Winter Administrative Law
Christopher Scott
Outline for LAW 301 A01, as taught by Professor M. Cheryl Crane
“Administrative law is not for sissies”
Scalia J, USSC
University
of
Victoria
Faculty
of
Law
2011
Administrative Law Table of Contents
BACKGROUND
1
POLICY
1
PROCEDURAL REVIEW
2
Policy and Background
2
Threshold Issues
2
Statutory Authorization and Rights Documents
The Canadian Bill of Rights
The Canadian Charter of Rights and Freedoms
4
4
4
Content Issues
Specific Content Issues: Pre-Hearing
Specific Content Issues: At the Hearing
Specific Content Issues: Post-Hearing
5
6
7
9
Remedies for Judicial Review
9
Bias
10
Lack of Independence
13
SUBSTANTIVE REVIEW
14
The Dunsmuir Approach
14
Pre-Dunsmuir Precedents
Privative Clauses
Statutory Appeals
The Pragmatic and Functional Approach
Critiques
16
16
16
16
17
Abuse of Discretion as a Ground for Judicial Review
18
INDEX OF CASES
19
i
Administrative Law Background
•
•
•
Evocation
in Quebec
Mechanisms for controlling administrative actions by tribunals:
o Appeals: Ordinarily not available with tribunals; only possible if provided for by statute.
o Judicial Review: Prov. superior courts have inherent supervisory jurisd. over inferior tribunals
§ It’s unconstitutional for provs. to remove courts’ power to review on "questions of
jurisdiction", under CA 1867 s. 96. (This also applies federally – Macmillan Bleodel) (Crevier)
o “Original Jurisdiction”: Ordinary court actions (e.g. torts, Charter breaches) are also available
Primary Grounds For Judicial Review:
o Procedural Impropriety: Statutory powers exercised in an improper manner:
§ Breach of procedural fairness obligations
§ Improperly constituted or
§ Breach of the "rule against bias"
authorized decision-maker
§ Lack of the requisite degree of "independence"
o "Substantive" Illegality and Irrationality: Review of the "merits" of the decision:
§ Errors of law: Errors in interpreting the scope or meaning of statutory powers
§ Reviewable errors of fact: Deciding without a sufficient evidentiary basis
§ Abuse of discretionary powers
o Unconstitutional Exercises of Power: Breaches the division of powers or Charter rights.
Remedies:
o [Historical] Common Law Remedies: Discretionary writs, granted by superior courts:
§ Certiorari: An order that quashes or sets aside a decision
§ Prohibition: An order that prohibits a tribunal from proceeding
§ Mandamus: An order that requires the performance of a mandatory public duty
o [Modern] Statutory Remedies: No more writs; we now use “applications for judicial review”
which request “relief the nature of” one or more of the above.
§ BC: The Judicial Review Procedure Act imposes the new “application” system.
§ Federally: Federal Courts Act grants limited jurisdiction; only applies to federal tribunals.
Policy
•
Conflicting Theories of Administrative law: Rule of Law approach and Functionalism
o Rule of Law (or “Dicyean”) approach: Distrustful of government, aims at limiting govt’ power
§ This is one of the four underlying principles of the Canadian Constitution
(Secession Ref.)
Ø It’s inherited from the British constitution; stated explicitly in the Charter’s Preamble
§ A.V. Dicey (1885) laid out the three traditional principles of the Rule of Law:
Ø Government must act only with [limited, clearly defined] lawful authority
Ø Government and citizens alike are subject to the general law of the land
Ø Government is subject to the ordinary law administered by the ordinary courts
§ The Rule of Law embraces 3 modern principles:
(Imperial Tobacco)
Ø Law is supreme over government and individuals (no arbitrary power)
(Manitoba Ref.)
Ø There must be an actual order of positive laws
(Manitoba Ref.)
Ø The relationship between individual and state must be regulated by law
(Secession Ref.)
§ Rule of Law can only overrule the executive/judicial, not legislative branch. (Imperial Tobacco)
o Functionalism: Courts should not oppose the effective functioning of modern regulatory states.
§ Purposes of such a state include regulating private power and redistributing wealth.
§ Critiques: The Rule of Law supports the status quo and prevents progress in three ways:
Ø Courts zealously defend property rights (laissez-faire values) and inhibit redistribution.
Ø Imposing the adversarial model on tribunals lowers efficiency and favours the wealthy.
Ø Courts often fail to consider policy, engage in statutory interpretation without context.
1
Administrative Law Procedural Review
Policy and Background
•
•
Sources of Procedural Entitlements:
o Statutes (and Regulations), including specific enabling Acts and general procedural statutes
§ e.g. Administrative Tribunals Act; note that it only applies where the enabling statute
imports it.
o Rights Documents: Constitutional and "quasi-constitutional" documents
§ Canadian Bill of Rights (federal only; limited)
§ Canadian Charter of Rights and Freedoms (esp. s. 7 & the PFJs)
§ Quebec Charter (similar to Canadian Charter)
o Common Law of procedural fairness, which uses the following inquiry:
§ Threshold: When are there any procedural rights?
§ Statutory Authorization: Does the statute modify or abrogate the duty?
§ Content: What procedures are required? (use Baker factors)
§ Compliance: Has that duty been complied with? (this is a question of fact)
Values/purposes/norms/ideologies that are served by providing participatory rights:
o Democratic ideals (involving citizens in decision-making)
o Individual autonomy (individualism or "dignitarian" ideals – natural rights)
o Better decisions are made (more information yields better decisions)
o Legitimacy – Promotes civic order (people feel they've been heard)
o Accountability of the state for exercises of power
(Knight)
(Knight)
(Knight)
(Knight)
(Knight)
Threshold Issues
•
Formerly, proceedings had to be judicial or quasi-judicial to pass the threshold test.
(Cooper)
o This requirement has been abolished; courts are now concerned with the duty of fairness (Nicholson)
• General Framework for answering the threshold question: Consider the following factors:
(Knight)
o The nature of the decision to be made by the administrative body
(Knight)
§ Factors for granting a duty of fairness:
Ø Administrative and specific decisions (vs. legislative and general – below)
(Knight)
Ø Final decisions (esp. without appeals).
(Knight)
Ø Judicial or quasi-judicial decision-making (how much does it look like court?)
(Cooper)
§ Factors against granting a duty of fairness:
Ø Legislative and general decisions (vs. administrative and specific). Factors:
(Knight)
v Unfettered discretion granted by statute, esp. if Prlmt used to perform that function(Inuit)
v Tribunal makes policy-laden decisions, based on broad considerations of current
political, economic and social concerns. (e.g. rate-setting commissions, like CRTC) (Inuit)
o Example: Political decision re: egg quotas. No duty.
(Regulated Importers)
(Inuit)
Ask: How practical is v Nature of the decision-maker (e.g. Cabinet is usually legislative and general)
it to grant hearings? Is
o This factor is not determinative. Cabinet is not immune from the duty of fairness(Inuit)
it a political body? Etc.
o Example: Cabinet making individual licensing decisions. Duty arises. (Winneke (Aus))
v Substance: Was the action individualized or general?
(Homex)
o Example: A bylaw affecting one party (even if in public interest) is not general,
even though bylaws are typically legislative.
(Homex)
o Example: Rate-setting is generalized, not individualized
(Inuit)
2
Administrative Law Ø Preliminary decisions generally do not attract a duty of procedural fairness, but… (Knight)
v Court will consider factors to determine whether PF is still appropriate:
(Re Abel)
o Proximity between preliminary and final decision; does prelim. determine final?
§ If recommendations are made, proximity is high
(Irvine)
o Possible exposure of the person investigated at prelim. stage to harm.
§ If it’s public and reputations are at stake, exposure is high. Otherwise, no (Irvine)
v Example: Preliminary psych review is “vital” in making final decision re:
institutionalization. PF applies; ∆ has a right to see [some of] his psych file.
(Re Abel)
o The relationship existing between that body and the individual
(Knight)
§ This includes policy reasons for applying a duty of procedural fairness (or not)
(Knight)
§ This includes reference to the grounds for the tribunal’s action and the general context (Knight)
These are treated the
Ø e.g. The context of collective agreements/etc is seen to make the idea of "office-holders
same as employees
at pleasure" being dismissible without reasons or cause anachronistic. Suggests duty. (Knight)
now (Dunsmuir)
o The effect of that decision on the individual’s rights, privileges or interests
(Knight)
§ This must be “significant and important” (e.g. termination of employment)
(Knight)
§ Decisions affecting property rights have a long history of scrutiny by the courts
(Cooper)
Ø Dickson CJ: Whenever personal or property rights are targeted “directly, adversely
and specifically”, procedural fairness is required to some degree.
(Homex)
§ Licensing Decisions: These break down into three categoies:
(McInnis)
Ø Forfeiture: Existing right is lost for a reason relating to the individual; PF applies (McInnis)
v Example: Mom on welfare loses subsidized housing due to noisy kids.
(Webb)
v The longer the right has been held, the stronger the entitlement to PF
(Winneke)
Ø Pure application: Only an application has been made, no expectation/slur; no PF (McInnis)
v Example: Denial of a license application to be a boxing manager. This is
discretionary; lots of factors, nothing in scheme suggests denial = bad character (McInnis)
Ø Expectation: There’s a reasonable expectation for a favourable decision. PF applies
v There are two meanings attached to “Legitimate Expectations”; PF applies to both:(Baker)
o Substantive: Reasonable expectation of a certain outcome.
§ E.g. Applying for renewal of a licence for which you still qualify – high PF
o Procedural: Expectation of certain procedures due to promises or past practices
§ Individual needs to know about the old practice to claim an expecation
(Baker)
§ There is no need for detrimental reliance on the expectation
(Baker)
§ The past practice must be “clear, unambiguous and unqualified”
(CUPE)
v Can’t use doctrine in a way that affects Parliament’s ability legislate effectively (CAP Ref)
v Can’t use doctrine to demand substantive outcomes, only procedural safeguards (CAP Ref)
o Trick: A promise of an outcome can be seen as an exercise of that discretion; the
court can then grant mandamus and require the tribunal to follow through (Mt Sinai)
Ø Slur: Negative decision will reflect negatively on the rep. of the applicant. PF applies
Remember, this is just the v Example: Denying Dr. hospital rights would cast a slur on reputation
(Hutfield)
threshold issue – applicants
(Lazarov)
are either getting to be v Example: Denial of citizenship app. for undisclosed security reasons
heard or are getting reasons v Example: Refusal to renew an annual fishing licence for past misconduct
(Everett)
for their denial.
v Example: Revocation of a pardon
(Desjardins)
3
Administrative Law Statutory Authorization and Rights Documents
•
•
Defence of Statutory Authorization: The duty of fairness can be modified or abrogated by a
statute, but only by express language or "necessary implication"
(Knight, Brosseau)
o A statute may be interpreted as providing an “exhaustive scheme”, in which case any absences
of PR guarantees will be interpreted as intentional. This forces you to go to rights documents. (Singh)
Your Only Recourse: If a statute says you can’t get your PF, find a better (ie constitutional) statute
The Canadian Bill of Rights
• Jurisdiction: Only applies federally (i.e. federal tribunals under federal statutes)
• Quasi-Constitutional Status: This is just an ordinary statute, but it has primacy over other statutes
(unless they claim to operate notwithstanding the CBR, which is rare)
(CBR s. 2)
• Rights: Mostly similar to the Charter, but take note of these two:
o The right to “enjoyment of property”; no deprivation “except by due process of law” (CBR s. 1(a))
§ This only applies to individuals (i.e. actual human beings)
(CBR s. 1(a))
§ This only applies to rights existing at the time of the CBR’s enactment (1960)
(Authorson)
§ Courts are reluctant to interpret “due process” substantively; it grants PF, not outcomes(Authorson)
§ Example: π gets veteran’s pension through Dept. of Vet. Affairs. DVA didn’t invest or pay
interest on those funds; federal statute bars vets from suing for interest. π argues due process
protects him from expropriations without compensation. Court denies – there was no such
right in the 1960s, and due process won’t be applied substantively to infer one.
(Authorson)
o No law may 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
(CBR s. 2(e))
§ Fundamental Justice: Look at the context to determine what this means. Factors:
(Singh)
Ø Nature of the right in issue
Ø Severity of the possible consequences
Ø Whether findings of fact must be made (esp. assessments of credibility – Singh)
§ Example: Human Rights Commission is challenged on the ground that it is not sufficiently
independent, and so is unfair. HRC was investigating π for employment discrimination, and
conforms to statute’s independence requirements. Challenge succeeds – this is a
determination of π’s obligation not to discriminate, so CBR applies.
(McBain)
§ Example: Authorson, above. Not a determination of rights.
(Authorson)
Consequences:
§ Example: Tribunal denies π refugee rights. No oral hearing, reviews transcript from prelim.
Persecution in
home country
interview. This is a determination of rights, so CBR applies. High seriousness, severe
possible consequences, and decision based on findings of fact. Oral hearing required.
(Singh)
Ø Note: This was a finding by 3 of 6 judges (lead by Beetz J); the others used the Charter.
This is the only
one we covered
The Canadian Charter of Rights and Freedoms
• Constitutional Status and Jurisdiction: This applies everywhere. “The Constitution is the
supreme law; any laws inconsistent with it are of no force and effect.”
(CA 1982 s. 52)
• Rights: “Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
(Charter s. 7)
o Everyone: means everyone in Canada, not just citizens.
(Singh)
o Liberty: This means freedom from confinement, not freedom to do whatever you want.
(Singh)
§ Also means personal autonomy to make fundamental life choices without state interfering(Blencoe)
These are examples
Ø Example: “Liberty” means ability to make decisions re: child care
(B. v. Children’s Aid)
given in Blencoe,
we didn’t read them
Ø Example: Requiring city counsellors to live in city limits violates s. 7 (Godbaut v. Longieu)
4
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•
•
•
•
Administrative Law o Security of the Person: covers bodily integrity and state actions that impose "serious
psychological stress".
(NB Minister of Health)
§ Objective Test: Would a reasonable person experience much more than ordinary stress and
anxiety (not necessarily to the level of nervous shock or illness).
(NB Minister of Health)
§ Must be serious in kind and degree. Merely being subject to proceedings is not sufficient(Blencoe)
o Principles of Fundamental Justice:
§ Being in accordance with the PFJs has two meanings:
(Singh)
Ø Procedurally: Are the procedures provided in accordance with the PFJs?
(Singh)
v PFJs are roughly the same as the common law duty of procedural fairness
(Singh)
v The PFJs guarantee a fair process w.r.t. the context and possible consequences(Charkaoui)
Ø Substantively: Is the deprivation itself (i.e. the outcome) consistent with the PFJs?
(Singh)
§ Generally: Consider the following factors when determining whether PF was met: (Charkaoui)
Ø Nature of the proceedings
(Charkaoui)
Ø The seriousness of the interest at stake (this is the “overriding interest”)
(Charkaoui)
§ The PFJs may require the right to counsel, depending on the following factors: (NB Minister…)
Ø Seriousness of the interest at stake (e.g. child custody is very serious)
Ø Complexity of the proceedings (e.g. 15 days of hearings is very complex)
Ø Capacity of the party to self-represent (e.g. parents in child custody cases; low capacity)
§ The PFJs include the procedural right to hear the case against you.
(Charkaoui)
§ The PFJs seek to reduce the risk of judicial error.
(Charkaoui, NB Minister)
Analysis: Challenges under s. 7 have a three-step analysis:
(Singh)
o Has the state deprived or threatened to deprive the claimant of an enumerated right? If so… (Singh)
o Was that deprivation in accordance with the principles of fundamental justice? If not…
(Singh)
§ Balancing societal interests happens under s. 1, not here
(Charkaoui)
o Is the breach saved by Charter s. 1? Apply the Oakes test here.
(Singh, Oakes)
§ Where “gross harms” are found under the PFJ analysis, s. 1 gets pretty short shrift (NB Minister)
§ This also fails to be saved where a scheme is not “minimally impairing”
(Oakes, Charkaoui)
Example: Tribunal denies π refugee rights. No oral hearing, no provision of reasons. Section 7
infringed. PFJs not met procedurally or substantively, s. 1 fails. Sent back for oral hearing.
(Singh)
Example: Ministers can sign a security certificate against a non-citizen resulting in indefinite
detention or deportation. Before signing, court conduct “reasonableness review”, but π can’t be
there when national security information is discussed. Right to liberty engaged. PFJs not met
because (1) π doesn’t know the case against him and (2) the judge doesn’t get to hear both sides.
Section 1 fails; not minimally-impairing, could just have lawyers with clearance.
(Charkaoui)
Example: π accused of sexual harassment. Takes 32 months to start hearing, hearing itself is 2
years. No Charter interest engaged (not stressful enough for security of the person).
(Blencoe)
Example: Mom on welfare has kids taken by Minister, fighting for custody but can’t get legal aid.
Security of the person engaged (serious psych. stress), PFJs not met (serious interest, complec
hearings, low capacity), s. 1 fails (gross harms). State ordered to fund her counsel(NB Minister of Health)
Content Issues
•
•
Historically, the court was concerned with natural justice. This has two limbs:
o Hearing Rights: The rights to be heard and to hear the case against you (audi alteram partem)
o Rule against Bias: Right to an impartial trial (nemo judex in sua causa)
General Framework for assessing the content of the duty of fairness:
(Baker)
o Nature of the decision and the process followed (discretionary/policy vs. judicial/legal)
(Baker)
§ Discretionary decisions requiring multiple factors have low PF
(Baker)
o Nature of the statutory scheme and the terms of the statute empowering the tribunal
(Baker)
§ If there is no appeal, then that's a factor towards needing procedural fairness.
(Baker)
5
Administrative Law § Provisions that operate as exceptions to the normal scheme require less procedural fairness(Baker)
o Importance of the decision to the individual affected (“impact”). Most important factor!
(Baker)
§ Example: π is Jamaican, has 4 kids in Canada, applying for exemption from deportation.
All other factors were against her, but serious impact granted [written] hearing rights.
(Baker)
o Legitimate expectations of the person affected
(Baker)
§ Recall: Can’t be used to get a substantive result, but can get promised procedures.
(CAP Ref)
o Process actually adopted and institutional constraints.
(Baker)
§ Must “give important weight to” the choice of procedures made by the agency itself.
(Baker)
§ What will the administrative impact of imposing stronger procedures be?
(Baker)
§ This factor is not determinative.
(Baker)
Specific Content Issues: Pre-Hearing
• Notice:
o Form: The best form of notice is probably written, although this factor isn’t very important.
§ Prof: As long as the form provides notice and isn’t prejudicial the court won’t care.
o Manner of Service: Best manner of service is personal service with affidavits.
§ Mass Notice (e.g. advertising) may be acceptable if large groups need to be notified, so
long as the intended people are likely to be notified.
(Ontario Hydro)
Ø Example: Unreasonable to require every individual notice to every resident in a
school’s area of an intention to close the school. Must make it “generally known” in the
area such that it will come to the attention of interested individuals.
(Re Hardy)
o Timing: Needs to be received by the party long enough in advance to give the party a chance to
determine whether to participate (if not mandatory), and to actually prepare to participate.
§ More complex or serious issues will require more time to prepare.
§ Example: Notice to π arrived late; limitation period passed while response was still in the
mail. Treated as if no notice given – adjournment granted, still able to pursue action. (Torchinsky)
§ Example: Notice to π arrived late; π files appeal anyways, court uses general remedial
discretion to permit the appeal to proceed (i.e. it recognized the notice as adequate but
permitted the action to proceed anyways)
(Re Rymal)
o Content: Needs to say when and where the person may be heard, and include some information
on the case to be met. Court will consider all the circumstances, including the position of the
party to be notified (Chester) and the nature of the process in question (Krever)
§ Example: Prisoner being reviewed for violent behaviour, may be moved to another prison.
Receives notice mentioning one incident; prisoner prepares submissions on that issue, but at
the hearing is presented with several incidents. Court overturns due to ambiguous notice (Chester)
§ Example: Vet gives π’s horse prohibited drug. π races horse, stewards ban that horse
pending a review by Ont. Racing Commission. ORC gives notice, π gets license suspended
(more serious penalty). Notice didn’t mention this penalty, but court says that π should have
known it was possible – π was an experienced racer.
(Ex Parte Taylor)
§ Example: OH moving high-power lines, considering alternate routes, puts up mass notice
ads in alternate route areas to notify residents. Ads only say “Southwestern Ontario”, don’t
notify residents that they specifically are in alternate route areas. Ambiguous.
(Ontario Hydro)
§ Example: Commission hearing evidence re: HIV in blood supply. At the end, invites parties
to confidentially advise re: misconduct by other parties. Confidentially provides those
parties with notice, gives them a chance to response, then issues public findings of
misconduct. This process was mentioned early on, and all parties had counsel. Public
findings do not claim to establish criminal guilt or civil liability. Notice before hearings
began wasn’t possible, as it depended on conduct during hearings. As a result, court finds
that the notice given was sufficient, with regard to the nature of the process in question (Krever)
6
•
•
•
Administrative Law Discovery of the Case Against:
o Jursdiction: Administrative boards might not have the power to order discovery unless it is
found in the statute; discovery is more than merely an “incidental” power
(CALPA)
o The Stinchcombe rationale for discovery in the criminal context: Discovery prevents "trial by
ambush", makes hearings more expeditious, and promotes settlements.
(Stinchcombe)
§ In criminal law: Non-disclosure reduces ∆’s ability to make full answer and defence
§ The "fruits of the investigation" belong to the public, not the Agency; all parties get access.
o The Stinchcombe rationale applies in administrative law, but the content varies according to
how similar the case is to criminal law.
(NW General Hospital, Ciba Geigy)
§ Example: Statutory scheme permits Human Rights Commission to disclose “reasonable
information on any allegations” and to adduce witnesses (this gives jurisdiction). Court
requires them to give all statements by the complainant to ∆ via either method. Similarity
to criminal context is obvious, so disclosure should be complete.
(NW General Hospital)
Ø HRC says this will have a chilling effect on complaints, but court says that some caution
in making such serious allegations is appropriate.
§ Example: ∆ accused of overcharging for medicine. ∆ demands production of all of the
tribunal’s documents. Court denies; this is economic regulation, not a criminal court.
Tribunal only has obligation to provide all documents that will be relied on hearings (Ciba Geigy)
Delay in Proceeding: Can warrant a stay of proceedings if there is "significant prejudice"
(Blencoe)
o Two kinds of significant prejudice:
(Blencoe)
§ Actual prejudice to a fair hearing in an evidentiary case.
(Blencoe)
Ø This is long-recognized; loss of evidence, inadequate opportunity to present one's case.
§ Delay amounting to abuse of process:
(Blencoe)
Ø Even where the fairness of the hearing has not been compromised, there may be an
abuse of process where the delay meets all of the following criteria:
(Blencoe)
v It is inordinate or unreasonable. Factors to consider:
(Blencoe)
o Nature of the case, including the various rights at stake
(Blencoe)
o The level of complexity of the facts and issues
(Blencoe)
o The purpose and nature of the proceedings
(Blencoe)
o Whether the applicant contributed to the delay or waived it
(Blencoe)
v It causes serious stress (psychological harm) and stigma to reputation.
(Blencoe)
v It brings the human rights system into disrepute
(Blencoe)
o Bastarache J: This is a high bar; successful cases will be rare
(Blencoe)
Ø Example: π accused of sexual harassment, complaint goes to HRC. Takes 32 months to
get to hearing, hearing takes 2 years. Some delay is π’s fault, length of hearing doesn’t
count as delay, so only 16 months are in issue. Not an unreasonable delay – in fact, it’s
partly due to the high PF involved in this type of proceeding, so it’s not an issue
(Blencoe)
Standing and Intervention: Courts often treat tribunals’ recognition of parties’ standing as
conclusive (i.e. it’s hard to get judicial review on a standing dispute)
Specific Content Issues: At the Hearing
• Oral Hearings:
o Recall: Oral hearings are not necessarily required by PF.
(Baker, Knight, Webb, Nicholson)
o Where credibility is in issue and the impact is serious, an oral hearing should be held. (Khan, Singh)
§ Recall that Singh is based on the PFJs, which don’t require oral hearings in every case
(Singh)
o Example: Student claims there was an extra exam booklet; school denies it, fails her. This
could delay her professional life and credibility is in issue, so oral hearing required.
(Khan)
o Example: Mom on welfare loses subsidized housing; non-oral hearing rights granted.
(Webb)
7
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•
•
•
•
•
Administrative Law Public Hearings: Open hearings are preferred, even for disciplinary hearings.
o In camera hearings might be appropriate for where safety, national security, dignity (esp. with
sexual assault complainants), police informants or commercially sensitive matters are involved.
Right to Counsel: May be a right to state-funded counsel (NB) or just to be represented (Howard).
o Factors to consider:
(NB Minister…)
§ Seriousness of the interest at stake
(NB Minister…)
§ Complexity of the proceedings
(NB Minister…)
§ Capacity of the party to self-represent
(NB Minister…)
§ Are there contrary factors, such as a need for speed or informality?
(NB Minister…)
o Example: Welfare mom in child-custody case; 15 days of hearings. Counsel granted (NB Minister…)
o Example: Prisoner presented with vague charges (incl. 3 charges for one act), may extend jail
time. Liberty interest at stake, fairly complex, limited capacity. Counsel granted.
(Howard)
Disclosure of the Case Against and Access to Agency Information:
o Parties have a right to hear and respond to the evidence against them at the hearing.
(Kane)
o This right is not absolute; disclosure may be denied where there are confidentiality concerns,
or where it might harm the party requesting it (e.g. certain doctor's reports)
(Napoli)
§ Confidentiality Concerns: Will disclosure cause a “chilling effect”?
§ Harm to Requesting Party: This is a paternalistic concern that is of reduced weight today
o PFJs may require disclosure that is adequate to allow the party to respond, dep. on context. (Napoli)
§ Example: Disability claim for worker’s comp. π requests medical records, gets only a
summary without names or quotes. PFJs override conf/harm concerns, disclosure ordered (Napoli)
o Example: Prof is suspended, has a hearding before Board. After Prof leaves, President adds
facts and answers questions. Inadequate disclosure; Prof had right to hear and respond.
(Kane)
o Example: National security certificates hearing. CSIS adds evidence (interview summaries)
while in camera (π not present). Baker factors suggest high PF – very severe impact, judicial
context, etc. Files must be disclosed (and CSIS has to stop destroying them!), but need to be
censored by judge to remove sensitive national security info.
(Charkaoui 2)
Admissibility of Evidence: Tribunals are not bound by the law of evidence (unless statute says so)
o BC ATA: Permits any evidence that the tribunals considers “relevant, necessary and
appropriate”, whether or not a court would admit it. Recall: ATA not always applicable. (ATA s. 40)
§ Exception: Legal privileges are preserved if s. 40(3) is applicable.
o However, PF may require that certain evidence be inadmissible (as a procedural safeguard)
Cross-Examination: A right to cross-examine in oral hearings is axiomatic, but it may be denied.
o Adversarial (or otherwise court-like) tribunals are likely to require cross-examination.
(Innisfil)
§ Innisfil was heavily statutory, so mention that as a caveat along with this principle!
(Innisfil)
§ If a statute makes reference to a right to cross-exam or a right to oppose (even if limited),
courts are happy to apply the right to cross-examine more broadly on the basis of PF.
(Innisfil)
o BC ATA: Grants cross-exam. rights where “reasonably required” for full/fair disclosure (ATA s. 38)
o Example: Estimated population projection adduced by witness. No cross-exam given. Statute
grants cross-exam. rights and the right to “object”. Court: Breached PF not to grant cross-exam
here; objecting parties should be given a chance to examine that witness.
(Innisfil)
o Example: Regulatory commission hears expert report from side A, but expert isn’t available for
cross-exam. Commission lets in an expert report from side B in response. No cross-exam
necessary; low PF required, both sides having independent experts is a good substitute.
(MacLab)
The Limits of Trial-Type Hearings: Adversarial processes are good for historial fact-finding,
but not so great for policy-balancing. Sometimes, administrative processes really are better.
8
Administrative Law Specific Content Issues: Post-Hearing
• The Duty to Give Reasons: This is a developing area, but the trend has been to require reasons
o Policy reasons for giving reasons:
§ You’ll end up with better decisions if you have to craft reasons for them
(Baker)
§ It enhances accountability
(Baker)
§ Instrumental value – reasons are invaluable when there is an appeal.
(Baker)
§ Legitimacy and acceptability – parties feel like they’ve been treated fairly, non-arbitrarily(Baker)
Ø Show parties they’ve been heard (their arguments should be mentioned in the reasons) (Via)
§ Provide guidance to the parties and others with respect to what the law is.
(Via)
§ Allow the indivual the ability to understand why the decision was made.
(Lake Case)
o When giving reasons is required by PF:
(Baker)
§ In cases where the decision is very significant for an individual
(Baker)
§ Where there’s a statutory right of appeal (so courts can assess for error)
(Baker)
§ “Other circumstances” – L’Heureux-Dubé J left the circumstances open-ended
(Baker)
o Reasons don’t need to be comprehensive, but do need to discuss the most relevant and
important factors
o Example: Baker facts; high impact means reasons required. Satisified by officer’s notes
(Baker)
o Example: Attendants to disabled people can travel free on Via Rail, but had to be able to help
board/deboard the train. Tribunal finds this is an “undue obstacle”, but reasons provided no
indication of what an undue obstacle is. Court says these don’t satisfy the purposes of reasons. (Via)
o Usual Remedy: The decision is usually quashed and sent back. Typically, this means that the
decision-maker issues reasons for coming to their conclusion, but it can require a new hearing.
Remedies for Judicial Review
•
•
Futility: The court will not speculate regarding the outcome. Saying that “the breach of PF
doesn’t matter because the outcome wouldn’t have changed” will not be accepted.
(Innisfil, Cardinal)
o Procedural fairness is required by natural justice; it’s a freestanding right.
(Lakeside Hutterites)
o Exception: If there is only one possible outcome as a matter of law, then a remedy may be
denied due to legal futility. This is a high bar to meet.
(Mobil Oil)
Discretionary Aspects of Remedies: There are six grounds on which a court can refuse to grant a
remedy on a discretionary basis (notwithstanding a remedy otherwise being deserved):
o Mootness: If the issue has otherwise been resolved, there is no remedy to grant.
§ Example: Claiming right to counsel for an action that has ended.
(NB Minister of Health)
o Delay: At common law, applications for judicial review that are delayed unreasonably and
prejudicially to other parties may be denied. Some jurisdictions also have statutory time limits:
§ Federally: Time limit of 30 days, extendable at court’s discretion (Federal Courts Act s. 18.1(2))
§ BC ATA: Time limit of 60 days, extendable at court’s discretion
(ATA s. 57)
§ BC generally: There is no time limit on an application for judicial review, unless another
statute has a time limit that applies (still subject to the common law prejudice rule) (JRPA s. 11)
o Misconduct: This is sort of a version of the "clean hands" equitable doctrine. It’s pretty rare.
§ Example: Homex wins in law, but their disingenuous practices (splitting land up to avoid
bylaws) resulted in a remedy being denied due to misconduct.
(Homex)
o Waiver: A party may waive the right to procedural fairness. This is also rare (esp. non-express)
§ A waiver must be clear. The party must be aware of the consequences and indicate consent.
§ If a party is represented by counsel and a right to object was clear, then a failure to object
might be found to be an implied waiver, due to conduct. Otherwise, silence is not waiver.
o Prematurity [of application]: Courts engage in judicial review as a last resort. They prefer to
let tribunals fix their own errors, and won’t grant review until the tribunal has actually decided.
9
Administrative Law o Adequate Alternate Remedy: If an adequate appeal is available, exhaust that first.
§ If a right of appeal to the courts on questions of law is provided by statute, it must be
exhausted before judicial review can be granted
Ø Lack of PF is an error of law, so appeals cover that ground (plus a lot more!)
Ø Federally, it is a statutory requirement to exhaust appeals first (Federal Courts Act s. 18.5)
§ If there is a right of internal appeal (i.e. to another tribunal or another body inside the
decision-maker), that may be an adequate alternative. Consider these factors:
(Harlekin)
Ø Is this a de novo appeal, or is it on the record [provided by the body below]?
v Prof: If the record is defective, then an appeal on the record is likely not adequate.
Ø How does the appeal body operate?
Ø What is the relationship between the decision-makers? (i.e. lack of independence?)
Ø Is there a bias issue?
Ø What are the appeal body's remedial powers? Does it even have the ability to correct a
lack of procedural fairness (e.g. by sending it back to the decision-maker below)?
v The power to review on errors of law includes the ability to review errors in PF.
Ø Consider also costs and expeditiousness (the “balance of convenience”)
§ Example: Student kicked out for poor grades. Gets no PF from committee, but has statutory
de novo appeal right to the senate committee. Court: It’s a de novo appeal and the senate has
sufficient powers to fix any errors, so exhaust that first.
(Harlekin)
§ Example: Aboriginal band has statutory right to enact taxes on their reserves. CP had
railways going through the reserves; dispute arises. Band has an internal appeal body to
resolve these tax disputes. Court rejects allegations of bias (like any public tribunal, all
members belong to the taxing band – that’s fine), finds body has sufficient powers and
there’s a further right of appeal to the FCTD. Need to exhaust all of those.
(Matsqui)
Bias
•
The Rule Against Bias: This is one of the two branches of natural justice (p. 5).
o Nemo judex in causa propria sua debet esse: No one ought to be a judge in his own cause.
o This rule applies to all administrative decision-makers, not just quasi-judicial ones. (Energy Probe)
o This rule varies depending on the context; higher for courts than discretionary bodies (Imperial Oil)
o The Standard: Must avoid the reasonable apprehension of bias (RAoB).
§ This has a two-part objective test
(Baker, RDS):
Ø The notional person considering the alleged bias must be reasonable; and
v View the matter realistically and practically
(Baker)
Baker is citing
v
Be
informed
of
all
relevant
circumstances
(Baker,
RDS)
Committee for
Justice and
v Have thought the matter through
(Baker)
Liberty v.
v
Not
have
a
“very
sensitive
or
scrupulous
conscience”
(RDS)
National
Energy Board
Ø The apprehension of bias must also be reasonable in the circumstances of the case
§ Ask: Would the above person think that “it is more likely than not that the [decisionmaker], whether consciously or unconsciously, would not decide fairly?”
(Baker)
o Defining Bias: Not all preconceptions are impermissible; the test is directed at determining
what constitutes a disqualifying bias in the particular circumstances of the case
(Imperial Oil)
§ Disqualifying bias is a state of mind that is predisposed to a particular result or is closed
with regard to particular issues. Impartiality = disinterest in outcome, open to persuasion. (RDS)
Ø This is about independence of thought, not institutional structure (that falls under the
independence analysis; see Lack of Independence, p. 13)
(Bell Canada)
o The onus of proof is on the party alleging bias
(RDS)
o Example: Judge comments that white police officers sometime mislead the court in cases with
black ∆s. SCC: No RAoB; just observing the “racial dynamic” (4JJ), “close to the line” (2JJ) (RDS)
10
•
•
•
Administrative Law o Example: Judge makes disparaging remarks re: residents of a neighbourhood during a
sentencing hearing. RAoB found; judge loses her office.
(Moreau-Bérubé)
Pecuniary Interests:
o Any direct personal pecuniary interest in a matter automatically disqualifies.
(Energy Probe)
§ A "direct" pecuniary interest requires a relatively high level of certainty.
(Energy Probe)
Ø Example: Owning shares in a company that might benefit as a result of a regulatory
decision is not sufficiently direct. An assured contract would be direct.
(Energy Probe)
§ Example: Lawyer is up for a disciplinary hearing from the Bar. If he wins, the Bar must pay
costs. Lawyers pay for the Bar's costs, and lawyers sit on the administrative panel. Financial
interest is too “remote, speculative and attenuated” that it can’t be said to be direct. (Pearlman)
Ø Court considered what a reasonable person would look at in determining directness: the
scheme is created by statute, panel’s members have the same interest as any other
lawyer, it’s just recouping costs and not profiting. Overall, reasonable to say no RAoB.
§ Example: Egg producer in an action with a regulatory board that has other egg producers on
it due to statutory requirement. Not direct, no RAoB.
(Burnbrae)
§ Example: Aboriginal band members on band appeal body determing whether CP is subject
to the band’s taxes. Not a direct interest, no RAoB; they’re members of the public!
(Matsqui)
§ Example: Minister has statutory authority to order parties to clean up environmental
damage (otherwise the gov’t pays). No direct interest; acting as a rep. for Crown. (Imperial Oil)
o If the interest is indirect, then the standard RAoB test applies
(Pearlman)
Antagonism or Association Between Party and Decision-Maker (“Personal Relationship”):
o Evidence of personal animosity is a surefire way to find a RAoB
(Baker)
o Example: Business director is before a panel for sanctions. Director of a competing company is
on the panel. Business competitor relationship – RAoB, director disqualified. (Bennett and Doman)
§ Court: This is pretty tenuous; will hurting π also hurt his company? Some reasonable
people might think this, so we’ll err on the side of caution and find a RAoB.
Involvement of Decision Maker at Earlier Stages:
o Re-Hearing a Matter: It’s usually not an issue for tribunals to re-hear matters after JR.
§ Example: Sequal to Innisfil. Same board hearing the same issues; doesn’t allow new
evidence to be presented. RAoB found.
(Township of Vespra)
§ Example: Arbitrator finds that party’s evidence was not credible. Sent back on a different
ground; Court finds that it is "unrealistic" for the decision-maker to not carry over a bias
regarding her credibility; remitted to different panel for re-hearing.
(BCNU)
o Prior Involvement: Sufficiently close prior involvement may disqualify.
§ Example: D is former President of the Canada Development Corp, part of a group making a
pipeline proposal that the National Energy Board is reviewing for approval. D is on NEB.
Court finds RAoB; “personal and extensive” involvement with project; use strict (lawyerlike) standard because NEB needs to keep public confidence
(Cttee. for Justice and Liberty)
Ø Dissent: But this board needs expertise, and experts have history in the field! And it’s
discretionary, policy-based; should be a lower standard
(Cttee. for Justice and Liberty)
§ Example: Two Aboriginal bands sue each other over land claims. At SCC, Binnie J writes
the unanimous opinion. 15 years prior, Binnie J was the Deputy AG for Canada for all nontax matters, and had attended a meeting on these issues. Court rejects RAoB; it was a long
time ago, involvement was limited, the decision was unanimous anyways, and there is a
strong presumption of judicial impartiality.
(Wewaykum Indian Band)
o Overlapping Functions: The same party should not be both an investigator and adjudicator(Brosseau)
§ This, like everything else, is subject to the defence of statutory authorization (below)
§ Example: Act allows gov’t lawyers to advise on investigations, pre-hearing issues, issues at
11
•
•
•
Administrative Law hearing, and policy-writing. Overlapping functions of these lawyers causes RAoB (Quebec Inc.)
§ Example: Chair instructs staff to investigate companies, then reviews report and decides
whether to hold a hearing, then sits on the hearing panel. Court wants to make statute work
(economic reg.), finds that the statute allows this by necessary implication.
(Brosseau)
Statutory Authorization Defence and the Use of Rights Documents to Override It:
o Note: Everything said under Statutory Authorization and Rights Documents (p. 4) applies here.
o A statute may expressly or by necessary implication require or allow the circumstances giving
rise to bias
(Brosseau)
o Example: Statutory authorization allows overlapping functions (see above). Statute is left
standing, no constitutional override (note: AB, not federal, so no CBR)
(Brosseau)
o Example: Statutory authorization allows overlapping functions. Court applies Quebec Charter
and applies the institutional impartiality test: “Would an informed person, viewing the matter
realistically and practically, and having thought the matter through, apprehend a real likelihood
of bias in a substantial number of cases”? Court concludes no; sharing lawyers is fine. (Quebec Inc.)
§ This is different from Brosseau; it’s under the Quebec Charter, and it might apply to CBR
§ This test considers the worst-case possibility, not the specifics of what happened in the case
o Example: HR Committee decides which complaints to send to HR Tribunal, Committee Chair
also gets to pick who’s on the Tribunal’s panels and appears before them. RAoB found, but
statute authorizes scheme. CBR s. 2(e) applies – fair hearing for determination of rights (MacBain)
o Example: Minister of Labour gets to appoint arbitration panellist in health labour disputes.
Financial bias alleged (could want to pay health workers less). Statutory authorization.
(CUPE)
Attitudinal Bias (“Pre-Judgment”): Unless a precondition of the position, it’s probably bad.
o Example: π applies for tenure, other profs asked for their opinions. Someone with a negative
opinion gets put on tenure committee. No RAoB – they’re supposed to have opinions.
(Paine)
o Example: Feminist HR advocate wrote extensively on social issues, was a party to a
discrimination complaint that was stalled. She gets put on a panel reviewing a similar systemic
discrimination complaint at another company. She withdraws as a party from the complaint, but
it’s too late – she has an interest in the 1st complaint, and can’t be put on a panel where she has
a chance to create a precedent that can be used in that case. Writings not a factor.
(Great Atlantic)
o Example: Police officers suing city to remove mandatory retirement at age 60 because it isn’t a
bona fide requirement. City argues it is. Panellist has expressed views that mandatory
retirement for professors is not bona fide. No RAoB – Experts shouldn’t be excluded merely
because they have expressed views in the field, plus this doesn’t indicate pre-judgment.
(Large)
Variations in Standards Used To Test For Bias:
o Relaxed Test for bias: In cases of alleged “pre-judgment” where elected decision-makers
(e.g. municipal councilors) are concerned, the standard is whether they have “amenable to
persuasion" and do not have a closed mind.
(OSBRA, Save Richmond)
§ Mere statements of support one way or the other do not indicate a closed mind – need to be
able to show that the person is incapable of change
(OSBRA)
§ Example: Alderman says that it would take something “significant” to change his mind.
This doesn’t meet the closed mind test – still possible to change mind.
(Save Richmond)
o Bifurcated approach: In cases of policy-oriented boards regarding comments that board
members make prior to a hearing, use the relaxed approach. They must abide by the “normal”
RAoB standard once a hearing has actually started.
(Newfoundland Tel)
§ Example: Adjudicator at rate-setting hearing says corp. directors are paid too much, decides
against rate increase. Not an elected position; applies bifurcated approach, finds RAoB (Nfld Tel)
o Example: Gomery (retired J.) makes neg comments in the media regarding the πs (investigating
them after political scandal). Mid-to-High PF – reps of high-profile people. RAoB found. (Pelletier)
12
Administrative Law Lack of Independence
•
•
•
•
•
•
This refers to a lack of institutional independence, which concerns the relationships between
tribunals’ members and others. Individual independence is just impartiality, covered above (Bell Canada)
Test: Is there a reasonable apprehension of a lack of sufficient independence? Factors:
(Valente)
o Security of tenure for members
(Valente)
§ Fixed terms of any length are fine. "At pleasure" terms generally aren’t
(Quebec Inc.)
Ø Unless it’s a statutory requirement and no rights document overrides, of course (Ocean Port)
§ Contracts or Orders in Council at just as good as statutes for establishing tenure
(Quebec Inc.)
§ Example: Old board soon to be abolished, new board being put in place. Old members are
“eligible” to be hired by gov’t. Not a factor against independence for old board.
(Sethi)
Ø Prof: But might the old members start deciding in favour of the gov’t to curry favour?
§ Example: Chair of Tribunal has the power to extend board members’ positions until the end
of the case(s) they’re currently hearing. No lack of independence – someone needs to do
this, and the moment the decision is rendered is when the term ends, so no bias.
(Bell Canada)
o Financial security of members
(Valente)
§ Example: Prosecutor also decides who sits on the panel; panellists are hired on a per-case
basis. Financially dependent on prosecutor – may try to curry favour to get put on panels
more often (and thus get paid more). Technically “fixed” terms, but also a tenure issue (MacBain)
o Independence administrative arrangements that are closely related to judicial functions (Valente)
§ This would include the assignment/scheduling of cases, etc.
(Valente)
§ Example: Many points of contact between Minister and tribunal (they report to Min, Min
approves policies, etc). This is just Ministerial oversight; no concern for bias.
(Quebec Inc.)
Standard to apply:
o Test must be applied flexibly, with regard to the operational reality (i.e. actual circs.) (Quebec Inc.)
o This is assessed from the perspective of the same notional person who assesses impartiality;
reasonable, informed, realistic, practical, non very sensitive, etc
(Quebec Inc.)
Restrictions on the Valente test:
o It only applies to tribunals that are "court-like" and have adjudicative functions
(Valente)
o Like other tests, it needs to be applied flexibly with regard to the context
(Valente)
Statutory Authorization: Statutes may set out tenure, remuneration and independence
o There is no generalized constitutional guarantee protecting administrative independence (Ocean Port)
§ Rights docs may still apply, they just need a different [protected] right to be in issue
§ Note: Ocean Port was in BC, so only the Charter was at issue. No CBR.
(Ocean Port)
o BC ATA ss. 2-10 include provisions setting out remuneration and tenure.
(ATA ss. 2-10)
Example: Matsqui (Aboriginal tax body): No firm decision on independence.
(Matsqui)
o 2/9 JJ say it fails the test because it has high PF (court-like) but no tenure or remuneration terms
o 4/9 JJ say it passes the test because as an operational reality there’s no RALSI on the facts.
13
Administrative Law Substantive Review
The Dunsmuir Approach
•
Policy: Court is trying to unaddress the tension between the Rule of Law and functionalism (Dunsmuir)
o Courts must ensure that administrative bodies operated within the power that they have been
granted. Balance is achieved by giving deference on non-jurisdictional questions
(Dunsmuir)
• Statutory Appeals: The Dunsmuir framework applies (unless there’s a statutory SOR)(Nolan, Bell Aliant)
• Standards of Review (“SOR”):
(Dunsmuir)
o Correctness: No deference at all. Figure out what should have happened, then order it. (Dunsmuir)
o Reasonableness: A deferential approach.
(Dunsmuir)
§ In applying this standard, courts must inquire into the following factors:
Ø The tribunal's process of articulating the reasons: Consider the existence of
justification, transparency and intelligibility
(Dunsmuir)
Ø The outcomes reached: Does the decision fall within a range of possible outcomes
that are defensible in light of the facts and the law?
(Dunsmuir)
§ Courts deny that the reasonableness SOR is actually a broad range of SORs that vary based
on the context, but that seems to be how they treat it.
Ø Example: Due to the considerable deference owed to the board, its decision fell within
the “range of reasonable reasonable decisions”
(Khosa)
Ø Example: Tribunal considering statutory interpretation. Has expertise, privative clause,
etc, so reasonableness applies, but the interpretation was “deeply flawed”, unreas. (Dunsmuir)
• Test for determining which standard of review to apply: Use the first one that applies:
(Dunsmuir)
o Statutory SORs: It is open to the legislature to specify the SOR
§ Jurisdictional Questions: Specifying a non-correctness SOR will likely be unconst.(See Crevier)
§ BC ATA: Specifies SOR for tribunals with a privative clause and without.
(ATA ss. 58, 59)
Ø These provisions preserve the patent unreasonableness standard
(Manz)
§ FCA s. 18.1(4): Sets out grounds of review, not SORs. Dunsmuir still applies.
(Khosa)
o Shortcut: Has the jurisprudence already determined the SOR for this category of question?
§ Trick: If the Court wants to, it will distinguish cases from established categories with pretty
flimsy excuses. e.g. Decision 1 involves a tribunal interpreting a pensions act; correctness.
Decision 2: same tribunal, but interpreting pension contract. Reasonableness.
(Nolan)
§ Reasonableness will usually apply automatically in the following categories:
(Dunsmuir)
Ø Questions of fact
This is effectively every type of question except for questions of
Ø Questions of discretion
law, and even those sometimes fall under reasonableness!
Ø Questions of policy
Ø Questions of mixed law and fact
v Try asking whether the answer will provide a legal precedent or not. The more
unique the answer is the specific facts, the more likely it is to be mixed.
(Southam)
v A question of mixed law and fact often consist of applying the law to the facts.
Deference is generally deserved here. e.g. determining costs is a mized question (Smith)
v Example: Asking whether what ∆ did was “unprofessional conduct” is a question of
mixed fact and law; applying legal definition to the facts.
(Ryan)
§ Reasonableness will apply to questions of law in the following categories:
Ø Always: Where a tribunal is interpreting its own statute[s] which is closely connected to
its functions with which it will have a particular familiarity.
(Dunsmuir)
This is most relevant Ø Sometimes: Where a tribunal has developed particular expertise in the application of a
with the tribunal’s
general common/civil law rule in relation to a particular statutory context
(Dunsmuir)
“home” statute
v Example: Adjudications in labour law may fall under this rubric.
(Dunsmuir)
14
Administrative Law Ø Costs: Absent “strong factors” for correctness, costs will use reasonableness SOR
(Smith)
v Costs are usually discretionary and mostly fact-based (but they may be law, too) (Smith)
§ Correctness will apply to questions of law automatically in the following categories:
Ø Constitutional questions
(Dunsmuir)
Ø "True" questions of jurisdiction or vires
(Dunsmuir)
v Narrowly defined: “Does the tribunal have the authority to make this decision?”
v Must not return to the pre-CUPE broad jurisdictional question analysis.
(Dunsmuir)
v Example: Determining whether there’s jurisdiction to hear a particular dispute from
particular parties is a matter of “true jurisdiction”.
(Northrupp)
Ø Questions of general law that are of central importance to the legal system and are
outside the tribunal’s area of specialized expertise.
(Dunsmuir)
Ø Questions of the jurisdictional lines between two specialized tribunals
(Dunsmuir)
§ Factors pointing to a reasonableness SOR on a question of law are:
(Dunsmuir)
Ø A privative clause (i.e. statutory direction indicating the need for deference)
v This is a “strong”, but not determinative factor in favour of deference.
(Dunsmuir)
v An “exclusive jursdiction” clause is like a weak privative clause. Still deferential. (Khosa)
v If there is no privative clause, this has neutral effect (doesn’t suggest correctness)(Khosa)
Ø Discrete and special administrative regime that the tribunal has special expertise in
v Example: Labour relations arbitration
(Dunsmuir)
Ø The nature of the question of law: if it is not “of central importance to the legal
system ... and outside the ... specialized area of expertise” of the tribunal, it may
attract the reasonableness SOR if the above two factors are also in favour.
o Full Analysis: If the above shortcuts don’t solve the problem, consider these factors:
§ The presence or absence of a privative clause
Ø An exclusive jurisdiction clause is like a weak privative clause. Still deferential.
(Khosa)
Ø If there is no privative clause, this has neutral effect (no SOR suggested)
(Khosa, Dr Q)
Ø An appeal provision is the opposite of a privative clause, suggests high PF (Pushpanathan)
§ The purpose of the tribunal as determined by interpretation of enabling legislation
Ø Prof: Note that this has changed from the old P&F test (so prior caselaw isn’t as useful)
Ø Broadly discretionary language in a regulatory context can be construed as a purpose of
“forming public policy”, which has very low PF.
(Pezzim)
v Example: The tribunal “may” do X or Y. Discretionary.
(Ryan)
Ø If the statute requires the tribunal to select from a range of remedial choices, low PF (Dr Q)
Ø Where the purpose is to protect the public, low PF
(Dr Q)
Ø Where the issues are policy-centric, low PF
(Dr Q)
Ø Where the tribunal must consider "all factors it considers relevant", low PF
(Dr Q)
Ø Where the tribunal must consider scientific or technical issues, low PF
(Dr Q)
Ø Example: Immigration board hears a “wide range” of imm. appeals. Low PF
(Khosa)
Ø Example: CRTC has broad powers to regulate telecoms (statute uses “any” a lot,
privative clause, expertise). Purpose is broad-scale economic regulation
(Bell Aliant)
Ø Example: Self-regulating professional bodies (e.g. Law Societies) are entitled to
deference in their decisions
(Ryan)
§ The nature of the question at issue (this depends on court’s characterization)
Ø Does the statute use discretionary language?
(e.g. Bell Aliant)
Ø Complexity of the regulatory scheme and the tribunal’s expertise are relevant here. (Nolan)
Ø Specialized or economic sectors of activity have a low PF.
(Nolan)
Ø Trick: If the tribunal deals with individual rights, but for whole groups of people (e.g.
pensions), then the importance gets reduced (and, with expertise, suggests low PF)
(Nolan)
15
Administrative Law Compare
these two:
Court is
using smoke
and mirrors
§
Ø Example: Question is whether H&C reasons warrant “special relief” (i.e. not getting
deported). This is dealing with a "discretionary privilege" (to waive reqs.). Low PF (Khosa)
Ø Example: Question is whether an exemption from deportation should be granted on the
basis of H&C reasons. This is dealing with “individual rights”. High PF.
(Baker)
Ø Example: Question regarding types of employee termination. Not of central
importance to the legal system. Low PF
(Dunsmuir)
Ø Example: Where a legal definition is given in economic terms, it’s really more an
economics question than a legal question (and so expertise applies, low PF)
(Pezzim)
The expertise of the tribunal (expertise => low PF)
Ø This is the most important factor
(Southam)
Ø Expertise is reinforced if you’re dealing with the tribunal’s home statute.
(Dunsmuir)
Ø Policy: Jurisdiction shouldn’t be as broad as in CUPE. Don’t overdo correctness (Dunsmuir)
Ø Example: Labour arbitration board considering types of termination. Expertise. (Dunsmuir)
Ø Example: Immigration board considering if H&C factors apply. Expertise (Khosa, Dunsmuir)
Ø Example: A Law Society panel made up of lawyers has specialized expertise, since
judges aren’t practising lawyers. Esp. if there’s a lay member on the panel
(Ryan)
Pre-Dunsmuir Precedents
•
•
•
•
CUPE: Expanded the meaning of “jurisdictional question” and added the SOR of patent
unreasonableness (“PU”). This was a move towards judicial deference.
o Later cases retreated back towards the Rule of Law approach (e.g. Bibeault)
o Pezzim recognized a spectrum of SORs, from PU to correctness (later rejected in Ryan)
Southam: Added the standard of "reasonableness simpliciter" (“RS”).
Pushpanathan (SCC 1998): Court adopted the "pragmatic and functional approach".
o 3 SORs: Correctness, PU, and RS; the SOR must be determined first, before any anything else.
o Factors to consider in selecting a SOR:
§ The wording of the enactment that confers jurisdiction on the tribunal
§ The purpose of the statute that creates the tribunal & the reason for the tribunal’s existence
§ The area of expertise of the tribunal members
§ The nature of the problem before the tribunal
Dunsmuir (SCC 2008): Reformed the P&F approach to include a number of circumstances where
the SOR did not need to be determined first, and combined PU & RS into “reasonableness”.
Privative Clauses
• Questions within the tribunal’s “core jurisdiction” are reviewable on the PU SOR.
(CUPE)
o Example: Interpreting ambiguity in the home statute is within that jurisdiction. PU
(CUPE)
o Interpretation of provisions that limit or confer jurisdiction are outside of the tribunal's core
jurisdiction, and must be reviewed on the correctness standard.
(Bibeault)
Statutory Appeals
• Cases where there is a right of appeal and no more expertise than the court: correctness SOR (Pezzim)
• Cases where there is a privative clause, the matter is within the tribunal's specialized expertise, and
no statutory right of appeal: PU SOR (lowest PF)
(Pezzim)
• Despite appeal provisions, should apply the whole P&F approach to determine the SOR
(Southam)
The Pragmatic and Functional Approach
• No longer looking for “jurisdictional questions”; any question that satisfies the P&F approach is a
jurisdictional question. It’s an outcome, not a prerequisite.
(Pushpanathan)
• There is no spectrum of available SORs; just the 3 points on the spectrum.
(Ryan)
• Framework:
(Pushpanathan)
16
•
Administrative Law o Purpose: To determine legislative intent – was this question intended to be left entirely to the
discretion of the tribunal? If so, apply deference. Otherwise, apply correctness.
o Application: Apply test to question raised by the specific provision the tribunal’s interpreting.
o Factors: None of these are determinative
§ Privative clause [or an appeal provision]
§ Expertise [relative expertise on the specific question at issue]
Ø This is the most important factor. Consider the following:
v The composition of the tribunal
v Are the members appointed because of their expertise?
v Does the composition make the decision-making process very different from judicial
decision-making?
o Having a lay-person on the Board shifts the analysis towards deference, since
they're explicitly there for non-judicial decision-making.
(Ryan)
o Prof: This could go under expertise or under purpose
v Are the procedures court-like or non-court-like?
v What is the Board's relative expertise in regards to the particular question at issue?
o Example: No one is more expert than the courts on human rights. (Pushpanathan)
o Purpose of the Act as a whole and of the provision in particular [the “polycentricity principle”]
§ Deference is suggested if the tribunal is involved in:
Ø interest-balancing between competing groups
Ø policy-creation
Ø broad regulatory functions
§ Example: Evaluating refugee claims isn’t policy-determiantion, and interests aren't being
balanced. The question is "does person X have right Y?". This is a judicial purpose(Pushpanathan)
o Nature of the problem: Question of law? Question of fact? Question of mixed law/fact?
§ Pure questions of law lean towards the correctness SOR. If the other factors don't establish a
different standard (or they're ambiguous), then correctness should be SOR.
(Pushpanathan)
§ Pure questions of fact are generally highly deferential.
§ Mixed questions of fact and law require a balancing act: Is it more factual or legal? The
more factual it is, the more that deference is supported.
Example: Appeal provision + discretionary terms
Critiques
• Lebel J’s cri de couer: The process for determining the standard of review is too unwieldy!
o Why always apply the whole P&F approach? If it's clearly an important question to the legal
system as a whole and it's outside of the Board's expertise, why not just hold it to correctness
and be done with it?
o This is affecting the reputation of judicial review law in Canada. There's lots of confusion
between PU and RS, it's ambiguous and it's exacerbating litigation.
17
Administrative Law Abuse of Discretion as a Ground for Judicial Review
•
•
•
Development:
o Pre-Baker, discretionary decisions were reviewed on two bases:
(Roncarelli)
§ Genuine Exercise: This was an infrequent and fact-based inquiry. Issue include:
Ø Rule against sub-delegation: The empowered party must be the one to use the power
Ø Rule against abdication: No one can dictate the empowered party’s exercises of power
Ø Rule against fettering: The empowered party must fully exercise their discretion; they
must not fetter the discretion with blind adherence to an internal policy.
§ Legality: Proper authorization of the discretion. The courts would ensure that:
Ø The power was exercised for proper purposes
Ø The decision was not made on the basis of irrelevant or extraneous considerations
Ø All relevant considerations were taking into account (i.e. all the considerations
required by the statute, implicitly or explicitly)
Ø The discretion was not exercised in bad faith, arbitrarily or capriciously.
o Example: Premier of Quebec gets liquor board to revoke π’s licence because π’s a Jehovah’s
Witness. Errors: improper purpose, irrelevant consideration, bad faith, dictation.
(Roncarelli)
o Pre-Dunsmuir, discretionary and non-discret. decisions were reviewed on the P&F approach (Baker)
§ Today, it’s really just a very, very deferential reasonableness standard.
A discretionary decision is only reviewable (and then only on a reasonableness SOR) if:
(Suresh)
o It was made arbitrarily or in bad faith
o It cannot be supported on the evidence
o The tribunal failed to consider the appropriate factors
§ The Court will not reweigh factors if the decision was discretionary.
(Suresh)
Ø Baker breaks this, but Suresh explains this away as a “special case”, claiming that Baker
just found some implicit primary factors that weren’t considered
(Suresh)
§ Example: Immigration board considered each factor required by statute. Court refused to
re-weight; no factors were missed, so the decision is not reviewable.
(Khosa)
§ Example: Statute requires Minister to appoint a person to a labour arbitration panel who he
thinks is “qualified to act”. Court finds that the statute implicitly requires consideration of
the person’s qualifications, as well as the acceptability of the person to the parties. Unreas.(CUPE)
Unreviewable discretionary powers:
o Exercise of the Crown prerogative for the purpose of national security was unreviewable
(CCSU)
o Later: Crown prerogative to advise the Queen on conferral of honours was reviewable
(Black)
§ The source of the power (legislative vs. prerog.) doesn’t matter – subject matter does.
§ Security/war-related subjects are not reviewable. Individual-related exercises are.
18
Administrative Law Index of Cases
Short Name
Ct./Year
Keywords
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