of establishing this lies on the party who alleges that the administrative body at issue lacks jurisdiction to
apply the Charter.
In general terms, the presumption may only be rebutted by an explicit withdrawal of authority to decide
constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from
external considerations.
The question to be asked is whether an examination of the statutory provisions clearly leads to the conclusion that the
legislature intended to exclude the Charter, or more broadly, a category of questions of law encompassing the
Charter, from the scope of the questions of law to be addressed by the tribunal.
Applying the Approach
In applying the approach set out above, there is in my view no need to draw any distinction between "general" and
"limited" questions of law, as was admittedly done in Cooper, supra. An administrative body will normally either
have or not have the power to decide questions of law. As stated above, administrative bodies that do have that power
may presumptively go beyond the bounds of their enabling statute and decide issues of common law or statutory
interpretation that arise in the course of a case properly before them, subject to judicial review on the appropriate
standard
Absent a clear expression or implication of contrary intent, such administrative bodies will also have jurisdiction to
subject the statutory provisions over which they have jurisdiction to Charter scrutiny, while those tribunals without
power to decide questions of law will not.
Encapsulated Approach = ¶48
The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to
Charter scrutiny can be summarized as follows:
o (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide
questions of law arising under the challenged provision.
o (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority.
 (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will
include the statutory mandate of the tribunal in issue and whether deciding questions of law is
necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other
elements of the administrative system; whether the tribunal is adjudicative in nature; and practical
considerations, including the tribunal's capacity to consider questions of law.
 Practical considerations, however, cannot override a clear implication from the statute itself.
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(3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision,
this power will be presumed to include jurisdiction to determine the constitutional validity of that provision
under the Charter.
o (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by
 (a) pointing to an explicit withdrawal of authority to consider the Charter; or
 (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion
that the legislature intended to exclude the Charter (or a category of questions that would include the
Charter, such as constitutional questions generally) from the scope of the questions of law to be
addressed by the tribunal.
 Such an implication should generally arise from the statute itself, rather than from external
considerations.
Application to the Case
the explicit jurisdiction to determine questions of law would alone have been determinative.
The Appeals Tribunal's jurisdiction to decide questions of law arising under the challenged provisions is presumed to
include the authority to consider their constitutional validity. Is this presumption rebutted by other provisions of the
Act?
nothing in the Act produces the kind of clear implication capable of rebutting the presumption that the Appeals
Tribunal may consider the constitutionality of the Act that it is called upon to interpret and apply. The Appeals
Tribunal could properly consider and decide the Charter issue raised in this case because it could properly consider
and decide questions of law.
Went on to find that the provisions of the Act and regulations were discrimination and were not saved by s.1  were
not minimimallly impairing
Paul v British Columbia (Forest Appeals Commission) [2003] 2 SCR 585
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The issue in dispute is whether the Commission has jurisdiction to hear Mr. Paul's defence that he cut the trees and
possessed the logs in the exercise of his aboriginal rights. To this point, Mr. Paul has asserted his right but never
attempted to prove it. The issue is not whether provincial legislation can override an aboriginal right recognized and
affirmed by s. 35 of the Constitution Act, 1982.
The Commission had decided, as a preliminary matter of jurisdiction, that it was able to hear and determine the
aboriginal rights issues in the appeal
Pitfield J., the chambers judge, concluded that the Legislature of British Columbia had validly conferred on the
Commission the power to decide questions relating to aboriginal title and rights in the course of its adjudicative
function in relation to contraventions of the Code
majority of the Court of Appeal allowed the appeal: Lambert J.A. concluded that s. 91(24) of the Constitution Act,
1867, which gives Parliament exclusive power to legislate in relation to Indians, precluded the Legislature from
conferring jurisdiction on the Commission to determine questions of aboriginal title and rights in the forestry context
The majority of the Court of Appeal had also determined, as an alternative approach, that the Code ran afoul of the
doctrine of interjurisdictional immunity. The Court of Appeal reasoned that, since the existence and extent of
aboriginal title and aboriginal rights come within the essential core of "Indianness" a law granting quasi-judicial
jurisdiction to determine matters of aboriginal title and aboriginal rights intrudes upon the core of Indianness and is
therefore inapplicable to Indians.
Furthermore, held the majority, s. 88 of the Indian Act, R.S.C. 1985, c. I-5, which makes provincial laws of general
application apply to Indians, fails to invigorate the relevant portions of the Code, since s. 88 incorporates laws
respecting Indians, not land.
With respect, I think that the majority of the Court of Appeal misunderstood the scope of the doctrine of
interjurisdictional immunity.
o The doctrine relates to the exercise of legislative powers, that is, the power of a province to apply its valid
legislation that affects matters under federal competence.
The second prong of Mr. Paul's challenge deals with the Commission's statutory jurisdiction.
o The respondent argued that the enabling provisions of the Code were insufficient to empower the
Commission to decide the existence of aboriginal rights or title. Mr. Paul argues that the Legislature would
need to confer the power to determine such questions, even ones arising incidentally to forestry matters, upon
the Commission expressly.
In this case, s. 131(8) of the Code permits a party to "make submissions as to facts, law and jurisdiction".
o It is therefore clear that the Commission has power to determine questions of law.
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The Commission is not restricted to the issues considered by the Administrative Review Panel, the decision
maker appealed from.
o Any restriction on the Commission's remedial powers is not determinative, nor is the complexity of the
questions
As a law of general application, the Code applies ex proprio vigore to Indians, to the extent that it does not touch on
the "core of Indianness" and is not unjustifiably inconsistent with s. 35 of the Constitution Act, 1982.
o There is no need to consider whether s. 88 of the Indian Act would revive the statute and render it applicable.
The doctrine of incidental effects holds that where there is a valid provincial law of general application, the provincial
law applies if its effects upon matters within federal legislative competence are "merely incidental, irrelevant for
constitutional purposes":
The doctrine of interjurisdictional immunity is engaged when a provincial statute trenches, either in its entirety or in
its application to specific factual contexts, upon a head of exclusive federal power. The doctrine provides that, where
the general language of a provincial statute can be read to trench upon exclusive federal power in its application to
specific factual contexts, the statute must be read down so as not to apply to those situations
The question, then, is whether, in a valid law of general application, provisions that empower a provincially
constituted administrative tribunal to hear and rule upon arguments relating to aboriginal rights as they arise in
execution of its provincial mandate trench upon the core of Indianness.
o If so, those provisions will be inapplicable to Indians
The conclusion that a provincial board may adjudicate matters within federal legislative competence fits comfortably
within the general constitutional and judicial architecture of Canada.
o In determining, incidentally, a question of aboriginal rights, a provincially constituted board would be
applying constitutional or federal law in the same way as a provincial court, which of course is also a creature
of provincial legislation. At the hearing all parties agreed that a provincial court may determine s. 35 issues.
I believe the division of powers does not preclude a validly constituted provincial administrative tribunal, legislatively
empowered to do so, from determining questions of constitutional and federal law arising in the course of its work
I do not agree with the respondent that the conclusion in Pembina that a provincially constituted court could
determine questions of federal law [page602] implies, a contrario, that a provincially constituted administrative
tribunal cannot do so.
o First, while I need not decide this point, it is arguable that La Forest J.'s reference to "courts of inferior
jurisdiction" naturally includes an adjudicative tribunal such as the Commission
o Second, even if the statement in Pembina does not embrace the Commission, La Forest J. was speaking of the
jurisdiction of a small claims court, and I do not think he can be taken to have been pronouncing, by
implication, on broader questions.
o Third, the constitutional protection of judicial review of administrative tribunals, derived from s. 96 of the
Constitution Act, 1867, integrates administrative tribunals into the unitary system of justice
By performing judicial review of the decisions of administrative tribunals, superior courts play an important role in
assuring respect for the rule of law
While there are distinctions between administrative tribunals and courts, both are part of the system of justice.
Viewed properly, then, the system of justice encompasses the ordinary courts, federal courts, statutory provincial
courts and administrative tribunals.
It is therefore incoherent to distinguish administrative tribunals from provincial courts for the purpose of deciding
which subjects they may consider on the basis that only the latter are part of the unitary system of justice.
The conclusion sought by the respondent would pose intractable difficulties for administrative tribunals in the
execution of their tasks. A provincially constituted board cannot respect the division of powers under the Constitution
Act, 1867 if it is unable to take into account the boundary between provincial and federal powers
Indeed, a multitude of administrative tribunals, both provincial and federal, routinely make determinations respecting
matters within the competence of the other legislator. Provincial boards may have an express statutory mandate to
pronounce upon federal legislation
In short, in applying their enabling legislation, boards must take into account all applicable legal rules, both federal
and provincial.
o I therefore decline to accept the respondent's argument and its logical extension that the practices just
described are constitutionally impermissible
Further reasons persuade me to reject the respondent's general position that questions relating to aboriginal rights are
untouchable by a provincially created tribunal by virtue of their falling within federal legislative competence
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Unless otherwise specified, such as official language rights in the Charter particular to New Brunswick, every
right in the Constitution Act, 1982 applies to every province as well as to the federal government. Section 35
therefore applies to both provinces and the federal government. It is also established that one part of the
Constitution cannot abrogate another
o By virtue of s. 35, then, laws of the province of British Columbia that conflict with protected aboriginal rights
do not apply so as to limit those rights, unless the limitation is justifiable according to the test in Sparrow,
supra.
o I find it difficult to think that the Province cannot, when administering a provincial regulatory scheme,
attempt to respect its constitutional obligation by empowering an administrative tribunal to hear a defence of
aboriginal rights.
Sparrow stands for the proposition that government regulation, including provincial regulation, may, by legislation,
infringe an aboriginal right if that infringement is justified
I wish to reiterate a point acknowledged by the respondent himself, namely that a province lacks the constitutional
capacity to extinguish aboriginal rights and aboriginal title.
o This is because the clear and plain intent necessary to extinguish an aboriginal right would make a law one in
relation to Indians and Indian lands and thus ultra vires the province: Delgamuukw, supra, at para. 180.
I will now explain why, in two important respects, a determination by an administrative tribunal, such as the
Commission, is very different from both the extinguishment of a right and legislation in relation to Indians or
aboriginal rights
First, and most important, any adjudicator, whether a judge or a tribunal, does not create, amend or extinguish
aboriginal rights.
o Rather, on the basis of the evidence, a judicial or administrative decision maker may recognize the continued
existence of an aboriginal right, including its content and scope, or observe that the right has been properly
extinguished by a competent legislative authority.
o Of course the decision maker may also conclude on the evidence that the aboriginal right simply has not been
proven at all
o Admittedly, within the administrative state, the line between adjudication and legislation is sometimes
blurred.
o Administrative tribunals that develop and implement policy while adjudicating disputes, such as the
Competition Tribunal and a provincial Securities Commission, come to mind.
 Indeed, this Court's standard of review jurisprudence is sensitive to the deference that may be
appropriate where an expert tribunal is simultaneously adjudicating and developing policy, which
may sometimes be viewed as a legislative function
o There is, however, a crucial distinction between a board that has been empowered by valid legislation to make
policy within an area that is intra vires the enabling legislator, and a provincial board that is called upon, in
executing its mandate, to answer incidentally a legal question relating to the Constitution or to federal law.
 No one has suggested that the Legislature has the constitutional power to enable a board to determine
questions of aboriginal law on the basis of policy considerations favourable to the Province.
Second, while both provincially constituted courts and provincially constituted tribunals may consider the
Constitution and federal laws, there is nevertheless one important distinction between them that the respondent
overlooked.
o Unlike the judgments of a court, the Commission's decisions do not constitute legally binding precedents, nor
will their collective weight over time amount to an authoritative body of common law.
o They could not be declaratory of the validity of any law.
o Moreover, as constitutional determinations respecting s. 91(24) or s. 35, the Commission's rulings would
be reviewable, on a correctness basis, in a superior court on judicial review
determinations of the Commission respecting aboriginal rights would be reviewable on a correctness standard
a question of aboriginal law will arise only when a respondent raises an aboriginal right before the Commission in
seeking relief from a general prohibition or other regulatory provision in the Code.
o I do not see how, by raising a defence of aboriginal right, a respondent should be able to alter the primary
jurisdiction of the Commission or halt its proceedings.
o The nature of a particular defence should be seen as secondary to the Commission's primary jurisdiction.
o A person accused of violating the Code should not be able to oust the Commission's jurisdiction relating to
forestry simply by raising a particular defence and thereby highlighting a constitutional dimension of the main
issue.
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In any event, constitutional law doctrines aside, I think it would be most convenient for aboriginal persons to
seek the relief afforded by their constitutionally protected rights as early as possible within the mechanisms of
the administrative and judicial apparatus
I cannot see how the ability to hear a defence based on s. 35 would constitute an indirect intrusion on the defining
elements of "Indianness"
The respondent has failed to demonstrate that the procedural right to raise at first instance a defence of aboriginal
rights in a superior court, as opposed to before a provincially constituted tribunal, such as the Commission, goes to the
core of Indianness
I conclude, therefore, primarily on the basis that adjudication is distinct from legislation, that the Legislature of British
Columbia has the constitutional power to enable the Commission to determine questions relative to aboriginal rights
as they arise in the execution of its valid provincial mandate respecting forestry
Are s.35 Questions Distinct from other Constitutional Matters?
I note that there is no basis for requiring an express empowerment that [page610] an administrative tribunal be able to
apply s. 35 of the Constitution Act, 1982. There is no persuasive basis for distinguishing the power to determine s. 35
questions from the power to determine other constitutional questions, such as the division of powers under the
Constitution Act, 1867 or a right under the Charter
This Court has rejected the theory that Indian reserves are federal "enclaves" from which provincial laws are
excluded. Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative
tribunal from ruling, at first instance, on the border between those aboriginal rights and a provincial law of general
application.
o The arguments that s. 35 rights are qualitatively different -- that they are more complex, and require greater
expertise in relation to the evidence adduced -- have little merit
To the extent that aboriginal rights are unwritten, communal or subject to extinguishment, and thus a factual inquiry is
required, it is worth noting that administrative tribunals, like courts, have fact-finding functions. Boards are not
necessarily in an inferior position to undertake such tasks
A member of the Court asked counsel for the appellants whether the Commission would be able to determine whether
a person charged with an infraction was an Indian for the purposes of applying a superior court's declaration
delineating an aboriginal right.
o Counsel replied that that would simply be a factual determination and well within the Commission's
competency. She had no response, however, to the rejoinder that even ostensibly "factual" questions of
aboriginal status can routinely engage more complex questions of s. 35 and federal aboriginal rights.
o The nature of the question (fact, mixed fact and law, or law) assists in determining the standard of review for
decisions by administrative tribunals
there is no principled basis for distinguishing s. 35 rights from other constitutional questions
The Appropriate Test: the Power to Determine Questions of Law
the power of an administrative board to apply valid laws is the power to apply valid laws only to those factual
situations to which they are constitutionally applicable, or to the extent that they do not run afoul of s. 35 rights. This
Court's decision in Cooper, supra, has too easily been taken as suggesting that practical considerations relating to a
tribunal may readily overcome this presumption. I am of the view that the approach set out in Martin, in the context of
determining a tribunal's power to apply the Charter, is also the approach to be taken in determining a tribunal's power
to apply s. 35 of the Constitution Act, 1982
Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide
questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in
determining what is the most appropriate way of handling a particular dispute where more than one option is
available.
the power to find a statutory provision of no effect, by virtue of s. 52(1) of the Constitution Act, 1982, is distinct from
the remedial power to invoke s. 24(1) of the Charter
o an inferior court's remedial [page614] powers are not determinative of its jurisdiction to hear and determine
constitutional issues. In any case, s. 35 is part of the Constitution Act, 1982, but not of the Charter.
Accordingly, there is no issue whatsoever of remedies under s. 24(1) , and the Commission's remedial powers
are not before us in the present appeal
o where there is no express legislative intention to grant jurisdiction, jurisdiction may nonetheless be implied
from the structure of the tribunal's enabling legislation, the powers conferred on the tribunal, the function it
performs, and its overall context.
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Application of the Test
The Statutory Scheme
it is clear that the statutory mandate given to the Commission by the Code requires the Commission to determine
questions of law
o says so in the statute
where the litigant has the possibility of an administrative appeal before a body with the power to consider
constitutional arguments, the need for determination of the constitutional issue by the tribunal of original jurisdiction
is clearly less (p. 36). That conclusion would have been impossible if, as a general proposition, an appeals tribunal
could not consider issues not raised below
Tranchemontagne v Ontario (Director, Disability Support Program) [2006] 1 SCR 513
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Is the Social Benefits Tribunal ("SBT"), a provincially created statutory tribunal, obligated to follow provincial
human rights legislation in rendering its decisions? That is the question raised by this appeal
It is clear that the ODSPA and the OWA are meant to serve very different goals. The former statute is meant to ensure
support for disabled applicants, recognizing that the government shares in the responsibility of providing such support
(ODSPA, s. 1). The latter statute, on the other hand, seeks to provide only temporary assistance premised on the
concept of individual responsibility
The Director determined that the appellants were not entitled to benefits under the ODSPA regime. Following the
procedure set out in the ODSPA, the appellants requested an internal review of the Director's decision. Rejected at this
stage as well, the appellants then appealed to the intervener SBT
In both decisions, the SBT found that the appellants suffered from alcoholism. The SBT held alcoholism to be a
"disabling condition", in the case of the appellant Tranchemontagne, and a "substantial impairment" that
"substantially restricts" working ability, in the case of the appellant Werbeski. The SBT dismissed both appellants'
appeals
The appellants do not dispute that, if applicable, s. 5(2) functions to deny them support on the basis of their
alcoholism.
In front of the SBT, they each argued that they had impairments other than alcoholism; these arguments were rejected
and the SBT's findings have not been appealed to this Court.
But the appellants also argued that s. 5(2) was inapplicable by virtue of the Ontario Human Rights Code, R.S.O. 1990,
c. H.19 ("Code").
By purporting to refuse them support on the basis of their alcoholism, which the appellants assert is a disability within
the meaning of the Code, the appellants argued that s. 5(2) of the ODSPA constituted discrimination and was
therefore inapplicable because of the primacy of the Code over other legislation
Instead of analyzing this argument, the SBT held that it did not have the jurisdiction to consider the applicability of
s. 5(2) pursuant to the Code.
The appellants' appeals were therefore dismissed without the benefit of a ruling that their treatment was not
discriminatory
Divisional Court  agreed with the SBT that there was no provision for applying the OHRC
Court of Appeal  legislature did not remove the power to consider the OHRC and therefore the SBT had the power
to consider it and determine a provision of the ODSPA discriminatory inapplicable
o However held that the SBT was not the most appropriate forum for a HR complaint and dismissed the appeal
anyways
The Code is fundamental law.
The Ontario legislature affirmed the primacy of the Code in the law itself, as applicable both to private citizens and
public bodies.
Further, the adjudication of Code issues is no longer confined to the exclusive domain of the intervener the Ontario
Human Rights Commission ("OHRC"): s. 34 of the Code.
The legislature has thus contemplated that this fundamental law could be applied by other administrative bodies and
has amended the Code accordingly
The laudatory goals of the Code are not well served by reading in limitations to its application.
It is settled law that statutory tribunals empowered to decide questions of law are presumed to have the power to look
beyond their enabling statutes in order to apply the whole law to a matter properly in front of them.
o By applying this principle to the present appeal, it becomes clear that the SBT had the jurisdiction to
consider the Code in determining whether the appellants were eligible for support pursuant to the ODSPA.
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At that point, the SBT had the responsibility of applying the Code in order to render a decision that
reflected the whole law of the province.
Statutory tribunals like the SBT do not enjoy any inherent jurisdiction. It is therefore necessary to examine the
enabling statutes of the SBT in order to determine what powers it possesses
for an applicant whose application for income support is still denied after the internal review, the SBT is a forum that
cannot easily be avoided.
It is the SBT that is empowered by the legislature to decide income support appeals binding on the Director: s. 26(3).
Given the existence of an appeal to the SBT, it is not at all clear that an applicant could seek judicial review of the
Director's decision without first arguing before the SBT
The ODSPA also provides for an appeal, on questions of law, from the SBT to the Divisional Court
o There is little doubt, therefore, that the SBT is empowered to decide questions of law
o Important implications flow from this power
In Martin, this Court repeated the principle that administrative bodies empowered to decide questions of law "may
presumptively go beyond the bounds of their enabling statute and decide issues of common law or statutory
interpretation that arise in the course of a case properly before them, subject to judicial review on the appropriate
standard": see para. 45.
I must emphasize that the presumptive power to look beyond a tribunal's enabling statute is triggered simply where a
tribunal (with the authority to decide questions of law) is confronted with "issues ... that arise in the course of a case
properly before" it.
This can be contrasted with the power to subject a statutory provision to Charter scrutiny, which will only be found
where the tribunal has jurisdiction to decide questions of law relating to that specific provision
I must conclude that the contrast in the wording of Martin is deliberate.
Where a specific provision is being declared invalid, it is necessary to ensure that the tribunal is empowered to
scrutinize it.
o Power to scrutinize other provisions is not sufficient, because the constitutional analysis is targeting one
specific provision.
But the same does not hold true when a tribunal is merely being asked to consider external sources of law.
o In such a situation, a specific statutory provision is not necessarily placed at the heart of the analysis; for
instance, the tribunal may be asked to look beyond its enabling statute because its enabling statute is silent on
an issue.
o Although consideration of the external source in the present appeal might lead to the inapplicability of a
specific provision, this does not imply that the process is analogous to that of constitutional invalidation.
o When a tribunal is simply asked to apply an external statute, this Court has always focused the analysis on the
tribunal's jurisdiction to consider the whole issue before it
The presumption that a tribunal can go beyond its enabling statute -- unlike the presumption that a tribunal can
pronounce on constitutional validity -- exists because it is undesirable for a tribunal to limit itself to some of the law
while shutting its eyes to the rest of the law.
o The law is not so easily compartmentalized that all relevant sources on a given issue can be found in the
provisions of a tribunal's enabling statute.
o Accordingly, to limit the tribunal's ability to consider the whole law is to increase the probability that a
tribunal will come to a misinformed conclusion.
o In turn, misinformed conclusions lead to inefficient appeals or, more unfortunately, the denial of justice
Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of its tribunals however it sees
fit. The respondent points to two provisions in the ODSPA and OWA to argue that this is precisely what the
legislature sought to do with respect to the SBT
it is one thing to preclude a statutory tribunal from invalidating legislation enacted by the legislature that created it.
o It is completely different to preclude that body from applying legislation enacted by that legislature in order to
resolve apparent conflicts between statutes.
o The former power -- an act of defying legislative intent -- is one that is clearly more offensive to the
legislature; it should not be surprising, therefore, when the legislature eliminates it. Yet the latter power
represents nothing more than an instantiation of legislative intent -- a legislative intent, I should note, that
includes the primacy of the Code and the concurrent jurisdiction of administrative bodies to apply it.
The most important characteristic of the Code for the purposes of this appeal is that it is fundamental, quasiconstitutional law
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Accordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting
the human rights of those to whom it applies
o And not only must the content of the Code be understood in the context of its purpose, but like the Canadian
Charter of Rights and Freedoms, it must be recognized as being the law of the people
o Accordingly, it must not only be given expansive meaning, but also offered accessible application
The importance of the Code is not merely an assertion of this Court. The Ontario legislature has seen fit to bind itself
and all its agents through the Code: s. 47(1). Further, it has given the Code primacy over all other legislative
enactments: s. 47(2).
o As a result of this primacy clause, where provisions of the Code conflict with provisions in another provincial
law, it is the provisions of the Code that are to apply
Two elements of the Code regime, in addition to those discussed under the ODSPA and OWA, confirm this legislative
intention.
o The first is found at s. 47(2). This section provides not simply that the Code takes primacy over other
legislative enactments, but that this primacy applies "unless the [other] Act or regulation specifically provides
that it is to apply despite this Act [the Code]".
 Thus the legislature put its mind to conflicts between the Code and other enactments, declared that the
Code will prevail as a general rule and also developed instructions for how it is to avoid application
of Code primacy.
 Given that the legislature did not follow the procedure it declared mandatory for overruling the
primacy of the Code, this Court is in no position to deduce that it meant to do so or that it came close
enough.
 This is especially so given that the consequence of this deduction would be that the application of
human rights law is curtailed.
o The second element in the statutory scheme that confirms the jurisdiction of the SBT to apply the Code is the
non-exclusive jurisdiction of the OHRC concerning the interpretation and application of the Code
 In its present form, the Code can be interpreted and applied by a myriad of administrative actors.
 Nothing in the current legislative scheme suggests that the OHRC is the guardian or the gatekeeper
for human rights law in Ontario
 It is hardly appropriate for this Court to now argue with this legislative policy shift towards
concurrent jurisdiction, and seek to restore exclusive jurisdiction for the OHRC
I therefore conclude that the SBT has jurisdiction to consider the Code. The ODSPA and OWA confirm that the SBT
can decide questions of law.
It follows that the SBT is presumed to have the jurisdiction to consider the whole law. More specifically, when it
decides whether an applicant is eligible for income support, the SBT is presumed able to consider any legal source
that might influence its decision on eligibility. In the present appeal, the Code is one such source
There is no indication that the legislature has sought to rebut this presumption.
o To the contrary, the legislature has announced the primacy of the Code and has given itself clear directions for
how this primacy can be eliminated in particular circumstances.
o The legislature has indeed prohibited the SBT from considering the constitutional validity of enactments, or
the vires of regulations, but it did nothing to suggest that the SBT could not consider the Code.
o I cannot impute to the legislature the intention that the SBT ignore the Code when the legislature did not even
follow its own instructions for yielding this result
The ODSPA and OWA do evince a legislative intent to prevent the SBT from looking behind the statutory and
regulatory scheme enacted by the legislature and its delegated actors.
o However, consideration of the Code is not analogous. Far from being used to look behind the legislative
scheme, the Code forms part of the legislative scheme. It would be contrary to legislative intention to demand
that the SBT ignore it
The analysis that the respondent invites is premised on the assumption that the SBT could decline jurisdiction if it
determines that the OHRC is a more appropriate forum in which the applicants could advance their claim.
o This premise is unnecessary when a tribunal is determining whether another decision maker has exclusive
jurisdiction; in that context, the tribunal is not deciding which of two forums is preferable, but rather which of
two forums has jurisdiction in the first place.
o But this premise is vital in the present appeal because the jurisdiction of the SBT has already been triggered.
o In order for the SBT to be able to decline to hear the issue properly in front of it, the legislature must have
granted it this power
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An investigation of the ODSPA and the OWA reveals that the legislature did not grant the SBT such
a power
 Since the SBT has not been granted the authority to decline jurisdiction, it cannot avoid considering
the Code issues in the appellants' appeals. This is sufficient to decide the appeal
Having the SBT apply the Code in rendering its decisions also has many salutary effects and is consistent with this
Court's jurisprudence affirming the importance of accessible human rights legislation.
o Before reviewing these effects, however, I should stress that they were not determinative in deciding the
outcome of this appeal.
o While the SBT happens to be the best forum to decide Code issues in this particular case, even if it was not,
its lack of authority to decline jurisdiction would be conclusive
In this case, the applicability of s. 5(2) of the ODSPA is best decided by the SBT because the SBT is practically
unavoidable for the vulnerable applicants who have been denied financial assistance under the ODSPA.
o Appellants to the SBT, like applicants in front of many administrative tribunals, are not individuals who have
time on their side, nor will they necessarily be willing to start afresh with an application to the OHRC if their
appeal to the SBT is dismissed.
o And if they try this alternate route, there is no guarantee that they would even have the chance to argue their
case before the Human Rights Tribunal of Ontario: see s. 36 of the Code. These applicants merit prompt, final
and binding resolutions for their disputes
Where a tribunal is properly seized of an issue pursuant to a statutory appeal, and especially where a vulnerable
appellant is advancing arguments in defence of his or her human rights, I would think it extremely rare for this
tribunal to not be the one most appropriate to hear the entirety of the dispute.
I am unable to think of any situation where such a tribunal would be justified in ignoring the human rights argument,
applying a potentially discriminatory provision, referring the legislative challenge to another forum, and leaving the
appellant without benefits in the meantime
The practical constraints that burden the SBT are of an entirely different character than those facing applicants.
o It is true that the efficient functioning of tribunals is important. And the presence of another tribunal with
greater institutional capacity may indeed signal that this other forum is more appropriate to deal with the case
at hand
I conclude that the SBT is a highly appropriate forum in which to argue the applicability of s. 5(2) of the ODSPA
under the Code. In general, encouraging administrative tribunals to exercise their jurisdiction to decide human rights
issues fulfills the laudable goal of bringing justice closer to the people
Abella (dissenting)
This case is not about access, about the applicability of human rights legislation, or about whether the government is
entitled to refuse to provide disability benefits to individuals whose only substantial impairment is an alcohol or drug
dependency. It is about statutory interpretation. Specifically, it is about the scope of the legislature's intention when it
enacted a statutory provision depriving an administrative tribunal of jurisdiction to decide whether any of its enabling
provisions were ultra vires or violated the Canadian Charter of Rights and Freedoms
In my view, s. 67(2) creates a "category of questions of law" that have been explicitly removed from the SBT's
jurisdiction, namely any legal question the answer to which might result in the SBT finding a provision of its own
legislation inoperative
Section 47(2) of the Code provides that where a provision in an Act or regulation purports to require or authorize
conduct in contravention of the Code, the Code prevails in the absence of specific legislative language to the contrary
Clearly, the values and rights expressed in the Code are fundamental. This, however, is different from a derivative
conclusion that as a result of s. 47(2), all administrative bodies in Ontario are ad hoc Human Rights Commissions
capable of applying the Code. Section 47(2) of the Code does not confer jurisdiction; it announces the primacy of the
Code. It represents a legislative direction that when a body with the authority to do so is asked to apply the Code, the
provisions of the Code will prevail over an inconsistent statutory provision
In Martin, this Court decided that the authority to assess the constitutional validity of a legislative provision flows
from the powers to decide questions of law the legislature conferred on the administrative body
The fact that the Code is not mentioned specifically in the taxonomy of prohibited determinations in s. 67(2) is not
determinative. The overlapping nature of the rights and remedies guaranteed under the Charter and the Code,
including disability rights, is such that it would be anomalous if the SBT were empowered to assess whether an
ODSPA provision was discriminatory on grounds of disability under the Code but not under the Charter
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The Code and the Charter are both legal instruments capable of remedying discrimination based on disability. The
result of a challenge under either may very well be the same. From the perspective of a claimant before the SBT, the
result of a Code or a Charter violation would be the same -- s. 5(2) would be rendered inapplicable to them
Even though s. 67(2) refers to constitutional validity, but not to compliance with the Code, the remedial and
conceptual similarities between the Charter and the Code are such that the legislature has, by clear implication,
withdrawn authority to grant the remedy of inoperability under either mandate
In addition to the wording of the operative legislation, Martin also holds that practical considerations, including its
institutional capacity, may indicate the legislature's intention that a tribunal not consider legal questions that go to the
applicability of its enabling statute
Imposing Code compliance hearings on the SBT will similarly and inevitably impact its ability to assist the disabled
community it was established to benefit in a timely way. It will be difficult to explain to the thousands of disabled
individuals waiting for their appeals to be heard -- many without any interim support -- that there is any public benefit
in the SBT hearing a complex, lengthy, and inevitably delaying jurisprudential issue with no precedential value. That
is the real access issue in this case
The SBT's institutional capacity and procedural practices differ markedly from those of a tribunal appointed under the
Code ("Human Rights Tribunal"). The Human Rights Tribunal's Rules of Practice foster full adversarial debate and
provide for full disclosure and production obligations. I acknowledge that the Human Rights Tribunal's greater
institutional powers and capacity do not mean that only a Human Rights Tribunal can apply the Code
While s. 34(1)(a) of the Code may signal that the Commission no longer has exclusive jurisdiction to decide
complaints under the Code, the legislature does not seem to have replaced that exclusivity with a scheme whereby all
provincial tribunals have concurrent, free-standing jurisdiction with the Commission to enforce the Code. Such
jurisdiction would have to be found in the enabling legislation of the tribunal. Under s. 48(12)(j) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sch. A, for example, labour arbitrators are authorized "to interpret and apply
human rights and other employment-related statutes". And labour arbitrators under the province's Fire Protection and
Prevention Act, 1997, S.O. 1997, c. 4, s. 53(9)(j), have been given similar originating jurisdiction
The inability to declare a provision inoperative under the Code does not mean that in making their [page552]
determinations, the Director and the SBT are precluded from applying the human rights values and principles found in
it. It does mean, however, that those principles cannot be used to "invalidate" a provision which defines their mandate
Nor does it mean that a litigant cannot challenge a provision of the OPSDA for incompatibility with the Code, or even
with the Charter. It means that the challenge must be made in the proper forum. That is exactly what the parties in this
case have done by bringing a joint Charter and Code challenge before the Divisional Court
Standing
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This area deals primarily with standing to seek judicial review of administrative action
Judicial review was, at one time, more individually focused
It represented the way that individuals could complain about unlawful exercises of government power that affected
them personally
It was the individual’s bulwark against a coercive state, particularly to the extent that the state was impinging on
traditional property interests
Where state action impacted larger interests the launching of challenges was largely left to the unreviewable
discretion of the attorney general
The common law was extremely conservative in its recognition of collective or group rights
With modern complex regulation however came a recognition that the issue of government illegality was not always
readily reduced to one of a contest between an individual and the state  there were often many people involved
There also became questions about the role of the AG as the appropriate voice for the people  especially with the
government being the other party
Began to see lobby groups and political action groups agitating for access to the process  including wanting
standing
First saw an opening in the field of standing for constitutional challenges and it was only a matter of time before it
opened up in review cases as well
There are some drawbacks however  standing allows for groups with resources to go after review and draw
resources from other areas of the judicial system
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Also the costs of litigation mean that only those with money seem to have access  many have doubts about
the value of liberal rules of standing
Most judicial review applications are still brought by those directly affected by decisions and not interest groups
o But standing still arises in this context  should others have an ability to have a say
o
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Who is entitled to bring JR proceedings
o Strangers could seek certiorari and prohibition but the court possessed an overriding discretion to refuse
o When a person was directly impacted and the error was patent in the case of prohibition the remedy was
available as of right or ex debito justitiae
o For mandamus the person seeking the remedy had to be a person to whom performance of the duty was owed
or someone sufficiently interested in its performance
o When declaratory or injunctive relief were being sought the plaintiffs were required to show interference with
a private right of theirs or, when the interference was with public rights, to show that they would be affected
or suffer loss over and above other members of the community
There are perhaps two polar views of standing
o Anyone should be able to bring to the attention of the courts an issue of illegality
o Only those directly affected by the action (who stand to benefit) should be able to bring it forward
Growth of public interest groups has led to increasing demand for standing to both be involved and to be able to
appeal decisions that are made
o Groups would either try to get standing themselves or try to get someone to get standing  would support
their efforts (usually an individual)
o Thorson (Official Languages Act), McNeil (NS Amusement Board), Borowski (Abortion provisions of
Criminal Code) were three SCC cases where an individual who had no direct interest challenged provisions
and the court granted standing
 Signaled a liberalization of the rules of standing in Canada
Finlay v Canada (Minister of Finance) [1986] 2 SCR 607
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The issue of standing in this appeal, as I conceive it, may be approached by asking the following questions:
o 1. Does the respondent have a sufficient personal interest in the legality of the federal cost-sharing payments
to bring him within the general requirement for standing to challenge an exercise of statutory authority by an
action for a declaration or an injunction?
o 2. If not, does the Court have a discretion to recognize public interest standing in the circumstances of the
present case?
o 3. If the Court does have such a discretion should it be exercised in favour of the respondent?
It depends on the nature of the issues raised and whether the court has sufficient material before it, in the way of
allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the
nature of the interest asserted.
The nature of the respondent's interest in the substantive issues raised by his action is sufficiently clearly established
by the allegations and contentions in the statement of claim and the statutory and contractual provisions relied on
without the need of evidence or full argument on the merits
The nature of the interest required by a private individual for standing to sue for declaratory or injunctive relief where,
as in the present case, a question of public right or interest is raised, has been defined with reference to the role of the
Attorney General as the guardian of public rights.
Only the Attorney General has traditionally been regarded as having standing to assert a purely public right or interest
by the institution of proceedings for declaratory or injunctive relief of his own motion or on the relation of another
person.
His exercise of discretion as to whether or not to give his consent to relator proceedings is not reviewable by the
courts.
o A plaintiff can sue without joining the Attorney-General in two cases:
 first, where the interference with the public right is such that some private right of his is at the same
time interfered with (e.g., where an obstruction is so placed in a highway that the owner of the
premises abutting upon the highway is specially affected by reason that the obstruction interferes with
his private right to access from end to his premises to and from the highway); and,
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secondly, where no private right is interfered with, but the plaintiff, in respect of his public right,
suffers special damage peculiar to himself from the interference with the public right
o A plaintiff, in attempting to restrain, control or confine within proper limits, the act of a public or quasi-public
body which affects the public generally, is an outsider unless he has sustained special damage or can show
that he has some "special interest, private interest, or sufficient interest".
The precise nature of the respondent's interest in the legality of the federal cost-sharing payments is not easy to
characterize in terms of the general rule. The respondent sues as a person in need within the meaning of the Plan who
claims to have been prejudiced by the alleged provincial non-compliance with the conditions and undertakings to
which the federal cost-sharing payments are made subject by the Plan
Counsel for the appellants conceded that the deduction reduced the amount of the respondent's monthly social
allowance payment below that required to meet the cost of basic requirements or necessities.
The respondent alleges the further prejudice arising from the fact that he remains indebted for the municipal
assistance which he received prior to qualifying for social allowance. Although the Plan was enacted for the benefit of
persons in need it does not confer any rights on such persons; their entitlement to assistance arises under the
provincial legislation. Nor can the federal cost-sharing payments be said to affect such entitlement directly.
The respondent contends, however, that the continued payment of the federal contributions, despite the alleged
provincial non-compliance with the conditions [page622] and undertakings imposed by the Plan, is in effect a cause of
such non-compliance and the resulting prejudice to the respondent.
He argues that it is the federal failure to insist on provincial compliance with the conditions and undertakings imposed
by the Plan that permits or encourages such continued non-compliance by the province. What the respondent seeks by
a declaration that the federal payments are illegal and an injunction to stop them is to compel the province to comply
with the conditions and undertakings imposed by the Plan.
Counsel for the appellants contended that there was an insufficient "nexus" between the alleged provincial noncompliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal
payments to satisfy the general requirement for standing to bring an action for a declaration
There is no doubt that the respondent has a direct, personal interest in the alleged provincial non-compliance with the
conditions and undertakings imposed by the Plan. A declaration that the federal cost-sharing payments are illegal
would necessarily involve a finding that the province had failed to comply with the conditions and undertakings
imposed by the Plan, but this would not affect the validity of the provincial legislative provisions about which
complaint is made
I am on balance of the view that the relationship between the prejudice allegedly caused to the respondent by the
provincial non-compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the
federal payments is too indirect, remote or speculative to be a sufficient causative relationship for standing under the
general rule.
o The respondent must therefore in my opinion rely for standing on what is essentially a public interest in the
legality of the federal cost-sharing payments, albeit that of a particular class of the public defined by the Plan
as persons in need.
o It is accordingly necessary to consider whether the respondent should be recognized as having standing, as a
matter of judicial discretion, by application of the principle or approach reflected in the decisions of this Court
in Thorson, McNeil and Borowski.
The issue, then, as I see it, is whether the principle reflected in Thorson, McNeil and Borowski should be extended by
this Court to such cases.
o This question raises again the policy considerations underlying judicial attitudes to public interest standing,
and in particular, whether the same value is to be assigned to the public interest in the maintenance of respect
for the limits of administrative authority as was assigned by this Court in Thorson, McNeil and Borowski to
the public interest in the maintenance of respect for the limits of legislative authority.
In my view an affirmative answer should be given to this question.
traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the
concern about the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern
that in the determination of issues the courts should have the benefit of the contending points of view of those most
directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to
the other branches of government
The concern about the proper role of the courts and their constitutional relationship to the other branches of
government is addressed by the requirement of justiciability, which Laskin J. held in Thorson to be central to the
exercise of the judicial discretion whether or not to recognize public interest standing.
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Of course, justiciability is always a matter of concern for the courts, but the implication of what was said by
Laskin J. in Thorson is that it is a matter of particular concern in the recognition of public interest standing
 where there is an issue which is appropriate for judicial determination the courts should not decline to
determine it on the ground that because of its policy context or implications it is better left for review
and determination by the legislative or executive branches of government
 There will no doubt be cases in which the question of provincial compliance with the conditions of
federal cost-sharing will raise issues that are not appropriate for judicial determination, but the
particular issues of provincial non-compliance raised by the respondent's statement of claim are
questions of law and as such clearly justiciable
The judicial concern about the allocation of scarce judicial resources and the need to screen out the mere busybody is
addressed by the requirements affirmed in Borowski that there be a serious issue raised and that a citizen have a
genuine interest in the issue. I think the respondent meets both of these requirements.
o The issues of law raised with respect to the alleged provincial non-compliance with the conditions and
undertakings to which the federal cost-sharing payments are made subject by the Plan and with respect to the
statutory authority for such payments are in my opinion far from frivolous
The judicial concern that in the determination of an issue a court should have the benefit of the contending views of
the persons most directly affected by the issue is addressed by the requirement affirmed in Borowski that there be no
other reasonable and effective manner in which the issue may be brought before a court
o Here it is quite clear from the nature of the legislation in issue that there could be no one with a more direct
interest than the plaintiff in a position to challenge the statutory authority to make the federal cost-sharing
payments.
o In so far as a prior request to the Attorney General to intervene might be considered to be necessary in certain
cases to show that there is no other way in which the issue may be brought before a court, I do not think it
should be regarded as necessary in a case such as this one, where it is clear from the position adopted by the
Attorney General in the case that he would not have consented to the institution of proceedings.
o I am accordingly of the view that the respondent meets the requirement that there should be no other
reasonable and effective manner in which the issue of statutory authority raised by the respondent's statement
of claim may be brought before a court.
It is essential to distinguish, I think, between standing, or the right to seek particular relief, and the entitlement to such
relief.
o The general rule respecting standing to seek a declaration or an injunction, to which I have referred above, has
generally been regarded as essentially the same for the two forms of relief.
o I can see no sound reason why the exceptional recognition of public interest standing, as a matter of judicial
discretion, which is being affirmed in these reasons should not apply to injunctive as well as declaratory
relief.
o If the respondent is recognized as having standing to seek the declaratory relief then I cannot see why he
should not be recognized as also having standing to seek the ancillary injunctive relief.
o Whether a plaintiff should be granted either declaratory relief or injunctive relief in a particular case is a
matter of judicial discretion to be exercised according to criteria and considerations which are somewhat
different for the two forms of relief
One of the implications of the Finlay judgment seems to be that the idscretion of the court only comes into play when
the applicant or plaintiff fails to establish standing by reference to the traditional common law rules or any relevant
statutory provisions with respect to standing
Where those old standards are met the plaintiff is entitled to bring the case as of right
As a result, it is to be expected that in many instances where standing is an issue, the argument will proceeed in the
same way that it did in Finlay, with the plaintiff first trying to establish an entitlement to litigate by reference to
accepted principles and then, if unsuccessful, seeking to invoke the discretion of the court as recognized by Finlay
Subsequent to Finlay the SCC has revisited the issue of public interest standing  in particular whether or not there is
a more appropriate litigant of the issues than the individual or public interest group bringing the cause of action
Canadian Council of Churches v Canada (Minister of Employment and Immigration) [1992] 1 SCR 236
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At issue on this appeal is whether the Canadian Council of Churches should be granted status to proceed with an
action challenging, almost in its entirety, the validity of the amended Immigration Act, 1976 which came into effect
January 1, 1989
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The Canadian Council of Churches (the Council), a federal corporation, represents the interests of a broad group of
member churches
The Attorney General of Canada brought a motion to strike out the claim on the basis that the Council did not have
standing to [page241] bring the action and had not demonstrated a cause of action
Federal Court  dismissed the application
o judgment reflects his concern that there might be no other reasonable, effective or practical manner to bring
the constitutional question before the Court
Federal Court of Appeal  allowed the appeal
The principal question to be resolved is whether the Federal Court of Appeal erred in holding that the Canadian
Council of Churches should be denied standing to challenge many of the provisions of the Immigration Act, 1976
The highest Courts of the United Kingdom, Australia and the United States have struggled with the problem. They
have all recognized the need to balance the access of public interest groups to the Courts against the need to conserve
scarce judicial resources. It will be seen that each of these jurisdictions has taken a more restrictive approach to
granting status to parties than have the courts in Canada
Courts in Canada like those in other common law jurisdictions traditionally dealt with individuals. For example,
courts determine whether an individual is guilty of a crime; they determine rights as between individuals; they
determine the rights of individuals in their relationships with the state in all its various manifestations
It was by acting in this manner that the courts established the rule of law and provided a peaceful means of resolving
disputes.
o Operating primarily, if not almost exclusively, in the traditional manner courts in most regions operate to
capacity.
o Courts play an important role in our society. If they are to continue to do so care must be taken to ensure that
judicial resources are not overextended. This is a factor that will always have to be placed in the balance when
consideration is given to extending standing.
On the other hand there can be no doubt that the complexity of society has spawned ever more complex issues for
resolution by the courts
The increase of state activism has led to the growth of the concept of public rights. The validity of government
intervention must be reviewed by courts
In 1982 with the passage of the Charter there was for the first time a restraint placed on the sovereignty of Parliament
to pass legislation that fell within its jurisdiction. The Charter enshrines the rights and freedoms of Canadians.
o It is the courts which have the jurisdiction to preserve and to enforce those Charter rights. This is achieved, in
part, by ensuring that legislation does not infringe the provisions of the Charter
The rule of law is thus recognized as a corner stone of our democratic form of government. It is the rule of law which
guarantees the rights of citizens to protection against arbitrary and unconstitutional government action
Parliament and the legislatures are thus required to act within the bounds of the constitution and in accordance with
the Charter. Courts are the final arbitors as to when that duty has been breached. As a result, courts will undoubtedly
seek to ensure that their discretion is exercised so that standing is granted in those situations where it is necessary to
ensure that legislation conforms to the Constitution and the Charter
The increasing recognition of the importance of public rights in our society confirms the need to extend the right to
standing from the private law tradition which limited party status to those who possessed a private interest. In addition
some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982.
o However, I would stress that the recognition of the need to grant public interest standing in some
circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is
essential that a balance be struck between ensuring access to the courts and preserving judicial resources
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge.
The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the
measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this
Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that
that designation implies
It has been seen that when public interest standing is sought, consideration must be given to three aspects.
o First, is there a serious issue raised as to the invalidity of legislation in question?
o Second, has it been established that the plaintiff is directly affected by the legislation or if not does the
plaintiff have a genuine interest in its validity?
o Third, is there another reasonable and effective way to bring the issue before the court?
151
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Serious Issue of Invalidity
issues of standing and of whether there is a reasonable cause of action are closely related and indeed tend to merge
I am prepared to accept that some aspects of the statement of claim could be said to raise a serious issue as to the
validity of the legislation.
Has the Plaintiff demonstrated a genuine interest
There can be no doubt that the applicant has satisfied this part of the test. The Council enjoys the highest possible
reputation and has demonstrated a real and continuing interest in the problems of the refugees and immigrants
Whether there is another reasonable and effective way to bring the issue before the Court
It is this third issue that gives rise to the real difficulty in this case. The challenged legislation is regulatory in nature
and directly affects all refugee claimants in this country.
Each one of them has standing to initiate a constitutional challenge to secure his or her own rights under the Charter.
The applicant Council recognizes the possibility that such actions could be brought but argues that the disadvantages
which refugees face as a group preclude their effective use of access to the court.
o I cannot accept that submission.
o Since the institution of this action by the Council, a great many refugee claimants have, pursuant to the
provisions of the statute, appealed administrative decisions which affected them
The appellant also argued that the possibility of the imposition of a 72-hour removal order against refugee claimants
undermines their ability to challenge the legislative scheme.
o I cannot accept that contention
o It is clear that the Federal Court has jurisdiction to grant injunctive relief against a removal order
o It is therefore clear that in the ordinary case there is more than adequate time for a claimant to prepare to
litigate the possible rejection of the claim
Even though the Federal Court has been prepared in appropriate cases to exercise its jurisdiction to prevent removal of
refugee claimants there is apparently very little need for it to do so.
o The means exist to ensure that the issues which are sought to be litigated on behalf of individual applicants
may readily be brought before the court without any fear that a 72-hour removal order will deprive them of
their rights
From the material presented, it is clear that individual claimants for refugee status, who have every right to challenge
the legislation, have in fact done so.
o There are, therefore, other reasonable methods of bringing the matter before the Court. On this ground the
applicant Council must fail.
o I would hasten to add that this should not be interpreted as a mechanistic application of a technical
requirement.
o Rather it must be remembered that the basic purpose for allowing public interest standing is to ensure that
legislation is not immunized from challenge.
o Here there is no such immunization as plaintiff refugee claimants are challenging the legislation.
o Thus the very rationale for the public interest litigation party disappears.
It has been seen that a public interest litigant is more likely to be granted standing in Canada than in other common
law jurisdictions.
Indeed if the basis for granting status were significantly broadened, these public interest litigants would displace the
private litigant.
Yet the views of the public litigant who cannot obtain standing need not be lost.
o Public interests organizations are, as they should be, frequently granted intervener status.
o The views and submissions of interveners on issues of public importance frequently provide great assistance
to the courts.
o Yet that assistance is given against a background of established facts and in a time frame and context that is
controlled by the courts.
o A proper balance between providing for the submissions of public interest groups and preserving judicial
resources is maintained
Harris v Canada [2000] 4 FC 37 (CA)
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Harris, a taxpayer, sought a declaration that the Minister of National Revenue, had acted illegally in providing another
taxpayer with a favourable private advance ruling while maintaining a different public position on the taxability of the
funds in question
152
He alleged that the Minister had ulterior motives for providing this preferential treatment  Minister sought
to have the proceedings struck as disclosing no reasonable cause of action and for a lack of standing
Federal Court of Appeal rejected the no reasonable cause of action argument
This Court has recognized that where strong public interest issues arise, a court may exercise its discretion to
recognize public interest standing
public interest standing may exist where "the matter raised ... is one of strong public interest and there may be no
other way such an issue could be brought to the attention of the Court, were it not for the efforts of the [public interest
litigant]."
I do not think that the House of Lords' decision demonstrates that Mr. Harris is precluded from obtaining public
interest standing to challenge the tax treatment afforded to other taxpayers by Revenue Canada
if Revenue Canada concludes compromise agreements or covert deals or provides preferential treatment to certain
taxpayers without statutory authority, public interest standing may be granted to challenge the tax treatment that
Revenue Canada affords to taxpayers who benefit from those actions
Finlay, Le Dain J. held that courts should be concerned about their proper role and their constitutional [page64]
relationship to other branches of governments
In my view, Mr. Harris' statement of claim raises a justiciable issue. His claim that the Minister of National Revenue
acted illegally or improperly or for ulterior motives, namely favouritism and preferential treatment by way of a covert
deal when he interpreted the provisions of the Act in favour of a specific trust, raises a question of a potential
violation of the Act that a court may assess by reference to the Minister's duty to follow the Act "absolutely," as this
Court held in Ludmer
The second criterion established by Le Dain J. in Finlay was that a public interest litigant must raise a serious issue.
As Le Dain J. concluded in Finlay, the issues raised by Mr. Harris are "far from frivolous
The third criterion is that the public interest litigant must have a genuine interest in the issue. On appeal, the Attorney
General did not seriously contest that Mr. Harris did have a genuine interest in the issues he raises. Mr. Harris is a
taxpayer
Finally, in exercising its discretion to recognize public interest standing, a court must be satisfied that there is no other
reasonable and effective manner in which the issue may be brought before a court
Public interest standing has been granted in analogous cases
I do not think that there is a principled basis for concluding that the Minister of National Revenue is somehow
protected from a similar action by a public interest litigant to compel the Minister to perform his or her statutory
duties.
o Accordingly, I conclude that Muldoon J. properly ruled that Mr. Harris could be granted public interest
standing and therefore correctly set aside the Prothonotary's granting of the Crown's motion to strike
I wish to emphasize the narrow cause of action for which public interest standing has been granted.
o Mr. Harris does not merely seek to obtain the interpretation of a particular provision of the Act, akin to
requesting a court to provide a legal opinion.
o A mere bona fide change of position on interpretation of a statute, without more, would be insufficient to
constitute a cause of action and would have been insufficient to persuade this Court to exercise its discretion
to recognize public interest standing
Taxpayer Confidentiality
I will briefly address the concerns about taxpayer confidentiality raised by the Attorney General. The Attorney
General submitted that to permit Mr. Harris' proceeding to go forward would inevitably tend to breach the
confidentiality that is required to be protected by section 241 of the Act
I think that concerns [page67] about taxpayer confidentiality should be left to a case management or trial judge to
decide. I note that there is ample provision in the Federal Court Rules, 1998, that would adequately address
confidentiality concerns
Notes  judge emphasized the standing was given because of the allegation of ulterior motive
o If the allegation had simply been an improper interpretation it would have likely been a different outcome
o In terms of the second Finlay criteria the allegation of ulterior motive or bad faith made this a serious issue
o This seems to indicate that, at least in some circumstances, courts will look at the basis upon which JR is
being requested
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The Role of the Attorney General
Traditionally only the AG could commence litigation in the public interest but that is no longer the case post-Finlay
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But are there still situations in which the AG is still the only appropriate party to initiate litigation
At the same time does the AG has standing as of right?
Up until the emergence of public interest standing it was assumed that the status of the AG to seek JR was beyond
question but has recently been brought into question
Energy Probe v Canada (Atomic Energy Control Board) [1984] 2 FC 138 (TD)
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The applicant, Energy Probe, does not object to the Attorney General making arguments to the Court on the issues but
contends that he should do so only as an amicus curiae. The Attorney General on the other hand wants full party
status.
It should be noted that the Attorney General could not be precluded, in any event, from having the legal issues raised
by this case finally determined since authority exists under section 55 of the Supreme Court Act [R.S.C. 1970, c. 519] for the Governor in Council to refer questions to the Supreme Court
The Attorney General argues that he should be allowed standing because: (1) a decision in the main action will affect
Crown interests or the public interest generally; (2) an analogy should be drawn to the status given to the Attorney
General in constitutional cases; (3) this Court has discretion pursuant to section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] and Rules 1101 and 1716(2)(b) [Federal Court Rules, C.R.C., c. 663] which it should
exercise because of the important issues of public concern (policy) raised, and (4) since the Atomic Energy Control
Board itself cannot appear except for restricted purposes the Attorney General of Canada should be allowed standing
in order to ensure that all relevant arguments are made to the Court.
I have no doubt that this is an appropriate case in which the Attorney General should be given permission to be added
as a party.
o The Attorney General has a direct interest in the outcome of this case.
o It is alleged that one of the members of the A.E.C.B. has a pecuniary bias in the decisions of the Board
because he is president and director of a company which sells significant quantities of radiation-resistant
cables for nuclear reactors to Ontario Hydro.
o It is not a case of bias being alleged with respect to one isolated transaction but because of a continuing
business activity. If bias exists in this case then the Board member will be an ineffective member for many
decisions which the Board makes.
o Thus the issue raised challenges the practice of the Governor in Council in appointing as part-time A.E.C.B.
members persons having interests in the industry of the nature described above. The issue relates to the
choosing of persons for appointment to the Board and to the requirements that would have to be placed upon
them (e.g., divestiture of interests) to make them effective members of the Board.
In addition I think the Attorney General should be added on the ground that a "question of general importance is
raised" in these proceedings on which the Court should have his arguments
Counsel for Energy Probe argued that the Attorney General was entitled to no higher standing than the A.E.C.B
o In Northwestern Utilities Ltd. the Supreme Court held
 Section 65 no doubt confers upon the Board the right to participate on appeals from its decisions, but
in the absence of a clear expression of intention on the part of the Legislature, this right is a limited
one. The Board is given locus standi as a participant in the nature of an amicus curiae but not as a
party
 The Board has a limited status before the Court, and may not be considered as a party, in the full
sense of that term, to an appeal from its own decisions. In my view, this limitation is entirely proper.
This limitation was no doubt consciously imposed by the Legislature in order to avoid placing an
unfair burden on an appellant who, in the nature of things, must on another day and in another cause
again submit itself to the rate fixing activities of the Board. It also recognizes the universal human
frailties which are revealed when persons or organizations are placed in such adversarial positions.
 It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at
issue before the Court, even where the right to appear is given by statute, to an explanatory role with
reference to the record before the Board and to the making of representations relating to jurisdiction
Accordingly, counsel for Energy Probe argued that since the Board's role could only be that of amicus curiae or
defender of the Board's jurisdiction (in the narrow sense of that word) the Attorney General, equally, could only play
that role
I do not agree. It is not the Attorney General who is being attacked for bias.
o None of the reasons for which the Board is excluded apply to the Attorney General.
154
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It is not the Attorney General who will hear any rehearing of a licence application should an order for
certiorari be given.
o It is not a decision by the Attorney General which is under review
While the position of a principal may be similar to that of his agent for many purposes, they are not identical and their
interests are not necessarily identical.
Having come to this conclusion it is unnecessary for me to deal with much of the argument made by counsel to the
effect that the Attorney General can only be heard as an amicus curiae.
Counsel's second argument was that the Attorney General had neither a statutory right nor a common law right to
intervene
It is trite law that the role of the Attorney General in Canada differs from that of his counterpart in England but none
of the differences referred to either in the Bisaillon case or by counsel for Energy Probe were relevant to drawing a
difference between the roles that both might seek in this case
The two grounds on which the Attorney General seeks and should be given standing to appear in this case are equally
applicable in both countries
He is appearing to protect a Crown interest which at one level is not qualitatively different from the right given to any
person to appear before a Court to make representations when his interest will be affected by a decision of the Court.
o Secondly the issue before the Court is one of general public importance and of such a nature that the Court
deems it beneficial to hear argument of the Attorney General on the issue in order to ensure that all arguments
are adequately canvassed.
Accordingly the application to add the Attorney General as an intervener is granted
The Status of the Authority Under Attack
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Aside from any general public interest and constitutional reasons for according recognition as a party to the AG, the
lengthy excerpt from Northwestern Utilities (in Energy Probe) provides Reed (the judge in Energy Probe) with a very
specific reason for allowing the AG’s application in Energy Board
o The court imposed inability of the board to appeal a judgment quashing its decision for breach of the rules of
procedural fairness
o In Northwestern Utilities Estey (the Judge) goes on to elaborate the appropriate role for a statutory authority
under challenge and the reasons for this stance
 Where the right to appear and present arguments is granted, and administrative tribunal would be well
advised to adhere to the principles enunciated by Aylesworth
 Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may
present argument to the appellant tribunal. We think in all propriety, however, such argument
should be addressed not to the merits of the case as between the parties appearing before the
Board, but rather to the jurisdiction or lack of jurisdiction of the Board. If argument by
counsel for the Board is directed to such matters as we have indicated, the impartiality of the
Board will be better emphasized and its dignity and authority the better preserved, while at
the same time the appellate tribunal will have the advantage of any submissions as to
jurisdiction which counsel for the Board may see fit to advance.
 Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or
review proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make
the order in question
 In the sense the term has been employed by me here, “jurisdiction” does not include the transgression
of the authority of a tribunal by its failure to adhere to the rules of natural justice. In such an issue,
when it is joined by a party to proceedings before that tribunal in a review process, it is the tribunal
which finds itself under examination. To allow an administrative board the opportunity to justify its
action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our
judicial traditions
 The issue of whether or not a board has acted in accordance with the principles of natural
justice is surely not a matter upon which the board, whose exercise of its functions is under
attack, should debate, in appeal, as a protagonist and that issue should be fought out before
the appellate or reviewing Court by the parties and not by the tribunal whose actions are
under review
155
Bibeault v McCaffrey [1984] 1 SCR 176
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S.32 of the Quebec labour code conferred on unions and employers the right to be present and be heard in an
application for certification but not allowing employees. SCC allowed the labour commissioner, Labour Court, and
Labour Court judge to be parties to an appeal from a quashing of the decision denying participatory rights to
employees
o Respondents relied on the fact that the SCC does not recognized tribunals and their members as having a right
to argue on appeal in support of their decisions or to appeal judgments reversing them, except to defend their
jurisdiction; and that the concept of jurisdiction applied by the SCC in this area is limited to powers as such
and does not include such losses of jurisdiction, inter alia, as a result from infringing the principles of natural
justice, as respondents alleged was the case her: a departure from the audi alteram partem rule
o With respect, in my opinion this argument is incorrect, considering the real question raised by the claims of
the employees. As I mentioned above, suggesting an infringement of the audi alteram partem rule in the case
at bar postulates a patently unreasonable interpretation of s.32 of the Labour Code. Such an interpretation by
the commissioners, the judge or the Labour Court would in itself be an excess of jurisdiction of the kind
recognized by this court as conferring on the employees the necessary interest to the appellants. In this sense
the jurisdiction of the commissioners, the Labour Court, and the judge is at issue. As their jurisdiction is
disputed in this way, thy are entitled to appear in court to defend it
CAIMAW v Paccar of Canada Ltd [1989] 2 SCR 983
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Later, in CAIMAW v Paccar of Canada Ltd [1989] 2 SCR 983, LaForest not only attempted to put the above case in
perspective but also to deal with the issue of whether a tribunal should be able to be a party and defend itself in
proceedings where the allegation was one of patent unreasonableness
o In my view the Industrial Relations Council has standing before this court to make submissions not only
explaining the record before the court, but also to show that it had jurisdiction to embark upon the inquiry and
that it has not lost that jurisdiction through a patently unreasonable interpretation of its powers
o It is not every case in which a denial of natural justice will flow from a patently unreasonable interpretation of
a statute. In the latter case, however the administrative tribunal will be able to make certain limited
submissions
o The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has
been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue
becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is
a powerful policy reason in favour of permitting the tribunal to make submissions. That is the tribunal is in
the best position to draw the attention of the court to those considerations, rooted in the specialized
jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear
unreasonable to someone not versed in the intricacies of the specialized area
o The Industrial Relations Council confined its submissions to two points
 If first argued that the Court of Appeal erred in applying the wrong standard of review to the
decisions of the Board. It submitted that the Court of Appeal review for correctness instead of for
reasonableness. This was an error
 The second submission was that the Board had considered each of the union’s submissions before it
and had given reasoned, rational rejections to each of them  the council argued that it had made a
careful review of the materials and made a decision within its exclusive jurisdiction  at no point did
it argue that the decision was correct
 The council had standing to make all of these arguments and doing so it did not exceed the
limited role the court allows an administrative tribunal in judicial review proceedings
Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner) (2005) 75 OR (3d) 309
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Children's Lawyer for Ontario sought judicial review of the decision of the Information and Privacy Commissioner
who ordered the Children's Lawyer to disclose certain documents in her possession. The Divisional Court dismissed
the application for judicial review. In the course of doing so, it dismissed the Children's Lawyer's request to refuse or
limit the standing of the Commissioner. The Children's Lawyer now appeals, challenging the role that the
Commissioner was permitted to play in the Divisional Court
Former client of the Children’s Lawyer had requested disclosure of materials  Children’s lawyer disclosed some but
not all of them saying that some could not be disclosed, on the basis of FIPPA
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Commissioner of FIPPA said that there was no reason not to disclose these materials to a former client  that the
provisions relied upon did not apply in that fashion
The Divisional court found that the Commissioner's decision that s. 13 of FIPPA did not permit the Children's Lawyer
to withhold disclosure of these records was not unreasonable.
(Paccar)  beyond question a tribunal's standing to explain the record before the court and to advance its view of the
appropriate standard of review. He also approved the tribunal's standing to explain why its decision was a reasonable
approach to adopt and could not be said to be patently unreasonable
s. 9(2) of the Judicial Review Procedure Act entitles the administrative tribunal to be a party to the proceedings but
leaves to the court's discretion the scope of its standing. Given the wide variety of administrative tribunals and types
of decisions that are today subjected to judicial review, I agree that the court should exercise this discretion paying
attention to the context presented in the particular application. However, I think it is both unnecessary and confusing
to use the "pragmatic and functional" label. This phrase has developed a strong association with the quite different
task of determining the proper standard of review and with the well-known factors embodied in that approach, which
will not automatically be useful in determining the scope of standing
If this is so, what are the important considerations that should guide the court in the exercise of its discretion? In my
view, the two most important considerations are those reflected in the two seminal cases on this issue: Paccar and
Northwestern Utilities
In Paccar, La Forest J. articulated the importance of having a fully informed adjudication of the issues before the
court. Because of its specialized expertise, or for want of an alternative knowledgeable advocate, submissions from
the tribunal may be essential to achieve this objective. In these circumstances, a broader standing adds value to the
court proceedings. Because sound decision making is most likely to come from a fully informed court, this
consideration will frequently be of most importance
Professor Mullan put it this way at Mullan, supra, at p. 459
o Under a discretionary approach, the principal question should probably be whether the participation of the
tribunal is needed to enable a proper defence or justification of the decision under attack. If that decision will
almost certainly be presented adequately by the losing party at first instance or by some other party or
intervenor such as the attorney general, there may be no need for tribunal representation irrespective of the
ground of judicial review or appeal. On the other hand, where no one is appearing to defend the tribunal's
decision, where the matter in issue involves factors or considerations peculiarly within the decision maker's
knowledge or expertise, or where the tribunal wishes to provide dimensions or explanations that are not
necessarily going to be put by a party respondent, then there should clearly be room for that kind of
representation to be allowed within the discretion of the reviewing or appellate court. Indeed, in at least some
instances, a true commitment to defer ence and restraint in intervention would seem to necessitate it.
In Northwestern Utilities, supra, Estey J. articulated the other significant consideration, namely the importance of
maintaining tribunal impartiality. This obviously matters to the parties to the decision, particularly if the application
results in the matter being referred back to the tribunal. More broadly however, in future cases before the tribunal
where similar interests arise, or where the tribunal serves a defined and specialized community, there may be a risk
that full-fledged participation by a tribunal as an adversary in a judicial review proceeding will undermine future
confidence in its objectivity
I also agree with Jacobs and Kuttner, supra, that the nature of the issue under review may affect the apprehension of
partiality arising from the unconstrained participation of the tribunal before the court. For example, if the question is
whether the tribunal has treated a particular litigant fairly, impartiality may suggest a more limited standing than if the
allegation is that the structure of the tribunal itself compromises natural justice
Although these two considerations are primary and will have to be weighed and balanced in almost every case where
the scope of a tribunal's standing is in issue, there will undoubtedly be other considerations that will be relevant in
particular cases
In this case the Children's Lawyer raises such a consideration. She says that the tribunal's standing should not extend
to defending its decision on a ground that it did not rely on in the decision under review. The argument is that this
"bootstrapping" undermines the integrity of the tribunal's decision-making process. It is akin to the impartiality
concern in that a tribunal seeking to justify its decision in court on an entirely different basis than that offered in its
reasons may well cause those adversely affected to feel unfairly dealt with. However, it goes beyond impartiality. The
importance of reasoned decision [page321] making may be undermined if, when attacked in court, a tribunal can
simply offer different, better, or even contrary reasons to support its decision. Where a tribunal takes such a course,
this will become an important consideration in determining the extent of the tribunal's standing.
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Ultimately, if the legislation does not clearly articulate the tribunal's role, the scope of standing accorded to a tribunal
whose decision is under review must be a matter for the court's discretion. The court must have regard in each case, to
the importance of a fully informed adjudication of the issues before it and to the importance of maintaining tribunal
impartiality. The nature of the problem, the purpose of the legislation, the extent of the tribunal's expertise, and the
availability of another party able to knowledgeably respond to the attack on the tribunal's decision, may all be relevant
in assessing the seriousness of the impartiality concern and the need for full argument
The last of these factors will undoubtedly loom largest where the judicial review application would otherwise be
completely unopposed. In such a case, the concern to ensure fully informed adjudication is at its highest, the more so
where the case arises in a specialized and complex legislative or administrative context. If the standing of the tribunal
is significantly curtailed, the court may properly be concerned that something of importance will not be brought to its
attention, given the unfamiliarity of the particular context, something that would not be so in hearing an appeal from a
lower court. In such circumstances the desirability of fully informed adjudication may well be the governing
consideration.
In addition to fully informed adjudication and tribunal impartiality, there may be other considerations that arise in
particular cases, as the appellant argues here. In the end however, the court must balance the various considerations in
determining the scope of standing that best serves the interests of justice
It remains to apply these considerations to this case to assess whether the Divisional Court erred in exercising its
discretion to dismiss the appellant's attempt to deny or limit the standing of the Commissioner in these judicial review
proceedings
o Several aspects of this case clearly demonstrate the importance of full tribunal participation in the judicial
review to ensure a fully informed adjudication of the issues
o From the beginning, the requester has played no part in the proceedings. As the Divisional Court noted, it
would be left with only one party, the Children's Lawyer, if the tribunal were denied standing
o As well, the specialized nature of the statutory scheme administered by the Commissioner has long been
recognized by this court
o With full standing, the Commissioner's expert familiarity with the statute provides an important assurance of a
fully informed adjudication
o On the other hand, both the nature of the tribunal here and the nature of the issues suggest that the impartiality
consideration is not a significant brake on full standing for the Commissioner
o Similarly the issues raised by this judicial review application are fundamentally ones of statutory
interpretation. Although they arise in a particular factual context, they are not applicable only to the Children's
Lawyer and the requester. If the Commissioner were to address the court on these issues, its ability to act
impartially in future cases, even ones involving this government head and this requester, would not be
adversely affected any more than its original decision on the same issues could be said to carry that
consequence
o The final consideration in this case is the importance of preserving the integrity of the administrative
tribunal's decision making. The appellant argues that this is undermined if the [page323] Commissioner is
given standing to defend her decision in court on an entirely different basis than that offered in her reasons for
decision. There is no doubt that this is a valid consideration. The only question is whether in this case it
warrants curtailing the scope of the Commissioner's standing
 In my view it does not.
 There is no doubt that the Commissioner's original decision that the second branch of s. 19 of FIPPA
did not provide the Children's Lawyer with a basis to refuse disclosure rested on her conclusion that
this provision offered the Children's Lawyer no protection from the individual she represents. It did
not rest on an express finding that the Children's Lawyer was not "Crown counsel" in the
circumstances.
 In the Divisional Court that is the argument the Commissioner sought to put in defence of its decision
 Clearly an administrative tribunal must strive to provide fully reasoned decisions.
 However, I do not think the absence of the "Crown counsel" argument in the decision should
prevent the Commissioner from advancing it to the court on judicial review. It is not
inconsistent with the reason offered in the decision. Indeed it could be said to be implicit in it.
 f the Children's Lawyer was the legal representative of the requester in the proceedings for
which records are sought (the reason relied upon by the Commissioner in her original
decision), it could not have been Crown counsel in those proceedings
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Moreover, the Children's Lawyer was required by this section of FIPPA to positively
establish that it was Crown counsel in order to take advantage of the protection offered by the
second branch of s. 19.
 It appears that the Children's Lawyer did not seek to do so before the Commissioner either by
evidence or argument.
 The result was that the decision under review was simply silent on the question.
 Finally, if the Commissioner's standing were to preclude her from making this argument there
would be no guarantee that the Divisional Court would hear it from anyone else with a
resulting risk to a fully informed adjudication
In summary, I conclude that allowing the Commissioner full standing in the judicial review proceedings assures a
fully informed adjudication of the issues without significantly compromising her impartiality or undermining the
integrity of her decision-making process.
The Divisional Court did not err in exercising its discretion to refuse the appellant's attempt to preclude or limit the
Commissioner's standing
Where a party to a judicial review application seeks to limit the standing of the administrative tribunal, it should do as
the appellant did here.
o It should serve a notice of motion saying why, so that the issue can be properly joined.
o Although this may require additional factums and perhaps additional material, it ought not normally require a
separate preliminary hearing.
o Submissions on this issue can be made at the hearing on the merits of the application.
o If the decision on the scope of standing is reserved, the written and oral submissions of the tribunal on the
merits that go beyond the scope of standing ultimately permitted will, of course, be disregarded.
o With this approach, the scope of standing issue ought not to unduly complicate judicial review proceedings.
Alternative Remedies
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The courts will sometimes regard the existence of a specific remedy in the empowering statute as excluding the
availability of common law judicial review as a matter of jurisdiction
More frequently however, the question of alternative remedies is dealt with by reference to the courts’ overriding
discretion to refuse relief even where the substance of the applicant’s or plaintiff’s case may have been made out
In such instances the questions to be asked tend to be about the relative or comparative convenience of judicial review
as opposed to the alternative forms of relief that are also available
It is not simply enough to assert that there are alternative avenues of relief available and that, given the historically
“extraordinary” nature of prerogative relief in particular, those other avenues are therefore, the more appropriate ones
to pursue
The issue whether a particular remedy is the more appropriate is not always an easy one to resolve
Statutory Appeals
Harlekin v University of Regina [1979] 2 SCR 561
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Beetz (Martland, Pigeon, Pratte)
The contentions made against the judgment of the Court of Appeal could be summarized in four main propositions:
o (1) failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional
error and the writs should issue ex debito justitiae;
o (2) the decision of the council committee was an absolute nullity from which there could be no appeal to the
senate committee;
o (3) even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate
alternative remedy;
o (4) the principle audi alteram partem had in this case been given statutory force and the Courts should
exercise their discretion with a view to enforcing the statute.
Failure to respect the Principle audi alteram partem and Issuance of the Writes ex debito Justitiae
The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed
And mandamus is certainly not less discretionary than certiorari
o The award of the writs usually lies within the discretion of the court. The court is entitled to refuse certiorari
and mandamus to applicants if they have been guilty of unreasonable delay or misconduct or if an adequate
alternative remedy exists
159
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On applications by subjects for certiorari to remove indictments the courts have always exercised a very wide
discretion
o The fact that some of the prerogative writs were discretionary came to be directly linked with their
designation as prerogative writs. Thus, in one case, it was said: "An application for mandamus is an
application to the discretion of the court; a mandamus is a prerogative writ and is not a writ of right".
o But although none of the prerogative writs is a writ of course, not all are discretionary.
 Prohibition, for example, issues as of right in certain cases, and habeas corpus ad subjiciendum, the
most famous of them all, is a writ of right which issues ex debito justitiae when the applicant has
satisfied the court that his detention was unlawful. These two writs, therefore, are not in the fullest
sense writs of grace
Over the years, the courts have elaborated various criteria which provide guidance as to how the discretion should be
exercised. In the process, the area of discretion has been more or less reduced depending on the circumstances of each
case. In some cases, particularly those involving lack of jurisdiction, courts have gone as far as to say that certiorari
should issue ex debito justitiae
it has also been said that certiorari should issue ex debito justitiae where there was a denial of natural justice.
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and
mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law
Ex debito justitiae literally means "as of right", by opposition to "as of grace"
a writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito
justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for
refusal
A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as
those involving a breach of natural justice
o Beetz held that breach of the reuls of natural justice did not nullify a decision and he contrasted such breaches
with a want of jurisdiction
o In the alternative he held that, even if the effect of the breach was to nullify the council’s decision, a fair
reading of the relevant appeal provision led him to the conclusion that such “nullities” were subject to it
Whether appellants right of appeal to the Senate committee was an adequate remedy: The balance of
convenience
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative
remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have
been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its
powers and the manner in which they were probably to be exercised by a body which was not a professional court of
appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a
previous finding, expeditiousness and costs
o There was nothing in the University’s bylaws or statute with respect to procedures to be followed by the
senate appeals committee at the time
In my view, appellant was not entitled to assume that, because of the lack of such by-laws at the relevant time, the
senate committee would have denied him a hearing within the meaning of s. 33(1)(e) of the Act. Nor should he have
assumed that, since of the governing bodies of the university had erroneously failed to comply with the principles of
natural justice, another governing body of superior jurisdiction would do the same
Section 33(1)(e) of the Act does not spell out the detailed powers of the senate appeals committee but there is no
reason to doubt that such powers comprise the ordinary powers of an appellate jurisdiction including, if the appeal be
allowed, the power to set aside the decision of the council committee and render on the merits the decision that the
council committee should have rendered or send it back before the council committee for a proper hearing. There is
thus no jurisdictional lacuna in the senate committee which could have prevented it from giving full justice to
appellant
One should also expect that, in this context, an appeal is more likely to take a form resembling that of a trial de novo
than that of a "pure" appeal. There are three main reasons for this.
o First, nothing in the Act nor in the new by-laws indicates that the council committee's record shall be
transferred to the senate committee on an appeal from a council committee decision.
o Second, university bodies like the Faculty of Social Studies and the council are not courts of records
o The third reason why an "appeal" within a university should not be given a restricted or technical meaning
flows from the fact that the members of a university appeal committee are not usually trained in the law
160
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In the case at bar, in so far as an appeal to the senate committee would have taken the form of a trial de novo,
appellant would not have been confronted with the adverse finding of the council committee.
o But even if this appeal to the senate committee had not taken the form of a pure trial de novo, appellant would
still not have been confronted with such an adverse finding, since the senate committee would have been
bound, as a matter of law, to set aside the decision of the council committee which was vitiated by the failure
to hear appellant.
o Again it should not be presumed that the senate committee would have erred in law and decided that appellant
was not entitled to be heard by the council committee.
o It must be assumed that the senate committee would have reached the correct decision and, if it did not, a
superior court could quash its decision
The only finding against him, if it can be called a finding, would have been that of the Faculty of Social Work.
o But this finding was already before the council committee. Appellant being the grievor, would have had the
burden of establishing that his examination papers had been improperly marked; again this burden would
have been upon him before the council committee
As to the contention that difference in membership between the senate committee and the council committee should
result in a difference in approach to the issue, it does not in my view carry great weight.
o Appellant could not expect the members of either committee themselves to read and re-mark his examination
papers. This could not be part of their function and they would be unable to do so, the members of the council
committee because they would in the main be academics of different disciplines, and the members of the
senate committee, because they would be students and lay members
o I fail to see how appellant could complain that his case be decided by the body whom the legislature has
placed in the superior position.
For the same reasons, I do not see much substance in the assertion that appellant was in effect deprived of his right of
appeal to the council committee. This may be so, but it is of little importance where the superior appellate jurisdiction
is equipped with the means to remedy all injustices
I have reached the conclusion that appellant's right of appeal to the senate committee provided him with an
adequate alternative remedy.
o In addition, this remedy was in my opinion a more convenient remedy for appellant as well as for the
university in terms of costs and expeditiousness
If appellant had followed throughout the wise counsel given to him at the beginning by his advocate Ms. Lemire to
settle his difficulties with the mechanisms which existed within before going to an outside body, he would have saved
a great deal of time and money.
o But he has from the start shown a preference for external forums beginning with the Ombudsman and
hindering the initial review of his academic situation. He has now gone before three Courts.
o Three years after the event, the merits of his case remain undetermined from an academic point of view.
o Furthermore, and as was conceded by his counsel, there remains some uncertainty as to the modalities of a
hearing before the council committee, more particularly with respect to his right to counsel.
His counsel did not foreclose the right to challenge any decision of the council committee on this point.
o It is therefore possible that if appellant were successful in this Court and the council committee refused him
permission to be represented by counsel, appellant would, instead of going before the senate committee, again
apply for certiorari and mandamus with consequential appeal and that a few more years and considerably
more money would be lost before a final determination of his case could even be considered.
o If this is the law, then the law has reached a dangerous stage of complication for all of appellant's difficulties
could have been resolved fairly, within a reasonable time and at little cost to himself and to the university had
he simply wanted to use all the remedies put at his disposal by the Act
The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a
right
o Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to
call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If
however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be
governed by considerations which tend to the speedy and inexpensive as well as efficacious administration
of justice ...
One last point should be mentioned in relation to appellant's right to alternative remedies, namely appellant's right to a
rehearing before the council committee. It will be recalled that appellant's counsel had unsuccessfully asked for a
rehearing, and this is a factor which must be weighed together with all the others.
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council committee's refusal to grant a rehearing to appellant is not a sufficient reason, in my view, for issuing
certiorari and mandamus
Beetz then went on to reject the argument that the appelant’s case was strengthened by the fact that the hearing was
statutorily mandated, rather than judicially implied by stating
o The Act countenances the domestic autonomy of the university by making provision for the solution of
conflicts within the university
o Sections 78(1)(c) and 33(1)(e) are in my view inspired by the general intent of the Legislature that intestine
grievances preferably be resolved internally by the means provided in the Act, the university thus being given
the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with
expeditiousness and low cost for the public and the members of the university.
o While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a
clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means
of discretionary writs whenever it is still possible for the university to correct its errors with its own
institutional means.
o In using restraint, the courts do not refuse to enforce statutory duties imposed upon the governing bodies of
the university. They simply exercise their discretion in such a way as to implement the general intent of the
Legislature.
Dickson (Spence and Estey  dissenting)
Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding
a right of appeal to an administrative or domestic body, where that body exercises purely appellate functions
This point raises the general issue of the discretionary nature of certiorari. In this context the authorities, as I have
earlier indicated, draw a distinction between jurisdictional and non-jurisdictional error and between a right of appeal
to an administrative or domestic tribunal and a right of appeal to the courts. Generally speaking, the rule is that, if the
error is jurisdictional, certiorari will issue ex debito justitiae, but if the error is error in law, then in the absence of a
privative clause, certiorari may issue
Counsel has not cited a single case, and I know of none, in which certiorari has been denied when the ground of
complaint has been failure to accord a statutory right resulting in a denial of natural justice and the appeal is to a
domestic tribunal exercising purely appellate functions
Generally speaking, certiorari is a matter of discretion. The discretion must, of course, be exercised judicially and, in
the absence of something in the circumstances of the case which makes it proper to refuse the relief, the writ will issue
ex debito justitiae in an excess of jurisdiction situation
Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but, in each case,
the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy
The nature of the error will also be a circumstance for consideration. If the loss of jurisdiction derives from a
misinterpretation of a statute, a statutory right of appeal may well be adequate. On the other hand, a breach of natural
justice in all but the rarest of cases will render inadequate the remedy. A possible exception is the availability of a
hearing de novo on appeal to a body exercising original jurisdiction
The nature of the appellate body may also be of concern. Where a statutory right of appeal is provided directly to the
courts, the reviewing court is more likely to refuse certiorari, especially on questions of statutory interpretation
On the other hand, as one moves away from a right of appeal to the courts to a right of appeal to a statutory tribunal or
an appeal to administrative officials, even and, ultimately, domestic bodies the alternative remedies are more
frequently found to be inadequate
The capacity of the remedial body may be of importance. Where the body which may grant the remedy exercises
original jurisdiction perhaps even hearing the matter de novo, the remedy will be more often perceived as adequate,
even conceivably in cases of denial of natural justice. On the other hand, the normal sort of purely appellate function
will rarely be seen as capable of curing a breach of natural justice
o Dickson then held that, save in exceptional circumstances not present here, breach of the rules of natural
justice cannot be cured on appeal
It is the convenience and adequacy of the alternative remedy, i.e. an appeal to the senate appeals committee, which
should be the focus of attention. The case at bar, in my opinion, is a classic example of the situation where the
discretion of the reviewing court is "nominal" and, upon the facts, ought to be exercised in favour of Mr. Harelkin.
The fundamental reason underlying all of this is that an appeal is simply not a sufficient remedy for the failure to do
justice in the first place.
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The ground of appeal would be that the council committee had erred in failing to afford the student an opportunity to
be heard. The appeals committee would be placed immediately in the invidious position of having to decide, as a
question of law, an issue already decided in favour of the student in the Saskatchewan Courts.
o What then would be the proper course for the appeals committee
 send the matter back to council for rehearing?
 Hear the case anew despite its appellate role? Does the senate appeals committee have the power to
do either?
A person appealing a decision made against him without a hearing is at a grave disadvantage.
o At the first level, the burden of persuasion lies with the other side to show some reason why a decision
adverse to this individual should be made.
o At the appeal level the burden changes. The present case is a good example.
o Should Mr. Harelkin be expected to go to the senate not knowing what has been placed against him at council
or the real reason for his expulsion--bad marks or neurosis?
There are no minutes of the committee of council available. There is nothing to show whether the real core of Mr.
Harelkin's complaint--that he was being rejected because of mental instability rather than low marks--was ever placed
before the committee.
o If the appeal body were specifically charged with determining whether the lower decision was properly made,
and if not, that it should remit the matter to the lower level for rehearing, the matter might be different
The dynamic of ascending rigidity is readily apparent in structures such as a university.
o Who could possibly pretend that a student starts the day with as fair a chance in a hearing before the
university senate, or its committee, faced with adverse decisions from the faculty studies committee and a
council committee, both made with no hearing, as he would have before the first body to have considered the
matter?
The key decision is by the academic committee. Thus, it is before this Committee that the person should be heard
above all
o the present weight of authority appears to support the view that a breach of natural justice in the first instance
can be rectified only by a full and fair de novo hearing given either
 (i) by the body perpetrating the original breach, or (if possible) a differently constituted body with the
same powers and status, or
 (ii) (exceptionally) an appellate body, if that body also has original jurisdiction and exercises that
jurisdiction in the particular case
Mr. Harelkin should be able to look to the courts for relief if he is treated unfairly by the council, regardless of what
might have occurred before the senate, had he pursued that route.
o At the time he was faced with the choice of senate appeal or certiorari he had no assurance that he would be
heard by the senate appeals committee.
o The council committee, whose statutory duty to "hear and decide" was framed in the same terms as senate,
had preferred an in camera session from which he was excluded.
o There was nothing, at the time, to say that senate would not adopt the same attitude.
o The fact that the senate has adopted procedural safeguards since these proceedings were initiated clarifies that
issue for the future, but it does not, in any way, in my view affect the outcome of this appeal
The student in the case at bar has not waived his right to either hearing, and it would be wrong, in my view, to deny
him that which the statute expressly accords him.
On the footing (i) that the council of the University of Regina had no jurisdiction to deny the appellant a hearing, and
(ii) that the appeal given the appellant is administrative and not to the courts, there is simply no authority for the
decision of the Court below
Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3
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Lamer (Cory, L’Heureux-Dube, Sopinka, Gonthier and Iacobucci)
The respondents argue that their land is not "in the reserve" as required by s. 83(1)(a) of the Indian Act, and therefore
the land may not be taxed by the appellant bands under their new tax assessment powers. This Court is not being
asked to determine whether the land is, or is not, "in the reserve". Instead, we must decide whether Joyal J. properly
exercised his discretion in refusing to entertain the respondents' application for judicial review, thereby requiring the
respondents to pursue their jurisdictional challenge through the appeal procedures established by the appellant bands
under s. 83(3) of the Indian Act
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Though this Court is not faced with the issue of Aboriginal self-government directly, the underlying purpose and
functions of the Indian tax assessment scheme provide considerable guidance in applying the principles of
administrative law to the statutory provisions at issue here. I will therefore employ a purposive and functional
approach where appropriate in this ruling
o Lamer here considered whether the tribunals had authority to even entertain the question whether the land in
question was “in the reserve”. After accepting that the issue was indeed a jurisdictional one, he nonetheless
concluded that the appeal bodies could consider this question, ableit that their conclusions on it would attract
little deference on subsequent review
Parliament clearly intended bands to assume control over the assessment process on the reserves, since the entire
scheme would be pointless if assessors were unable to engage in the preliminary determination of whether land should
be classified as taxable and thereby placed on the taxation rolls. Given this, I see no reason to interpret s. 83(3) of the
Indian Act as authorizing appeal procedures related only to the valuation step of the assessment process
o Lamer then embarked on a consideration of whether the appeals constituted an adequate alternative remedy
citing Harlekin with approval
On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether
they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory
appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the
nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities).
In this case, when applying the adequate alternative remedy principle, we must consider the adequacy of the statutory
appeal procedures created by the bands, and not simply the adequacy of the appeal tribunals. This is because the
bands have provided for appeals from the tribunals to the Federal Court, Trial Division
o Lamer then held that Joyal J. had not erred in taking into account the policy considerations behind the
assessment bylaws. As well he held that the creation in the bylaws of a right of appeal from the appeal
tribunal to the Federal Court Trial Division had implicit statutory authoriziation. He then went on to
consider the adequacy of the alternative remedies
In the case of the adequate alternative remedy principle, the question which should be posed is: Is an appeal tribunal
established under s. 83(3) of the Indian Act an adequate forum for resolving, at first instance, the respondents'
jurisdictional challenge? This does not necessarily require a finding that the tribunals are a better forum than the
courts.
o Having considered the factors raised by both Joyal J. and Pratte J.A., I find that it was not unreasonable for
Joyal J. to conclude that the appeal tribunals are an adequate forum.
o Whether or not Joyal J. was wrong to conclude that the tribunals are a better forum is irrelevant. As Joyal J.
noted, a hearing before the appeal tribunal will allow for a wide-ranging inquiry into all of the evidence.
o Moreover, although the issues may be complex, to suggest (as Pratte J.A. does) that the appeal tribunals are
ill-equipped to consider such issues is contrary to the intention of Parliament, as evidenced by s. 83(3) of the
Indian Act.
o When Parliament required bands to establish appeal procedures on both the classification and valuation
aspects of the assessment process, Parliament must have believed that the appeal tribunals would be capable
of resolving the issues on which they had authority to adjudicate. Otherwise, the existence of a requirement
that appeal procedures be established makes no sense
Section 18.3(1) allows an appeal tribunal to seek the guidance of the courts if it encounters legal, procedural or other
issues which it cannot resolve
On the basis of my analysis above, I would conclude that it was not unreasonable for Joyal J. to consider the
following factors in exercising his discretion
o The appeal tribunals are an adequate forum for considering at first instance the issue raised by the
respondents. In particular, it was not unreasonable to conclude that the appeal tribunals would be an adequate
forum on the basis that a far-reaching and extensive inquiry could be conducted in which both sides could
fully present their evidence and arguments
o The statutory appeal procedure provides to the respondents an appeal from the appeal tribunals to the Federal
Court, Trial Division. Effectively, the respondents will be able to bring their case before the Federal Court,
Trial Division, which may fully review the findings of the appeal tribunals. Any decision of that Court will
have the force of res judicata. To deny the respondents judicial review in no way prevents them from
obtaining a full judicial examination of the issue of whether their lands are "in the reserve”
o The purpose of Parliament in enacting the Indian tax assessment scheme was to promote the development of
Aboriginal governmental institutions. It is therefore preferable for issues concerning Indian tax assessment to
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be resolved within the statutory appeal procedures developed by Aboriginal peoples. In particular, it is
preferable that assessment errors be corrected within the institutions of the bands
Lamer did, however, go on to hold that Joyal had erred in failing to take into account the appeal tribunal’s lack of
independence
Notes after CP
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Concern about whether an appeal tribunal can afford appropriate relief is one concern
o For example whether or not the appeal tribunal could dismiss the proceedings of a junior board that is
investigating a complaint (Misra v College of Physicians and Surgeons (Sask))
In some situations it may be better to have the administrative tribunal hear the matter
o For example where there are multiple issues being heard at the same time in front of the tribunal and there is
the potential for divergent results
o CNR and the OMB case about the railway lands in Toronto and the court refused to deal with it
Statutory Appeals to the Courts
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In addition to cases where the argument is based on the exhaustion of the administrative process through recourse to
statutory appeals to higher tribunals or, sometimes, applications for reconsideration, claims of a sufficient statutory
right of appeal also surface when someone has commenced an application for judicial review rather than using a
statutory right of appeal to the courts provided for in the empowering statute
Remedies
An important consideration is when review should be used and when alterative remedies should be pursued
Should remember that in different provinces the procedures for pursuing different remedies are different
Also JR is often very complex, time consuming and expensive  not everyone can afford the time and money
involved
Also costs may not follow a successful JR application as with other court proceedings
Success of a JR application does not necessarily entail ultimate success for the applicant
Also there is a balancing that goes into whether or not you want to pursue a JR  need to maintain a working
relationship with the other side and going through a JR may not be the best way to keep that relationship alive
Remedies from JR also are often dictated by the substance of JR  what comes out of JR is often a product of what
goes into it in the first place
There are three major issues in respect of remedies
o In relation to applications for interlocutory reliefe to prevent governmental action pending the determination
of an application for JR
o Arguments to the effect that the court, as a matter of discretion and irrespective of the merits of the claim
being advanced, should deny relief
o Problems of standing to seek JR
There are some key questions that may arise at the remedial end of a case
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Are there alternatives other than recourse to the courts for resolving the matter in dispute?
If recourse to the courts appears to be the only or indicated course of action what is the nature of that recourse
o Judicial review or some other form of common law, equitable or statutory remedy (such as a right of appeal)
If judicial review is the appropriate course of action, is the matter in dispute one that involves federal or provincial
agencies?
Within the options provided by the public law of judicial review what is the nature of the relief that is needed
Are there any limitations on the availability and scope of judicial review as manifested in leave to apply requirements,
privative clauses, limitation periods, and immunities from suit and testifying
From the perspectives of procedure and evidence is the matter one that is capable of satisfactory resolution based on
affidavit evidence in the context of summary proceedings or is a trial type process with viva voce evidence more
desirable
Is there any potential problem with the standing of the person seeking judicial review
Are there any discretionary reasons that may cause a court to refuse or limit the relief that is available
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The matter of remedies is in many respects a highly technical aspect of the law of judicial review
Knowledge of and an ability to work with the details counts
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Nonetheless that should not distract one from inquiring constantly as to the efficacy of the remedial scheme that the
Canadian courts, legislatures and court rules committees have fashioned
As the courts have come to see themselves as liberated from the shackles of the old forms of action with their
excessive technicalities and as remedial issues have been reduced more and more to exercises of judicial discretion,
the questions raised in any judicial consideration of remedial issues are far more likely to be of this variety
The origins of judicial review of administrative action are found in the various prerogative writs by which the
monarch through the agency of the Court of King’s or Queen’s Bench controlled the exercise of authority by officials
acting or purporting to act under royal or parliamentary authority
Thus the most common of them, certiorari was associated in its earliest history with the proceedings of inferior courts
of record as personified in magistrates and justices of the peace and the very early administrative tribunals such as the
commissioners of sewers
It was a process by which the formal record of the proceedings before such bodies was directed to be delivered up to
the Court for inspection to enable the court to be informed
If that record revealed that the body was acting without jurisdiction or somewhat later in the development of the
record of certiorari had committed an error of law on the face of the record the process would be quashed
In essence certiorari and the other prerogative writs – mandamus, habeas corpus and prohibition – were primarily
vehicles for ensuring that the administrative arms of government were kept under control and did not exceed their
powers
In other words it was a system of review aimed at the control of public as opposed to private bodies
Later on certain private law remedies – the injunction and declaration – expanded and became available for public law
as well
Also some of the substantive bases of judicial review are not exclusive to public law
The issue of whether the body is public or private may arise in the context of whether or not its decisions can be
reviewed at all
o Governments  to some extent – are under higher obligations that private actors
o Often this distinction comes down to whether the source of the power is legislative  is it’s power statutorily
based
The Impact of Statutory Remedial Regimes
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The language of statutes such as Ontario’s Judicial Review Procedures Act in which the remedies of public law are
not only replaced but consolidated and codified in a single application for JR can have an impact on the extent of
relief
Three things need to be noted about the BC and Ontario Acts
o Some question as to whether the remedies that provide the reference point for the new application for JR
created in the Acts were to be given the content that they had at the time of the creation of the new remedy or
whether their content should be delineated on the basis of the scope that they came to possess in other
jurisdictions over the course of time  now seems clear that their content is not frozen in time at the time of
the enactment of the statutes
o There is an issue as to the meaning and impact of the words “in the nature of”  prior to the enactment of
these statutes the courts did not issue the prerogative writs rather as a result of earlier procedural reforms they
issued orders in the nature of writs  this would seem to suggest that the use of this language in the Acts had
no objective other than a reference to the existing terminology of public law relief
o Reference should be made to the somewhat different terms in which the new remedy in both statutes
encompasses prerogative style relief, on the one hand, and injunctive and declaratory relief on the other. The
purpose in linking relief by way of declaration and injunction to the exercise of a statutory power always
seemed fairly clear  the object of the Act was to capture only the public, not the private law uses of those
remedies. As far as relief in the nature of the traditional prerogative writs was concerned such a limitation or
qualification was unnecessary; of their very nature they were only public law remedies
What remains clear is that the availability of declaratory and injunctive relief under the BC and Ontario Acts is
contingent on there being an exercise of statutory power and that that requirement may have the effect of removing
from the ambit of the Act some aspects of the modern uses of declaratory and injunctive relief as public law remedies
To the extent that relief in the nature of certiorari might now be conceived to be a general all purpose public law
remedy appropriate for all exercises of public power that may not be a problem
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Now it is clear that “legislative” functions do not attract procedural fairness obligations it seems as though courts are
persisting in linking certiorari to situations where challenged authority is one required to afford procedural fairness
obligations thereby excluding attacks on the exercise of legislative functions on a substantive basis
The converse of this issue is the question of whether the fact that a body has been created by statute is itself sufficient
to bring it within the ambit of the Judicial Review Procedure Act
Excluded Public Bodies
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Superior Courts  superior courts are exempt from the exercise of the prerogative writs
The Crown  used to be exempt from the application of the writs
o However with the advent of Crown proceedings and liability legislation this has changed
o Courts regularly assert jurisdiction to award mandamus against the Crown on the basis that the duty in
question is one that was owed to the applicant
 If it is a duty that is owed to the Crown then immunity is still active
o Injunctive relief against the Crown
o Often have a party seeking to enjoin a statutory body from acting in breach of a contract or in disregard of a
statute
Canada (Attorney General) v Saskatchewan Water Corporation (1993), 18 Admin. LR (2d) 91 (Sask. CA)
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The AG and private citizens commenced an action against the Corp for an injunction to prevent them from continuing
to construct dams. The claimed the construction was contrary to federal law and breached an agreement entered into
between one of the corporations and the federal government, the objective of which was to ensure compliance with
federal law and environmental impact assessment legislation in particular. Applications were made for interlocutory
injunctions halting construction until such time as the principal issues could be determined
In their concept of Crown immunity, both of these judges (and the judge in the present case) appear to equate
ministers, officers, servants and agents of the Crown with the Crown itself. In their analyses there is no room for a
distinction between powers of the Crown itself, on the one hand, and the powers of the ministers, officers, servants
and agents of the Crown exercised by them as such, on the other. In their view all of these persons and institutions
enjoy, and the power they exercise attract, Crown immunity, equally and fully
In my respectful view these notions are fundamentally flawed
o It is of primary constitutional importance that ministers should not be confused with the Crown. All the
ordinary powers of government, subject to relatively few exceptions, are conferred by statute upon ministers
in their own names and not upon the Crown. The ministers are of course servants of the Crown and exercise
their powers as such. But they have never enjoyed the Crown's immunities. That is why compulsory orders
such as mandamus, which do not lie against the Crown, are available against ministers
o Ministers and other officers of the Crown have never been liable in a representative capacity, i.e. merely as
the superiors of officers of lower rank. All are servants of the Crown and not of one another. Only those who
specifically ordered or committed the wrong are legally liable (as principals), together with the Crown (as
employer) since the Crown Proceedings Act 1947.
o The Crown Proceedings Act 1948 was a remedial statute, designed to put the Crown, so far as it could
properly be done, into the position of an ordinary litigant, so that justice could be done without obstruction by
the Crown's ancient immunities
to determine whether the Crown immunity preserved by s. 17 attaches to a particular governmental person or agency
one looks not only at who the person or agency is but at what function or power the person or agency is exercising at
the critical time. If it is a function or power of the Crown, immunity attaches. If it is a function or power conferred by
statute upon the person himself or the agency itself, immunity does not attach.
Before digressing I indicated that one does not look only at who the governmental person or agency is to determine if
Crown immunity attaches but at what function or power that person or agency was exercising at the critical time. It is
essential, therefore, to examine and assess the powers and the functions the Corporation was exercising at the time it
entered into the agreement of 26 January 1990 and at the time of the alleged breach.
There can be no doubt that the words contained in s. 4 do not have the effect of making the statutory powers and
function of the Corporation as set out in the Act into powers and functions of the Crown. The phrase "agent of the
Crown", appearing in s. 4(1), has no magical quality to it
Similarly, in the present case the powers and purposes outlined in ss. 16(1)(a), (b), (g), (i) and (j) of the Corporation's
constituting statute do not contain anything to suggest that they are other than statutory powers conferred directly
upon the Corporation.
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They are not powers exercisable by Order-in-Council, proclamation, writ or in some such other form as to
indicate that they are powers of the Crown as opposed to statutory powers conferred directly upon the
Corporation. It is true that s. 16(2) requires that in certain instances the power described in ss. 16(1)(g) may
be exercised only with the prior approval of the Lieutenant Governor in Council. But that does not transmute
that power into a power of the Crown
o It follows that in entering into the agreement of 26 January, the Corporation could not have been
exercising a power of the Crown: it had no such power
Quoting from Hogg
o When a Crown agent is sued in his own right, no defence of Crown immunity is available to the Crown agent
o Whenever the law deems the Crown agent to be liable in its own right, the Crown agent loses the protection
of the Crown's immunities. By affirming that a Crown agent may be liable in its own right in tort and contract,
the courts have carved out an important exception to the Crown's immunities. It is without doubt judicial
hostility to these immunities that is one reason for the readiness of the courts to extend the sphere of the
Crown agent's personal liability
The Corporation argues that if one examines the history of this case in its entirety, it becomes clear that while the
respondents are technically responsible for building the dams, and the Corporation was technically the party to the 26
January agreement, it was really the Government of Saskatchewan itself which has been the prime mover in all of the
events which led to this application. Thus, while an injunction would technically issue against the respondents as
agents of the Crown, it would in actuality operate against the Crown. And, the Crown should be immune
In effect the Corporation is requesting the same immunity that an officer of the Crown has by virtue of s. 17(4) of The
Proceedings against the Crown Act.
There are two reasons (in addition to the other reasons reflected in the foregoing analysis) why this argument is
untenable.
o In the first place the Act does not give s. 17(4) immunity to an agent of the Crown, only to an officer of the
Crown. Had the legislature wanted to give them the same s. 17(4) immunity as officers it could easily have
included agents in s. 17(4).
o In the second place, as emphasized by Professor Wade, an officer gets s. 17(4) immunity in only those cases
where he is exercising a function or power of the Crown not where he is exercising a function or a statutory
power conferred upon him directly.
o It follows that even if s. 17(4) immunity were available to an agent it would be available only where he is
exercising a function or power of the Crown. And, as already has been shown, the Corporation was not at any
time exercising a function or power of the Crown.
o The Corporation's argument simply cannot be given effect
Interim and Interlocutory Relief and Stays of Proceedings
Would be unnecessary to look at these areas if the mere filing of an application for JR acted as a stay on further
proceedings in the matter  but it does not
There is some authority that the service of an application for certiorari automatically stays a tribunal’s proceedings
until such a time as the application has been determined
o Using the SCC case of R v. Batchelor some have questioned whether it would be applicable to civil
proceedings but it is doubtful
The halting of proceedings is seen more as a courtesy than anything else
One argument for applying Batchelor in civil proceedings is the requirement that the tribunal furnish its record in
response to the request for JR  it would then not have the record on which to continue
o However in the modern age of computers this is not a real issue
In the modern judicial review regimes, express provision is made for the award of interim relief pending the
disposition of an application for judicial review
These provisions overcome an apparent limitation of the prerogative remedieis  interim relief was not available as
an adjunct to the seeking of such relief
This seemingly obliged those needing interim relief to proceed by way of an action for an injunction, a context in
which interim relief was obviously available
However, absent remedial reform, some courts asserted the availability of another form of interim remedy  an
application to stay proceedings
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In general the availability of interim relief to halt the administrative process, whether in the form of a stay of
proceedings or interlocutory injunction or order under the relevant judicial review procedure legislation or rules, tends
to be subject to the same general principles that govern the availability of interim injunctions in the private domain
However, the public interest in the efficient and timely exercise of statutory power looms as an explicity consideration
in the balancing of the various interests involved and serves to differentiate thse kind of cases from most situations in
which interlocutory relief is sought in private litigation
In recent years another potential use of interlocutory relief in the context of the administrative process has come to the
fore. While the bulk of the litigation is still about attempts to prevent the administrative process from proceeding
pending the disposition of an application for judicial review, the possibility has emerged of seeking interlocutory
relief in aid of the administrative process  to prevent actions being taken by those subject to that process pending
the conclusion of a hearing or investigation
Manitoba (Attornery General) v. Metropolitan Stores (MTS) Ltd. [1987] 1 SCR 110
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After a union application to the Man. Labour Relations Board for the imposition of a first contract the employer
sought a declaration that the provisions of the Man LRA authorizing such contracts violated the Charter. The
employer also sought a stay of further proceedings by the board until the Court disposed of the Charter challenge 
when the judge refused the stay the Board indicated its intention to impose a first contract if one were not negotiated
by a specified date  Man Court of Appeal allowed an appeal from the refusal to grant a stay, AG then appealed to
SCC
Beetz (McIntyre, Lamer, LeDain, LaForest)  summarized the facts and the judgments below before proceeding to
deal with an argument that there should be a presumption of validity for the purposes of interlocutory relief where a
statutory regime was being challenged for lack of conformity with the Charter
o This argument was rejected  if it were a true presumption it would be open to rebuttal and this would not be
appropriate in the context of interlocutory proceedings because it would lead to lengthier hearings contrary to
the intent of such avenues of relief
o The court also noted that the recognition of such a presumption was not desireable, given the innovative and
evolutive character of the Charter
The second question in issue involves a study of the principles which govern the granting of a stay of proceedings
while the constitutionality of a legislative provision is challenged in court by the plaintiff.
It should be observed that none of the parties has disputed the existence of the discretionary power to order a stay in
such a case and, in my view, the parties were right in conceding that the trial judge had jurisdiction to order a stay
A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different
test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the
courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect
to interlocutory injunctions
The case law is abundant as well as relatively fluid with regard to the tests developed by the courts in order to help
better delineate the situations in which it is just and equitable to grant an interlocutory injunction. Reviewing it is the
function of doctrinal analysis rather than that of judicial decision-making and I simply propose to give a bare outline
of the three main tests currently applied.
The first test is a preliminary and tentative assessment of the merits of the case, but there is more than one way to
describe this first test. The traditional way consists in asking whether the litigant who seeks the interlocutory
injunction can make out a prima facie case. The injunction will be refused unless he can
o The House of Lords has somewhat relaxed this first test in American Cyanamid Co. v. Ethicon Ltd., [1975] 1
All E.R. 504, where it held that all that was necessary to meet this test was to satisfy the Court that there was
a serious question to be tried as opposed to a frivolous or vexatious claim
In the case at bar, it is neither necessary nor advisable to choose, for all purposes, between the traditional formulation
and the American Cyanamid description of the first test:
o the British case law illustrates that the formulation of a rigid test for all types of cases, without considering
their nature, is not to be favoured
o In my view, however, the American Cyanamid "serious question" formulation is sufficient in a constitutional
case where, as indicated below in these reasons, the public interest is taken into consideration in the balance
of convenience.
o But I refrain from expressing any view with respect to the sufficiency or adequacy of this formulation in any
other type of case
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The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the
injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages.
o Some judges consider at the same time the situation of the other party to the litigation and ask themselves
whether the granting of the interlocutory injunction would cause irreparable harm to this other party if the
main action fails.
o Other judges take the view that this last aspect rather forms part of the balance of convenience
The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance
of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or
refusal of an interlocutory injunction, pending a decision on the merits
I now propose to consider the particular application of the test of the balance of convenience in a case where the
constitutional validity of a legislative provision is challenged
As Lord Diplock said in American Cyanamid, supra, at p. 511
o there may be many other special factors to be taken into consideration in the particular circumstances of
individual cases.
o It will be seen in what follows that the consequences for the public as well as for the parties, of granting a
stay in a constitutional case, do constitute "special factors" to be taken into consideration
when the constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be
restricted to the application of traditional criteria which govern the granting or refusal of interlocutory injunctive relief
in ordinary private or civil law cases. Unless the public interest is also taken into consideration in evaluating the
balance of convenience, they very often express their disinclination to grant injunctive relief before constitutional
invalidity has been finally decided on the merits
The limited role of a court at the interlocutory stage was well described by Lord Diplock in the American Cyanamid
case, supra, at p. 510
o It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on
affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult
questions of law which call for detailed argument and mature considerations. These are matters to be dealt
with at the trial
Lord Diplock's dictum, just quoted, should a fortiori be followed for several reasons in a Charter case and in other
constitutional cases when the validity of a law is challenged
o First, the extent and exact meaning of the rights guaranteed by the Charter are often far from clear and the
interlocutory procedure rarely enables a motion judge to ascertain these crucial questions
 Constitutional adjudication is particularly unsuited to the expeditious and informal proceedings of a
weekly court where there are little or no pleadings and submissions in writing, and where the
Attorney General of Canada or of the Province may not yet have been notified as is usually required
by law
 the factual situation as well as the law may be so uncertain at the interlocutory stage as to prevent the
court from forming even a tentative opinion on the case of the plaintiff
o Furthermore, in many Charter cases such as the case at bar, some party may find it necessary or prudent to
adduce evidence tending to establish that the impugned provision, although prima facie in violation of a
guaranteed right or freedom, can be saved under s. 1 of the Charter. But evidence adduced pursuant to s. 1 of
the Charter essentially addresses the merits of the case
 a court is not at the interlocutory stage in an adequate position to decide the merits of a case even
though the evidence that is likely to be adduced under s. 1 seems of little weight
 The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so
when the issue is constitutional
o In addition, to think that the question of constitutional validity can be determined at the interlocutory stage is
to ignore the many hazards of litigation, constitutional or otherwise
"the courts have sensibly paid heed to the fact that at the interlocutory stage they cannot fully explore the merits of the
plaintiff's case". At this stage, even in cases where the plaintiff has a serious question to be tried or even a prima facie
case, the court is generally much too uncertain as to the facts and the law to be in a position to decide the merits.
Although constitutional cases are often the result of a lis between private litigants, they sometimes involve some
public authority interposed between the litigants, such as the Board in the case at bar. In other constitutional cases, the
controversy or the lis, if it can be called a lis, will arise directly between a private litigants and the State represented
by some public authority
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In both sorts of cases, the granting of a stay requested by the private litigants or by one of them is usually
aimed at the public authority, law enforcement agency, administrative board, public official or minister
responsible for the implementation or administration of the impugned legislation and generally works in one
of two ways.
 Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects
until the question of their validity has been finally determined, or the law enforcement agency is
enjoined from enforcing the impugned provisions with respect to the specific litigant or litigants who
request the granting of a stay.
 In the first branch of the alternative, the operation of the impugned provisions is temporarily
suspended for all practical purposes.
 Instances of this type can perhaps be referred to as suspension cases.
 In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the
impugned legislation which, in the meanwhile, continues to operate with respect to others.
 Instances of this other type, I will call exemption cases
Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which
they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected
legislatures and are generally passed for the common good, for instance: the providing and financing of public
services such as educational services, or of public utilities such as electricity, the protection of public health, natural
resources and the environment, the repression of what is considered to be criminal activity, the controlling of
economic activity such as the containing of inflation, the regulation of labour relations, etc.
o It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a
point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit
of the common good.
While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to
deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the
invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of
convenience and is given the weight it deserves.
o As could be expected, the courts have generally answered this question in the negative.
o In looking at the balance of convenience, they have found it necessary to rise above the interests of private
litigants up to the level of the public interest, and, in cases involving interlocutory injunctions directed at
statutory authorities, they have correctly held it is erroneous to deal with these authorities as if they have any
interest distinct from that of the public to which they owe the duties imposed upon them by statute
suspension cases and exemption cases are governed by the same basic rule according to which, in constitutional
litigation, an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into
consideration in the balance of convenience and weighted together with the interest of private litigants
The reason why exemption cases are assimilated to suspension cases is the precedential value and exemplary effect of
exemption cases.
o Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to
make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same
situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount
to a suspension case.
It seems to me that the test is too high at least in exemption cases when the impugned provisions are in the nature of
regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered
by the public
On the other hand, the public interest normally carries greater weight in favour of compliance with existing legislation
in suspension cases when the impugned provisions are broad and general and such as to affect a great many persons
In short, I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged,
no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public
unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should
carry.
o Such is the rule where the case against the authority of the law enforcement agency is serious, for if it were
not, the question of granting interlocutory relief should not even arise.
o But that is the rule also even where there is a prima facie case against the enforcement agency, such as one
which would require the coming into play of s. 1 of the Canadian Charter of Rights and Freedoms.
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I would finally add that in cases where an interlocutory injunction issues in accordance with the above-stated
principles, the parties should generally be required to abide by the dates of a preferential calendar so as to avoid undue
delay and reduce to the minimum the period during which a possibly valid law is deprived of its effect in whole or in
part
Finally, it is now appropriate to review the judgments of the courts below in light of the principles set out above
The Manitoba Court of Appeal has taken the view that the employer raises "a serious challenge" to the constitutional
validity of the impugned provision and all the parties have conceded that the constitutional challenge is indeed a
serious one.
o The test of a "serious question" applicable in a constitutional challenge of a law has therefore been met
The "irreparable harm" test also clearly appears to have been satisfied
As I read her reasons, Krindle J., at p. 153 implicitly accepted the employer's argument that the imposition of a first
contract was susceptible to prejudice its position
It is difficult to imagine how the employer can be compensated satisfactorily in damages, for instance for the
imposition of possibly higher wages or of better conditions of work, if it is later to be held that the imposed collective
agreement is a constitutional nullity
Krindle J. then considered the balance of convenience and I refer in this respect to the above-quoted parts of her
reasons for judgment.
o I am of the view that she applied the correct principles.
o More particularly, at p. 154, she looked at the public interest and at the inhibitory impact of a stay of
proceedings upon the Board, in addition to its effect upon the employer and the union
While this is an exemption case, not a suspension case, and each case, including a fortiori an exemption case, turns on
its own particular facts, yet, the inconvenience suffered by the parties is likely to be quite similar in most cases
involving the imposition of a first collective agreement.
o Accordingly, the motion judge was not only entitled to but required to weigh the precedential value and
exemplary effect of granting a stay of proceedings before the Board.
o I have not been persuaded that she committed reversible error in concluding that "the granting of a stay in
this case would invite the granting of stays in most other cases of applications for first agreements".
Beetz then proceeded to hold that the Manitoba Court of Appeal had erred in the principles that it adopted with
respect to an appeal from a trial judge’s exercise of discretion. The court had overreached in its perception of the
scope for intervention in such cases. It had also erred in the substantive principles applicable to the grant of stays in
constitutional litigation. On this point Beetz summarized as follows
The Court of Appeal did not exercise its fresh discretion in accordance with the above-stated principles.
o It did not itself proceed to consider the balance of convenience nor did it consider the public interest as well
as the interest of the parties.
o It only urged the parties to be expeditious. But urging or even ordering the parties to be expeditious does not
dispense from weighing the public interest in the balance of convenience.
o It simply attenuates the unfavourable consequences of a stay for the public where those consequences are
limited
The judgment of the Court of Appeal could be construed as meaning that an interlocutory stay of proceedings may be
granted as a matter of course whenever a serious argument is invoked against the validity of legislation or, at least,
whenever a prima facie case of violation of the Canadian Charter of Rights and Freedoms will normally trigger a
recourse to the saving effect of s. 1 of the Charter.
o If this is what the Court of Appeal meant, it was clearly in error: its judgment is in conflict with Gould,
supra, and is inconsistent with the principles set out herein
In RJR MacDonald v Canada [1994] 1 SCR 311 Cory and Sopinka affirmed the approach adopted by Beetz and
elaborated on a number of points from the Met Stores judgment
o The court made it clear that American Cyanamid provided the general test for the availability of interlocutory
relief in Canada in either the public or private domain
 Prior to American Cyanamid an applicant for interlocutory relief was required to demonstrate a
“strong prima facie case” on the merits in order to satisfy the first test
 In American Cyanamid Lord Diplock stated that this was no longer the case  it would now suffice
if one could satisfy the court that the claim is not frivolous or vexatious  that there is a serious
question to be tried
 In Met Stores Beetz advanced several reasons why the American Cyanamid test rather than any more
stringent review of the merits is appropriate in Charter cases
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These included the difficulties in deciding complex factual and legal issues based on the
limited evidence available in an interlocutory proceeding, the impracticability of undertaking
a s.1 analysis at that stage, and the risk that a tentative determination on the merits would be
made in the absence of complete pleadings or prior to the notification of any Attorneys
General
In terms of the accepted exceptions to the application of the American Cyanamid test the court acknowledged
that two could apply (though rarely) in Charter litigation – where the result of the interlocutory proceedings
would effectively resolve the matter in dispute and where the question of constitutionality presented itself as a
“simple question of law alone.” However the court saw no room for a third exception
 There has been some suggestion of a third exception to the American Cyanamid test in the private law
context  however this does not apply in Charter cases, even if it does exist in private law cases at all
 A motions court should not attempt to undertake the careful analysis required for a
consideration of s.1 in an interlocutory proceeding
The court then went on to refine what the concept ot “irreparable harm” meant in the public law setting
 The assessment of irreparable harm in interlocutory applications involving Charter rights is a task
wchih will often be more difficult than a comparable assessment in a private law application. One
reason for this is that the notion of irreparable harm is closely tied to the remedy of damages, but
damages are not the primary remedy in Charter cases
 Monetary harm  in terms of the amount of money spent fighting a court challenge, will not
normally amount to irreparable harm
Court also built upon how the public interest should be dealt with in this kind of Charter litigation
 It is appropriate that both parties be able to rely on considerations of the public interest
 Either party may tip the scales of convenience in its favour by demonstrating to the court a
compelling public interest in the granting or refusal of the relief sought
 Public interest includes both the concerns of society generally and the particular interests of
identifiable groups
 We would therefore reject an approach which excludes consideration of any harm not directly
suffered by a party to the application
 When a private applicant alleges that the public interest is at risk that harm must be demonstrated
 This is since private applicants are normally presumed to be pursuing their own interests and
not the public’s interest at large
 In considering the balance of convenience and the public interest, it does not assist an
applicant to claim that a given government authority does not represent the public interest
 Rather the applicant must convince the court of the public interest benefits which will flow
from the granting of the relief sought
 In our view, the concept of inconvenience should be widely construed in Charter cases.
 In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is
less than that of a private applicant.
 This is partly a function of the nature of the public authority and partly a function of the
action sought to be enjoined.
 The test will nearly always be satisfied simply upon proof that the authority is charged with
the duty of promoting or protecting the public interest and upon some indication that the
impugned legislation, regulation, or activity was undertaken pursuant to that responsibility.
 Once these minimal requirements have been met, the court should in most cases assume that
irreparable harm to the public interest would result from the restraint of that action.
 A court should not, as a general rule, attempt to ascertain whether actual harm would result from the
restraint sought.
 To do so would in effect require judicial inquiry into whether the government is governing
well, since it implies the possibility that the government action does not have the effect of
promoting the public interest and that the restraint of the action would therefore not harm the
public interest.
 The Charter does not give the courts a licence to evaluate the effectiveness of government
action, but only to restrain it where it encroaches upon fundamental rights
 Consideration of the public interest may also be influenced by other factors
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Similarly, even in suspension cases, a court may be able to provide some relief if it can sufficiently
limit the scope of the applicant's request for relief so that the general public interest in the continued
application of the law is not affected
 One of the functions of the Charter is to provide individuals with a tool to challenge the existing order
of things or status quo. The issues have to be balanced in the manner described in these reasons.
The Court had also identified its more general sense of the competing interests in litigation of this kind
 On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation
enacted by elected officials of its effect
 On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental
rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that
it is struck down as unconstitutional might in some instances be to condone the most blatant violation
of Charter rights
New Directions: Liability of the Crown in Tort – Duty to Consult and Accommodate
Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511
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In 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Company Limited ("Weyerhaeuser"). The
Haida people challenged these replacements and the transfer, which were made without their consent and, since at
least 1994, over their objections. Nevertheless, T.F.L. 39 continued
In January of 2000, the Haida people launched a lawsuit objecting to the three replacement decisions and the transfer
of T.F.L. 39 to Weyerhaeuser and asking that they be set aside
This brings us to the issue before this Court. The government holds legal title to the land. Exercising that legal title, it
has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land. But the Haida people also claim title
to the land -- title which they are in the process of trying to prove -- and object to the harvesting of the forests on
Block 6 as proposed in T.F.L. 39.
In this situation, what duty if any does the government owe the Haida people?
o More concretely, is the government required to consult with them about decisions to harvest the forests and to
accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven
their title to land and their Aboriginal rights
The chambers judge found that the government has a moral, but not a legal, duty to negotiate with the Haida people
The British Columbia Court of Appeal reversed this decision, holding that both the government and Weyerhaeuser
have a duty to consult with and accommodate the Haida people with respect to harvesting timber from Block 6
I conclude that the government has a legal duty to consult with the Haida people about the harvest of timber from
Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an
obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be
required cannot at this time be ascertained. Consultation must be meaningful.
o There is no duty to reach agreement.
o The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser.
o Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people's
concerns, although the possibility remains that it could become liable for assumed obligations.
o It follows that I would dismiss the Crown's appeal and allow the appeal of Weyerhaeuser
It is argued that the Haida's proper remedy is to apply for an interlocutory injunction against the government and
Weyerhaeuser, and that therefore it is unnecessary to consider a duty to consult or accommodate
For an injunction the plaintiff must establish:
o (1) a serious issue to be tried;
o (2) that irreparable harm will be suffered if the injunction is not granted; and
o (3) that the balance of convenience favours the injunction
It is open to plaintiffs like the Haida to seek an interlocutory injunction. However, it does not follow that they are
confined to that remedy.
o If plaintiffs can prove a special obligation giving rise to a duty to consult or accommodate, they are free to
pursue these remedies.
o Here the Haida rely on the obligation flowing from the honour of the Crown toward Aboriginal peoples
Interlocutory injunctions may offer only partial imperfect relief.
o First, as mentioned, they may not capture the full obligation on the government alleged by the Haida.
o Second, they typically represent an all-or-nothing solution.
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Either the project goes ahead or it halts.
By contrast, the alleged duty to consult and accommodate by its very nature entails balancing of
Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of CrownAboriginal relations
o Third, the balance of convenience test tips the scales in favour of protecting jobs and government revenues,
with the result that Aboriginal interests tend to "lose" outright pending a final determination of the issue,
instead of being balanced appropriately against conflicting concerns
o Fourth, interlocutory injunctions are designed as a stop-gap remedy pending litigation of the underlying issue.
 Aboriginal claims litigation can be very complex and require years and even decades to resolve in the
courts.
 An interlocutory injunction over such a long period of time might work unnecessary prejudice and
may diminish incentives on the part of the successful party to compromise.
 While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of
reconciling state [page522] and Aboriginal interests.
 For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal
interests prior to their final determination.
I conclude that the remedy of interlocutory injunction does not preclude the Haida's claim
The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour
of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples
The honour of the Crown gives rise to different duties in different circumstances
Here, Aboriginal rights and title have been asserted but have not been defined or proven. The Aboriginal interest in
question is insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group's
best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title.
Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of
Aboriginal claims
This duty to consult is recognized and discussed in the jurisprudence
the content of the duty varied with the circumstances: from a minimum "duty to discuss important decisions" where
the "breach is less serious or relatively minor"; through the "significantly deeper than mere consultation" that is
required in "most cases"; to "full consent of [the] aboriginal nation" on very serious issues. These words apply as
much to unresolved claims as to intrusions on settled claims.
Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement
reflecting the claimants' inherent rights
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting
these interests are being seriously pursued in the process of treaty negotiation and proof.
o It must respect these potential, but yet unproven, interests.
o The Crown is not rendered impotent. It may continue to manage the resource in question pending claims
resolution.
o But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to
consult with and reasonably accommodate Aboriginal interests pending resolution of the claim.
o To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to
that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is
not honourable.
The government argues that it is under no duty to consult and accommodate prior to final determination of the scope
and content of the right. Prior to proof of the right, it is argued, there exists only a broad, common law "duty of
fairness", based on the general rule that an administrative decision that affects the "rights, privileges or interests of an
individual" triggers application of the duty of fairness
As for policy, the government points to practical difficulties in the enforcement of a duty to consult or accommodate
unproven claims.
o If the duty to consult varies with the circumstances from a "mere" duty to notify and listen at one end of the
spectrum to a requirement of Aboriginal consent at the other end, how, the government asks, are the parties to
agree which level is appropriate in the face of contested claims and rights?
o And if they cannot agree, how are courts or tribunals to determine this? The government also suggests that it
is impractical and unfair to require consultation before final claims determination because this amounts to
giving a remedy before issues of infringement and justification are decided.
The government's arguments do not withstand scrutiny.
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Neither the authorities nor practical considerations support the view that a duty to consult and, if appropriate,
accommodate arises only upon final determination of the scope and content of the right
The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair
dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims
resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights
guaranteed by s. 35(1) of the Constitution Act, 1982
I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible,
and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands
The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in
different situations will be defined as the case law in this emerging area develops. In general terms, however, it may
be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or
title claimed
In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation
appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural
justice mandated by administrative law.
At all stages, good faith on both sides is required
Mere hard bargaining, however, will not offend an Aboriginal people's right to be consulted
At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for
infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and
discuss any issues raised in response to the notice
At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and
potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is
high.
o In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While
precise requirements will vary with the circumstances, the consultation required at this stage may entail the
opportunity to make submissions for consideration, formal participation in the decision-making process, and
provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they
had on the decision
Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached
individually. Each must also be approached flexibly, since the level of consultation required may change as the
process goes on and new information comes to light
Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained
through consultations
When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus
the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists
for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant
way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects
of infringement, pending final resolution of the underlying claim
This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.
The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no
means in every case. Rather, what is required is a process of balancing interests, of give and take
The accommodation that may result from pre-proof consultation is just this -- seeking compromise in an attempt to
harmonize conflicting interests and move further down the path of reconciliation.
o A commitment to the process does not require a duty to agree.
o But it does require good faith efforts to understand each other's concerns and move to address them
The Court of Appeal found that Weyerhaeuser, the forestry contractor holding T.F.L. 39, owed the Haida people a
duty to consult and accommodate. With respect, I cannot agree
It is suggested that a third party's obligation to consult Aboriginal peoples may arise from the ability of the third party
to rely on justification as a defence against infringement.
o However, the duty to consult and accommodate, as discussed above, flows from the Crown's assumption of
sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support
for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for
the consequences of its actions and interactions with third parties, that affect Aboriginal interests.
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The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular
development; this is not infrequently done in environmental assessments.
o However, the ultimate legal responsibility for consultation and accommodation rests with the Crown.
 The honour of the Crown cannot be delegated.
It is also suggested that third parties might have a duty to consult and accommodate on the basis of the trust law
doctrine of "knowing receipt".
o However, as discussed above, while the Crown's fiduciary obligations and its duty to consult and
accommodate share roots in the principle that the Crown's honour is engaged in its relationship with
Aboriginal peoples, the duty to consult is distinct from the fiduciary duty that is owed in relation to particular
cognizable Aboriginal interests.
The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they
can never be liable to Aboriginal peoples.
o If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach
contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable.
o But they cannot be held liable for failing to discharge the Crown's duty to consult and accommodate
The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated
the Union. It follows that the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives
it of powers it would otherwise have enjoyed
Where the government's conduct is challenged on the basis of allegations that it failed to discharge its duty to consult
and accommodate pending claims resolution, the matter may go to the courts for review
o The question of what standard of review the court should apply in judging the adequacy of the government's
efforts cannot be answered in the absence of such a process. General principles of administrative law,
however, suggest the following.
 On questions of law, a decision-maker must generally be correct
 On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of
deference to the decision-maker.
 The existence or extent of the duty to consult or accommodate is a legal question in the sense
that it defines a legal duty.
 However, it is typically premised on an assessment of the facts. It follows that a degree of
deference to the findings of fact of the initial adjudicator may be appropriate.
 The need for deference and its degree will depend on the nature of the question the tribunal
was addressing and the extent to which the facts were within the expertise of the tribunal
 Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the
reviewing court, and some degree of deference may be required. In such a case, the standard of
review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be
isolated from the issues of fact, the standard is correctness.
 However, where the two are inextricably entwined, the standard will likely be reasonableness
 The process itself would likely fall to be examined on a standard of reasonableness
 Perfect satisfaction is not required; the question is whether the regulatory scheme or
government action "viewed as a whole, accommodates the collective aboriginal right in
question
The question is whether the Province had knowledge, real or constructive, of the potential existence of Aboriginal
right or title and contemplated conduct that might adversely affect them. On the evidence before the Court in this
matter, the answer must unequivocally be "yes".
The Haida have claimed title to all of Haida Gwaii for at least 100 years
the Province has had available evidence of the Haida's exclusive use and occupation of some areas of Block 6 "[s]ince
1994, and probably much earlier".
the scope of the consultation required will be proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or
title claimed
The chambers judge's findings grounded the Court of Appeal's conclusion that the Haida claims to title and Aboriginal
rights were "supported by a good prima facie case" (para. 49). The strength of the case goes to the extent of the duty
that the Province was required to fulfill. In this case the evidence clearly supports a conclusion that, pending a final
resolution, there was a prima facie case in support of Aboriginal title, and a strong prima facie case for the Aboriginal
right to harvest red cedar.
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The prospect of continued logging of a resource in limited supply points to the potential impact on an Aboriginal right
of the decision to replace T.F.L. 39
Where the government has knowledge of an asserted Aboriginal right or title, it must consult the Aboriginal peoples
on how exploitation of the land should proceed
I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision
reflects the strategic planning for utilization of the resource. Decisions made during strategic planning may have
potentially serious impacts on Aboriginal right and title.
If consultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences.
the strength of the case for both the Haida title and the Haida right to harvest red cedar, coupled with the serious
impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may well require
significant accommodation to preserve the Haida interest pending resolution of their claims
The Province did not consult with the Haida on the replacement of T.F.L. 39
the Province points to various measures and policies taken to address Aboriginal interests
o these measures and policies do not amount to and cannot substitute for consultation with respect to the
decision to replace T.F.L. 39 and the setting of the licence's terms and conditions
o It follows, therefore, that the Province failed to meet its duty to engage in something significantly deeper than
mere consultation. It failed to engage in any meaningful consultation at all
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