Law 450
Administrative
Law
Lewans
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Natural Justice:
Procedural Fairness:
 Includes: Notice, Hearing, Testing Evidence, Legal Counsel
 We find these rights to PF in statutes, but if a statute fails to give us a right to PF
or expressly does not, then we can resort to common law and the Charter
Principles of Fundamental Justice:
 Includes: arbitrariness, vagueness, overbreadth, right to make full answer and
defence, mens rea component
Cooper v. Wandsworth Board of Works (UK, 1863, Court of Common Pleas)
 Statute says if you want to buy a house, you must apply 7 days in advance for a
permit before starting construction. Cooper didn’t do this and the municipality
tore his house down and didn’t give him a hearing.
 If you are going to tear down someone’s house, there is a big public interest and it
is important to the person, so they have a duty to give them a chance to be heard
 Moving away from natural justice and towards PF: expanding bc court says its not
bound by traditional analytical categories that limit the reach of administrative
bodies (these administrative bodies don’t act like courts but nevertheless they are
bound by the duty of PF)
 Ratio: There is a duty to procedural fairness independent of the statute –
when the statue is silent, there is still a common law duty of fairness that the
courts are entitled to enforce Common Law Duty of Fairness
Nicholson and Haldimand-Norfolk Regional Board of Commissioner of Police (1979,
SCC)
 Police constable hired on probationary basis, promoted to second constable 11
months in and then fired 6 months later with no notice or reasons from the board.
Rights of PF are mentioned in the statute but prima facie, do not extend to
Nicholson, as you must first be there for 18 months.
 The statute does not entitle him to PF, but nevertheless, the court holds in his
favour. Board had legal obligation to give notice and to hear Nicholson before
termination, either orally or written.
 This is Canada’s Cooper, establishing the doctrine of PF in Canadian law.
Broadens procedural protection to encompass activities that fall outside of the
judicial or quasi-judicial realm and lessens the importance of such classifications.
 Ratio: The rules of natural justice dictate that not just in the adjudicative
field, but in the administrative or executive field as well, there is a general
duty of fairness.
Knight v Indian Head School Division No 19 (1990 SCC)
 Board dismissed the director of education when he refused to accept a renewal of
his contract of a shorter term. He then brought an action for wrongful dismissal.
SCC majority held that he was owed PF but that it was satisfied (right to notice
and opportunity to respond was satisfied).
 Knight broadens the contextual analysis and extends PF to offices of pleasure
(which is private realm)
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Reaffirms a CL freestanding right to PF (don’t have to rely on statute to get the
right…statute will explicitly or implicitly exclude) (Majority reaffirms Nicholson)
Re-affirm that there is no need to distinguish between judicial, quasi-judicial and
administrative
But created distinctions between legislative/general vs. administrative/specific
Sopinka J. (minority) says to look at statute to see whether person falls into an
exception in order to be owed a duty of fairness says no general rule, look to
the statute
LHD (Majority) confirms Nicholson common law right to fairness unless
altered explicitly or implicitly by statute or contract
Effect of Dunsmuir on Knight (exam): look at disagreement bw Heureux-Dube and
Sopinka in Knight and how Dunsmuir changes things!!!
Dunsmuir v New Brunswick (2008 SCC)
 Former lawyer goes to work at the QB in New Brunswick. Has some disputes
with his supervisor and is fired.
 Doesn’t expressly overrule Knight – So you bring both up on the exam, and you
make a principle argument based on the facts
 Sopinka J. - Where a public office holder’s employment is governed by an
employment contract, disputes relating to dismissal should be resolved according
to terms of the contract (express or implied) and any applicable stat and
regulations just like any contractual employees
 Duty of fairness may apply in 3 circumstances
o 1) where a public employee is not protected by a contract of employment
o 2) where an office-holder is expressly subject to summary dismissal
o 3) where a “duty of fairness” flows by necessary implication from the
statutory power
o So, perhaps Dunsmuir limits LHD’s approach in Knight to only be
allowed to look to general common law duty when these circumstances
are met
 In this case, they looked to employment contract first (so they choose to look to
contract or statute instead of common law first)
 See [pg 105] in textbook
Baker v Canada (Minister of Citizenship and Immigration) (1999 SCC)
 Analytical Framework for PF:
 1. Nature of the decision being made
o The more judicial, the more fairness, the more general and legislative, less
fairness
 2. Nature of the statutory scheme/Purpose of the Statute
o If the decision is final, you want to make sure it has more procedural
integrity
 3. Importance of the decision to the individual affected
o Loss of Property- Cooper
o Being Fired- Nicholson and Knight
o Prisoner punishment- Cardinal
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o Deportation- Baker
o Vs. decision on architecture to a neighbor?
4. Legitimate expectations of the person challenging
o Legitimate expectation is a term of art
 State conduct over a period of time that gives rise to the
expectation that you will act in accordance with past behavior
o Sometimes it is grounded in the statute, but other times it is grounded in
past behavior, or guidelines
o This can give rise to actionable rights, if you are denied a past practice of
procedural rights
o Ie. You want to bring a lawyer to a hearing. They always allow lawyers.
They don’t allow your lawyer. You have an argument based on legitimate
expectation that you were denied procedural rights
5. Deference
o Judges cannot simply impose there own practices on top of an
administrative decision makers
o This can have unintended consequences in the delivery of services
o Don’t rush to grant the full gambit of processes they would normally get
in law
 Not practical to the administration of government programs
o Is the process “sufficient” to satisfy procedural fairness
Note: duty to give reasons established in Baker
Threshold Decisions
 Threshold issue: if you’re representing a govt entity limiting something, then if
you win on threshold issue, you can cut case off there. Don’t have to go to Baker
etc
 The closer you get to public policy/legislative decision, less fairness. The more
you push it to private property rights, the more fairness applies.
Is Procedural Fairness Owed in the Particular Situation?
Canada (AG) v Inuit Tapirisat of Canada (1980 SCC) [Bell rate increase]
 CRTC regulates what Bell can charge and makes its recommendations to Cabinet.
Consumer group was given opp to make appeal but not opp to make written
submissions before Cabinet (as opposed to Bell and CRTC). Inuit applies to
federal court for a declaration saying they have procedural rights – a right to
participate and they ask for a hearing. Court says very limited PF accorded here.
 Threshold Question: Estey seems caught bw 2 modes of analysis – conceptual vs
contextual? He looks at it as a legislative decision but then says just because it’s
legislative, doesn’t mean no PF will be owed
 Is judge talking about the nature of the decision making body, the nature of the
decision itself, the types of interests that are being affected? That is unclear in this
case
 Very unusual for Cabinet to have a duty of PF. Not so much the character of the
decision maker but moreso the nature of the decision this decision was a
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legislative one (not judicial) therefore no right of those affected to make
objections, consultation, etc and no hearing is reqd
Homex Realty and Development Co Ltd v Wyoming (Village) (1980 SCC) [Municipal
counsel passes by-law rezoning property]
 Municipal council is passing by-laws – re-zoning property. Have a property
developer who has property rights. Battle over what developer was going to pay
for wrt services (sewage, water, etc)
 SCC says this is affecting property rights as in Cooper and therefore a duty of PF
applies but SCC denied a remedy bc Homex had acted in a manner that court
thought was inappropriate
 Typically, legislative decisions do not require duty of PF. This seems like
legislative since it’s a by-law being passed. But argument that it affects property
rights…so perhaps we should be looking at the nature of the interest affected even
though it is characterized as a legislative decision  a bylaw aimed deliberately
at limiting the rights of one individual will attract a requirement of PF. Must
consider the form and substance of the enactment.
 Dickson (Minority) looks at impact on the person whereas Estey (Majority) looks
at different functions in legislative vs. judicial/quasi-judicial Both judges reach
same conclusion but use different frameworks to reach those decisions. Dickson’s
makes more sense.
Canadian Association of Regulated Importers v Canada (AG) (1993 FCA) [Municipal
decision changing egg import quotas]
 Govt decides to establish a quota system, which would limit the importation of
eggs and chicks. This means farmers’ businesses will be drastically affected. On
appeal, court found no duty of PF.
 Fed Ct Trial Division: This looks like a policy decision, but it actually affects a
very small number of people in a significant way PF is required
 FCA: The exercise is essentially a legislative or public policy matter, with which
the courts do not normally interfere
What degree of Procedural Fairness is Owed in the Circumstances?
Re Webb and Ontario Housing Corporation (1978 ONCA) [woman on welfare evicted
from public housing]
 Webb succeeded in establishing, on the facts of this case, that there was an
obligation on OHC to treat her fairly in the conduct of its investigation and before
terminating her lease. OHC did treat the appellant fairly – it let her know of the
complaints (notice) and gave her an opportunity to remedy or answer them. Webb
loses.
 Either should afford you some level of PF but property rights will afford more PF
than a privilege
 Judge said that the Board here wasn’t acting as a tribunal so decision to determine
tenancy didn’t fall under the Statutory Powers Procedure Act (solely an
administrative decision). So Ms. Webb had to argue common law fairness.
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**Look at statute and determine whether or not it even applies!!!!! If statute
does not apply or does not have express/implied duty of PF, go to common
law and argue for PF**
OHC did treat Webb fairly bc it let her know of the complaints in a written letter
and gave her an opportunity to answer them and remedy them – so their duty of
PF was discharged
Procedural Fairness at Preliminary Investigation Stage
Re Abel and Advisory Review Board (1979 ONPC; 1981 ONCA) [Patients held in
mental institution bc they plead insanity defence want access to medical records]
 Lawyers want access to these records but govt is refusing. Govt will say the
nature of the decision is more public policy and lawyers will say its more about
the patients’ individual rights.
 Court quashed decision of trial judge and sent matter back for reconsideration.
Court not granting disclosure on the spot bc need to respect administrative body’s
ability to make these decisions
 **argue reasons for policy and argue reasons for adjudicative and conceptually
what level of PF is afforded for each, pick one, then go to contextual analysis to
say liberties of person severely affected and higher level of PF
 The impact on the individual is very high in this case. This is the only chance that
applicants have of avoiding a lifetime of incarceration.
 When you look at decision of the Court, its not really differentiating bw a
preliminary matter and a final decision, but saying that even in an investigatory
stage, there can be a duty of PF depending on to what extent the individual rights
are affected
Dairy Producers’ Co-Operative Ltd v Saskatchewan (Human Rights Commission)
(1994 SKQB) [human rights complaint made against employer]
 In the investigative stage, the employer is asking for more disclosure and the
investigating officer doesn’t really respond to those requests…ultimately the
investigator recommends that he thinks there is probable cause to believe that the
employer might be guilty of an offence under the act. Employer is given a without
prejudice letter detailing the allegations. Company is asking for an order quashing
the board from commencing an inquiry by saying that it wasn’t given PF.
 Investigator had no duty of PF but the commission had a duty of PF – is this the
right distinction? investigating officer had no power to affect the rights of the
applicant thus no duty to act fairly. If the commission decided to establish a Board
of Inquiry undoubtedly it had a duty to provide the applicant with the substance of
the evidence against it before any hearing
o Distinguishes duty of PF in different stages of an investigation
 Triparthite investigative decision making process (investigator looking for
reasonable and probably grounds that offence has been committed, then you have
a commission responsible for attempting to settle matter and finally a board of
inquiry to adjudicate the matter)
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At what point were they entitled to PF? Once commission had been empowered to
achieve settlement, then duty of PF arose (but it did not arise at investigation
officer level)
Legitimate Expectations
 LE may arise either from an express promise given on behalf of a public authority
or from the existence of a regular practice which the claimant can reasonably
expect to continue
Reference Re Canada Assistance Plan (1991 SCC) [Canada unilaterally amends
amount of money it will give to AB, BC and ON]
 In the agreement bw Canada and the provinces, it said govt would not change the
terms of the agreement without first consulting the provinces.
 The bill is fine because it is a legislative process. The courts said we cannot
interfere with the governments ability to legislate.
 *If doctrine of legitimate expectations reqd consent, and not merely consultation,
then it would be the source of substantive rights *Doctrine of legitimate
expectations cannot create substantive rights (no right to a guaranteed outcome)
Council of Civil Service Unions v Minister for the Civil Service (1985 UK)
 HOL said there was a LE in this case that employees would be consulted. But
because it involves national security, HOL refused to give relief in this case
 In this case, there was no express undertaking not to issue an executive order of
this nature. Employees thought they had a right to consultation due to past
practice. The nature of this decision is less legislative in nature than the previous
case (Re Canada Assistance Plan)
 Civil Service is national security and LE based on past practice while Reference
re CAP was parliamentary sovereignty and LE based on express undertaking
 Rationale for CAP is more thorough (but more surprising result due to express
undertaking in contract) while Civil Service could have been more specific
Furey v Roman Catholic School Board for Conception Bay Centre (1991 Nfld SCTD)
[School Board closes down school without consulting parents]
 The decision to close the school was made without PF. Decision quashed and
matter referred back for reconsideration.
 The actions of the Board in 1988 and 1989 in employing a consultative process,
together with certain public communications made to parents after 1989, which
referred to guidelines, did have the effect of creating the impression that the
Board was operating under a system of guidelines which allowed for PF kind of
like Baker because there are ministerial guidelines in place that a department
voluntarily assumes and publishes and these guidelines said that residents should
be consulted before deciding whether or not to close their school
 BUT NFLD COA overturned this decision because they said that there wasn’t
reliance on the past practice being followed in this instance.
 I disagree with this rationale…when deciding whether a process is fair or not, I
don’t see why reliance is necessary. It is for the administrative bodies to uphold
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procedural fairness. There shouldn’t be an onus on the complainant to show
reliance in order to benefit from fairness.
Mount Sinai Hospital v Quebec (Minister of Health and Social Services) (2001 SCC)
[Hospital re-located to obtain license which was subsequently denied]
 Hospital was functioning in violation of its license. Minister said that license
would be ok again if hospital relocated but then it did relocate and a new minister
in the new jurisdiction denied the license.
 Binnie J. (Majority) is saying PF is limited to procedural arguments and cannot
get the license based on LE. Remedy should be limited to public consultation.
Sending it back and making sure that they have a right to hearing. Not a
substantive right to the license.
 Substantive rights limited to Charter rights in Canada (so PF/LE is not going to
expand (as it has in England) to create substantive rights)
 Doctrine of legitimate expectations is limited to procedural relief, but sometimes
hard to distinguish bw procedural and substantive (does not require reliance or
knowledge)
 Public law estoppel requires an appreciation of the legislative intent embodied in
the power whose exercise is sought to be estopped; the legislation is paramount;
circumstances that might otherwise create an estoppel may have to yield to an
overriding public interest expressed in the legislative text (Estoppel requires
reliance and knowledge)
 Bottom Line: LE argument helps bolster an argument for PF. Especially potent
when someone has made public statements that they will abide by a consultation
process and then dispense with it. Look at past practices, ministerial guidelines,
official communications between govt and other party.
 LE addresses the threshold question (whether a duty of PF is owed) and content
question (what type of process you are entitled to). If there is a representation
about the type of process that they will be given a hearing, it makes a stronger
argument for PF. Content – what type of PF are you entitled to? Do you get a
hearing? Disclosure? Opportunity to cross-examine witnesses? How much PF do
you get is a content issue.
Fault and PF
Does a claimant merely have to prove that a hearing did not occur? Or does he or she also
need to prove that lack of procedural fairness is attributable to the action or inaction of a
public official?
 At this point, Cdn authorities are unsettled on this question. E.g. a fact scenario
where your property rights may be affected by a municipal decision. They
expropriate you to build LRT. They send you a notice in the mail but you have
moved or its lost in the mail and you do not actually receive notice. Do you think
you should be able to successfully appeal and get a right to a hearing?
 Might have to look at whether there is actual reliance on a public official’s
express representation. Some judges say you need to prove reliance.
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o Argument 1: limited resources, open to abuse on part of person, body
discharged their duty to provide notice
o Argument 2: impact on the individual
o Do Baker analysis on this aspect
Problem: What happens if a claimant fails to receive a fair hearing due because his
of her lawyer is incompetent or makes a mistake?
 Contractual or tort type remedy
Procedural Fairness and the Constitution
 Constitutional argument becomes very effective where statute says expressly
prohibits procedural rights (no hearing, no notice, no disclosure, etc)
 S.7 is impt when you think a statute excludes PF or a specific element of PF
 When would you invoke a BOR argument? It’s an interpretive aid that can get
you your PF that you would otherwise get at common law; another element (seen
in Authorson, although unsuccessful) is that BOR provides protection for property
rights that aren’t protected under the Charter
 Resort to either BOR (if federal legislation) or S.7 of Charter
Canadian Bill of Rights (protects property interests, may include corporations)
 S.1(a): (a) the right of the individual to life, liberty, security of the person and
enjoyment of property, and the right not to be deprived thereof except by due
process of law;
 S.2(e): right to a fair hearing in accordance with the principles of fundamental
justice for the determination of his rights and obligations
Charter (no property interests, individual or person but no corporations)
 S.7: Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.
Authorson v Canada (Attorney General) (2003 SCC) [Veteran’s money]
 Dept of Veteran Affairs charged with handling finances of disabled veterans but
screwed up and didn’t invest properly or pay interest on monies before 1990.
Then Parl enacted Dept of Veterans Affairs Act, which said Crown couldn’t be
sued for interest on monies prior to 1990 (basically legislated the veterans out of
court). Veterans sued Crown for breach of fiduciary duty and said their rights
were breached under ss.1(a) and 2(e) of the Bill of Rights.
 Argument #1: S.1(a) They claimed that they had a property right to the money
being held by the public officials
 They argued that they had procedural rights before Parl enacted the amendment
so they think they are entitled to notice and an opportunity to be consulted
before Parl enacts the piece of legislation (Think about: are there any parallels bw
this and other cases? Reference Re CAP, Inuit-Tapirisat)
o Parl said that you don’t get to get consulted particularly as an interested
party (so vets lost on this first argument)
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Argument #2: S.2(e) argument: instead of claiming a property interest, they are
claiming that their rights and obligations were being affected without a fair
hearing
o This argument fails. S.2(e) states that it only applies to proceedings before
court, tribunal or some other body and Parl does not fall within that
definition.
Singh v Canada (Minister of Employment and Immigration) (1985 SCC)
 Appellants are claiming that they have convention refugee status but the Minister
denied them that status and their applications were not referred to an oral hearing
 Process: Ask Singh about why he fears going back to Sri Lanka. The officer hears
this evidence and then sends it to the minister. So officer doesn’t make any
decisions. Minister is the one who actually decides. Minister sends information to
refugee status advisory committee (keeps up on international events in countries
around the world). Advisory committee looks it over and makes recommendation
to the Minister.
 Singh thinks this is unfair. Singh didn’t know anything of what was going on in
the decision making process. So he had no opportunities to straighten facts on his
behalf.
 Decision of Immigration Appeal Board set aside and applications for
determination of refugee status remanded to the Board. Court said should get
adequate disclosure, right to oral hearing, cross-examination, etc.
Justice Beetz’s Approach - BOR
 Question: Why did Beetz J. resort to the BOR in this case? Why didn’t he decide
the question of procedural fairness by resorting to the common law or the
Charter?
 He didn’t think the content was that explicit in the statute. He thought he could
use the BOR to rehabilitate the statutory scheme in this case. If we apply a softer
interpretive approach counseled by the BOR, we don’t have to resort to the
Charter whereas Wilson J. goes straight to the Charter bc she says matter is too
explicit in the statute.
 It’s like the issue in Webb (was it a right that is entitled to protection or privilege
that govt could extend at will)
 When you come to Canada illegally, some people would argue it is a privilege to
be there while your application is being processed in order to found an
argument in the BOR, you have to show why someone’s legal rights are being
affected
o If its just a privilege – BOR won’t protect you
 Beetz says it affects right to security
 Both justices say an oral hearing is required. This is because credibility is at stake.
There was a disclosure issue here that advisory board was making all these
recommendations and there were all these documents that the refugee applicant
didn’t have access to or couldn’t scrutinize. (similar to Abel)
Justice Wilsons Approach – Charter (Majority)
 Wilson thought statutory scheme was far too detailed to read bw the lines and thus
needed to resort to s.7
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Threshold question: You have to show that life, liberty and security are engaged
(and whether these rights are being engaged by the Cdn govt)
It is sufficient that the fact that this decision will expose the person to these
risks in enough to engage s.7
Physically removed, psychological distress, prospect of abuse if being deported
Charkaoui v Canada (Citizenship and Immigration) (2007 SCC) [Issue security
certificate and want to deport] (Charter argument for PF) [Impt in these cases to pay
attn to statutory and regulatory framework] Lewans says to read this case carefully
 Immigration Minister issues a security certificate to Charkaoui. Security
certificate allows RCMP to arrest and detain ppl that have been deemed to be a
threat to national security. Deemed by minister of immigration acting on advice of
CSIS. There is no formal charge here under the criminal code. Charkoui would
get sent back to Morocco (where he’s from) if he was deported but he says he
would be subject to violence (impact on this individual is particularly high
similar to Singh).
 Decision: The IRPA’s procedure for determining whether a certificate is
reasonable does not conform to the principles of fundamental justice as embodied
in s.7 (life, liberty, security) of the Charter. Not saved by S.1 so procedures were
unconstitutional.
 You have no right to see the information that is before the judge. Main concern is
disclosure (know your case to meet) and the ability of the govt to test that
information (cannot test credibility) and opportunity to respond
 This is an interesting aspect of Charkoui is that Madame Justice McLachlin
considered societal interests in her s.7 analysis
 You have to consider the great impact on the individual (being detained AND
facing prospect of being deported to a country where he fears possibility that he
will be tortured) BUT there is also a great public interest in national security
which helps to tailor rights of PF to those public interests …?
 Court says there might be a way of tweaking this process so that Charkoui doesn’t
get to see everything but he gets to see more than he currently does
Wilson v British Columbia (Medical Services Commission) (1988 BCCA) [Govt
limited giving practitioner numbers to doctors]
 New govt program where govt limited giving doctors practitioner numbers which
they needed in order to practice. This was to decrease amount of money govt
spent on health care. Govt program was designed to incentivize redistribution
throughout the province. Some practitioners couldn’t get a number or had
geographic restrictions on where they could practice. They argued this violated
their rights under s.7 arguing that liberty includes mobility.
 Decision: **The scheme offends the principles of fundamental justice as it is
based on vague and uncertain criteria, which combined with areas of uncontrolled
discretion, leaves substantial scope for arbitrary conduct ** COA said the
regulatory framework did not satisfy the principles of fundamental justice.
 Nature of the regulatory scheme:
o Strong public policy: ensuring everyone in province has access to doctors
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o Legislative: affects doctors generally
o Administrative: impact on doctors as individuals
Charter is not particularly amenable to economic arguments. Not the strongest
argument but did distinguish based on mobility. Using s.7 arguments here kind
of imported economic arguments/rights through the back door.
Blencoe v British Columbia (Human Rights Commission) (2000 SCC) [BC Minister
accused of sexual harassment]
 A minister in govt in BC was accused of sexual harassment and let go and 2
further complaints were filed against him. These were filed with BC Council of
Human Rights. Respondent commenced judicial review proceedings to have the
complaints stayed as it affected his employability in BC. Respondent claimed that
the commission had lost jurisdiction due to unreasonable delay in processing the
complaints. He alleged that the unreasonable delay caused serious prejudice to
him and his family that amounted to an abuse of process and a denial of natural
justice.
 Decision:
 If a body exercises statutory authority then the Charter applies (even if body is
independent of government)
 Liberty interests protects: (Godbout v Longueuil) by regulating my right to
choose where I live, you have violated my liberty and SCC agreed
o Right to liberty also covers right to choose where to work
o Parental choices – how to raise your kids
 Argued that this prolonged delay compelled him to leave the province and seek
employment in Ontario (liberty)
 Security of the person: added element seems to be this psychological harm
element …protects individuals from serious state-imposed psychological stress
(includes assisted suicide and women’s right to abortions)
o Blencoe’s Argument: The very prospect of being convicted triggers a s.7
right under security of the person due to serious state imposed
psychological harm But Bastarache J. rejected these arguments
 Awaiting trial to determine your guilt or innocence = serious psychological stress
(security)
 Blencoe’s argument failed bc: There wasn’t sufficient causable nexus bw the
state’s delay and the decision to move Blencoe’s family to Ontario
o For both liberty and security – not enough causable nexus between the
state’s inaction and what he’s claiming under s.7
 Abuse of Process: When is the delay becoming problematic from an abuse of
process point of view? When its affecting the fairness of the hearing itself
(evidence that is relevant and germane to the claim is being lost/witnesses have
died or memories are lost or unclear)
 Pg 234: Bastarache (Majority) “may amount to an abuse of process …even where
the fairness of a hearing may not be violated…” Bastarache has left the
argument open-ended for the future…you can argue abuse of process on these
grounds…this could be a claim in future cases but its not made out here (balance
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what happened with bringing the administration into disrepute) Bastarache
seems to have a higher threshold
o Lewans says Charkoui case comes to mind for when it might work (case
took 5-6 years to see it all the way through)
To determine if there was an abuse of process at common law, consider
whether there was prejudice from the delay based on these factors:
(1) consider the time taken to the compared to the inherent time requirements of
the matter before the particular administrative body
(2) the causes of delay beyond the inherent time requirements of the matter (what
was happening from time of complaint? when was disclosure given? Understand
the situation and whether delay was largely attributed to Blencoe or to Human
Rights Commission)
(3) the impact of the delay on the person affected (what happened to Blencoe? He
had to move twice, no longer employable in his profession of choice
use the common law abuse of process argument when you’re not sure you can
make a good s.7 argument…not sure whether you can pass threshold of life,
liberty and security of the person under s.7 argument
Notice and Discovery
Alberta Administrative Procedures and Jurisdiction Act
 Applies to an “authority” which is “authorized to exercise a statutory power” (s.1)
AND has been designated “as an authority to which [the Act] applies” (s.2);
 The Act adds to, but does not exclude, other legal entitlements to fair process;
 Notice: “the authority shall give to all parties adequate notice” (s.3)
 Hearing (s.4):
o An authority “shall give the party a reasonable opportunity of furnishing
relevant evidence”
o An authority “shall inform the party of the facts in its possession or the
allegations made to it contrary to the interests of the party”
o An authority “shall give the party an adequate opportunity of making
representations”
 Cross-examination (s.4): the authority shall permit cross-examination where
cross-examination is necessary to test relevant allegations
 Right to oral submissions and counsel (s.6): no general duty to allow oral reps or
lawyers if there is adequate opportunity to provide written submissions
 Reasons (s.7): when an authority’s decision adversely affects “the rights of a
party” the authority must provide a written statement setting out its findings of
fact and the reasons for its decisions
 Constitutional questions (s.11): “a decision maker has no jurisdiction to determine
a question of constitutional law unless a regulation…has conferred jurisdiction on
that decisions…”
 Notice: what form (oral or written)? How must it be delivered? When should it be
given? What detail should the notice include?
 Discovery: Questions is 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” or the “prosecution”
13
o Stinchcombe: one must know the case one must meet; disclosure must not
be perfunctory/superficial; it must be complete, subject only to privilege
or relevance
Canada (Attorney General) v Canada (Commission of Inquiry on the Blood System in
Canada – Krever Commission) (1997 SCC) [Tainted Blood Case]
 In the 1980s, more than 1000 Canadians became directly infected with HIV and
Hep C from blood and blood related products. The govt set up a commission to
investigate. The commission held public hearings and eventually 45 notices were
delivered pursuant to s.13 of the Act. The notices said the Commission might
reach certain conclusions based on the evidence before it, and that these
conclusions may amount to misconduct within the meaning of s.13 of the Act and
the recipients had the right to respond. Many appealed their notices and brought
application for judicial review. People got notice and it was personally served on
them. They got notice just before the hearing.
 Decision: The timing of the delivery of the notices did not amount to a violation
of procedural fairness. Timing of notice was ok in this case because Red Cross
had standing and opportunity to be there
 There is no statutory requirement that the commissioner give notice as soon as he
foresees the possibility of an allegation of misconduct
 In 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
 Although the notices should be given as soon as it is feasible, it is unreasonable to
insist that the notice of misconduct must always be given early
 In light of the nature and purposes of this inquiry, it was impossible to give
adequate detail in the notices before all the evidence had been heard
Pre-Hearing Procedural Fairness - Discovery
 SCC decision Canadian Pacific Airlines- Board has quite a bit of power in
compelling documents- but this is limited to the hearing itself- compelling
production of documents
o BUT, in the pre hearing stage, the Board does not have this power
 But in Ontario (below), court seems to adopt an inherent right to pre-hearing PF
Can be found in statute or can be implied at common law
 Analogy to criminal process and how much discovery (documents) should be
afforded
 If discovery is required, how detailed must it be to satisfy PF? (every document?)
 To what extent is the practice of discovery in the administrative process
analogous to the Stinchcombe doctrine? Or to the civil discovery process?
Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern
General Hospital) (1993 ON Div Ct) [nurses make racist allegations against hospital]
 Board of inquiry set up under ON Human Rights Code to hear complaint of racial
discrimination made by 10 nurses at a hospital. An order was made for the
Commission to provide all statements made by the complainants and the
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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.
Basis for Court’s decision to require disclore:
S.12 of the Statutory Powers Procedure Act 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
Stinchcome – yes: trial by ambush is inappropriate to our legal system, justice is
better served with discovery
o Court says the same idea applies to admin process- makes the process
more rational, acting on good info and making good decisions, as well as
treating people appropriately
Policy reasons that might be given for refusing discovery or disclosure of
documents
o Protection of vulnerable victims?
o Costs/time required for discovery?
o Consider- what are the limiting factors and or trump cards?
o In this case, Court makes big deal out of fact that racism is a serious
allegation
S.4 of the AB Administrative Procedures and Jurisdiction Act Seems to require
disclosure
CIBA-Geigy Ltd v Canada (Patented Medicine Prices Review Board) (1994 FCA)
[Board deciding if company is charging excessive price for pharmaceuticals]
 In deciding to hold a formal hearing, once a patentee has refused to make a
voluntary compliance order the Chairman of the Board considers a report from the
Board staff to the effect that the market price charged for the drug in Canada
exceeds the Board’s guidelines. 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.
 Decision: 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.
CIBA was provided with much more than the minimum disclosure required to
enable it to meet its case.
 Board is supposed to proceed efficiently and to protect the interest of the public
this requires that a hearing shall not be unduly prolonged
 Cost and time are big factors in not giving every single document for disclosure
 Nature of interest affected The administrative tribunal here has economic
regulatory functions and has no power to affect human rights in a way akin to
criminal proceedings
Oral Hearings
Under what circumstances do you think an oral hearing should be required by fairness?
(see, e.g., Singh)
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Credibility cases
Khan v University of Ottawa (1997 ONCA) [Law student misplaces 4th booklet for
exam and fails]
 Law student allegedly had a fourth booklet that was lost, so she fails her evidence
exam
 Consider S.6 of the AB Admin Procedures Act - Doesn’t add anything in giving
an oral hearing- but it doesn’t exclude it either
 Majority allowed an oral hearing
o an oral hearing is required when the determining issue in the decision is
credibility, and the consequences are serious (repeating law school)
o ability to test circumstantial evidence is a factor that leans towards oral
hearing as well
 Dissent said an oral hearing should NOT be granted
o Says this wasn’t simply a character/credibility issue (Khan made it that
way with her claim) she shouldn’t be able to elevate the duty of PF
o It’s more about the contents of the booklet, even with the 4th she would
have probably failed.
o He said nature of the interest is not that high – would only prolong her
studies for one semester
 Baker – not an adjudicative hearing because its not disciplinary – pushes towards
less fairness – no oral hearing
 Nature of the issue not as constrained economically for resources…have time
and money…not so many students appealing
Open vs. Closed Hearing
What values or principles are served by requiring a tribunal to hold a hearing which is
open to the public?
 Public is able to scrutinize, transparency
 Sunlight is the best disinfectant
Under what circumstances might a party wish to have a closed hearing? Under what
circumstances might an administrative official/tribunal want to have a closed hearing? Do
these considerations outweigh the values or principles of transparency or publicity?
 Charqoui – security certificate national security
 Singh national security
 Professional discipline bc of reputational issues
Right to Counsel
 Common law – no absolute right to counsel
Section 6 of the Alberta Administrative Procedures and Jurisdiction Act does not require,
but does not exclude, the right to counsel. Under what circumstances do you think the
right to counsel should be required by law?
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Baker
analysis why is right to counsel particularly pressing under the circumstances of
the case? Consider nature of interest affects and importance of interest.
Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board,
Amalgamated Clothing and Textile Workers’ Union (1979)

A party
entitled to be represented by an agent before a domestic tribunal cannot be
restricted by the tribunal in the choice of its agent, in the absence of an applicable
rule or agreement containing such restriction.
 Decision: employer gets right to counsel Southey recognizes the arbitrator’s
concerns in why he might want to limit the role of counsel. But he says it was
unfair of the arbitrator to do so in this case. Employer expressly stated that it
didn’t feel capable of adequately stating their case. If employer loses this
grievance, its business would not continue to be economically viable. (Note: an
economic argument is not usually the strongest argument in order to be afforded
PF – but in this case, company would face bankruptcy so importance of the
interest is still high)
 Nature of interest affected vital importance to the company this factor
trumped the other ones, so did complexity
 Complexity of the matter – need lawyer to adequately state case

Argume
nts against counsel: Lawyers are timely, costly and may complicate the process
Howard v Stony Mountain Institution (1985 FCA) [Inmate charged with various
offences]

A was an
inmate, and was involved with some incidents which resulted in him being
charged with a variety of “serious/flagrant” disciplinary offences. Possessing
contraban, threatening to assault another person, disobeying a lawful order of a
penitentiary officer, etc. All these charges were on Dec 31, 1982. We don’t know
exactly what happened because the record doesn’t say. If convicted, he loses his
remission (which he earned) and will stay in jail for longer. He obtained counsel
and a Legal Aid Certificate, and counsel shows up. He was denied a right to have
counsel to appear on his behalf, and was found guilty of 6 of the 7 counts for
which he was charged.

Decision
: inmate should have had a right to counsel

The
notice he received about the offences prob did not meet requirements of PF - need
to know your case to meet. Affects your rights so should be given details of
offences – supporting facts.

Prison
official said Act permits me not to allow a lawyer so I’m not going to

Use
Baker to analyze this Nature of the interest affected here is that he could lose
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remission time (time off your sentence for good behaviour) so that indicates that a
reason should be given; and also face solitary confinement which is a pretty
serious thing so if denying a lawyer here, you should have a pretty good reason
for doing so
Court
seems to be satisfied very quickly that there is a s.7 issue here (impact on liberty).
Note: this case was in same year as Singh.
Court
does not go so far as to say that you have an absolute right to counsel…there may
be good reasons in some circumstances to deny the right to counsel (but reasons
of prison official in this case were not good enough)
New Brunswick (Minister of Health and Community Services) v GJ [JG] (1999 SCC)
[Mother loses her children to the state and is denied legal-aid counsel]

Children
have already been taken into custody and question is whether or not order
removing her children from her should be renewed. Legal Aid plan doesn’t supply
legal aid in this context – not provided for situations where your children are
taken into custody of the state. Mother argues that refusal to provide a lawyer in
these circumstances violates her s.7 rights.

Decision
: her right to a fair hearing in this case requires that she be represented by counsel
 Go through s.7 analysis: Is there a right to life, liberty or security of the person at
stake in this case?
o security of the person – serious state-imposed psychological stress; face
that govt will take away your children for a significant period of time does
this
o liberty interest – you’re dealing with significant individual choices in
one’s life (Blencoe); your relationship with your children falls into this
category and is protected by the liberty interest

Reasons:
o Seriousness of the interests at stake bc it’s a custody hearing; not only is
parent’s right to security of the person at stake, the child’s is as well; were
going to extend the order for 6 months – that is a long time
o The complexity of the proceedings: in order to respond adequately, mother
will probably want to cross-examine witnesses to test their credibility and
evidence but in order to do that effectively, you want to have a lawyer
who is trained to do that
o The capacities of the mother
o Everyone else had a lawyer
o Policy under the legal aid plan restricted right to counsel in this type of
hearing (not statute though)
 right to make full answer and defence is the impt principle of fundamental justice
 Lamer CJ says you won’t always get this right to counsel when s.7 interests are
engaged: “Whether it is necessary for the parent to be represented by counsel is
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directly proportional to the seriousness and complexity of the proceedings, and
inversely proportional to the capacities of the parent”
o So if you have a sophisticated parent, they may not have the right to statesponsored lawyer
Court may have been overstepping here – court looked further into cost argument
than govt argues and this should not occur
Disclosure at the Hearing Stage
 Problem: What happens if an administrative tribunal or decision-maker hears oral
evidence or receives documentary evidence in the absence of an interested party
(a party affected by the decision)?
 Kane v Board of Governors of UBC: The tribunal or decision-maker must
disclose the evidence to the interested party and give that party and opportunity to
respond
o After appeal hearing, Board of Governors adjourned and discussed the
matter further with the President. BOG should have disclosed that
discussion to Kane and given him an opportunity to make further
submissions.
 Problem: Can an administrative tribunal or decision-maker take “official notice”
of facts or analyses that are not formally introduced as evidence at a hearing?
 Problem: How can an interested party or a lawyer gain access to relevant
information that is not formally introduced at the hearing? What policy
considerations might offset an argument for disclosure?
 Do Baker analysis for what level of disclosure is required
 Remember that sometimes there are policy considerations which might weaken
the required disclosure
Re Napoli and Workers’ Compensation Board (1981 BCCA)
 N was advised disability award was only 5% of total disability; N appealed to
board of review and prior to hearing, WCB consultant provided N’s counsel with
4 page summary of info on N’s life; Board declined to disclose N’s medical
records on file (suggest psychologically unstable, potentially faking); N appealed
for leave to appeal Board decision to WCB review commission and was granted.
Napoli wants to be able to probe contents of the file but the Board won’t let him
and the Board wants the appeal dismissed.
 Decision: He received disclosure of the report. File summaries weren’t enough,
must disclose full reports.
 Process involved: File application, reviewed by officer, officer can compel
witnesses, examine under oath, and order the production of documents, then will
file a report
 What are the arguments for disclosure?
o Consider Baker factors (even though this was decided before Baker)
o Impact of the decision of the employee- cant work, affect his livelihood
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o Doesn’t seem to be much harm in disclosing it
o Nature of decision- formal with witnesses, evidence and impartial partieslooks very judicial
Arguments against disclosure
o Policy reasons for non-disclosure
 Want medical assessors to give frank and candid assessments
 Does this necessarily make the assessment more or less credible?
 Seems to suggest, more confidential = more honest
o Respect for an agency’s process (deference)- Baker
How does this case match up with Ontario Hospital?
o Serious allegations- importance of probing evidence
How does this relate to CIBA- Geigy?
o Keep info confidential to get candid advice from officials
o Slightly different from CIBA bc CIBA was at the early investigative stage
o CIBA-Geigy – had enough information for the case to meet but in Napoli,
he didn’t have enough information
#2 Charkaoui v Canada (Citizenship and Immigration) (2008 SCC)
 Charkaoui alleges that the govt breached its duty to disclose relevant info in its
possession, and its ancillary duty to do so in a timely manner. Records in the file
were systematically destroyed upon officers completing their reports. In response
to this, Charkaoui alleged that his right to procedural fairness had been violated.
Charkaoui is alleged terrorist being held in prison, wants out while admin body
figures out the law. Charkaoui wants the original notes and not just the report.
 Summaries can be cleaned up and edited whereas original notes are made in heat
of the moment
 Decision: Charkaoui entitled to full disclosure but since original notes destroyed,
then released on lack on evidence against him
 CSIS argues policy reasons for keeping the original notes confidential and
destroying them Confidentiality of state interests and public safety- valuable
and volatile information national security
 Do you think the facts of this case are analogous to a criminal prosecution so that
the Stinchcombe doctrine applies?
o Stinchcombe doctrine from a case; in criminal prosecutions, you’re
entitled to full disclosure (provide with all evidence that could possibly be
relevant to the case)
o Both have loss of liberty, other impt similarities
o BUT distinction bw criminal and administrative process
 Baker analysis: Impact on individual- he is being detained without charge
indefinitely; Nature of Decision: judicial realm ; Role of the decision in the
statutory scheme purpose of the statute
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (1989 FCA)
[Prison transfer case]
 Gallant in prison, warden tried to transfer him based on secret testimony from
informers- allegations of extortion and drugs
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Decision: Gallant did not get the name of the informants.
Gallant wanted disclosure of the names of the informants
Policy reasons not to disclose- jeopardizes the safety of the informants, and also
must protect informants in order to have more snitches in the future
Judge relies on Parliamentary intent/implied Parliamentary intent (but now we use
Baker!!!). We saw another case where statute was silent and then common law
applies (Cooper) and here judge uses legislative silence to indicate a limit of PF
Lewans says today, don’t hang it on parliamentary intent, use Baker analysis 
consider 5th Baker factor (deference) and impact on Gallant
Do you think there is any practical difference between (1) a prosecution of a
prison offence and (2) an administrative transfer between institutions insofar as
the duty to disclose is concerned?
o Yes. Nature of the interest affected is so different. Way more important in
prosecution of a prison offence.
Desjardins in Dissent: Accepts policy- need to protect informants but informants
can lie. Says prison officials cant rely on blanket policy of confidentiality. Must
have attempted to verify informant statements through independent means
*Says if decision is based on allegations, this is a de facto type of disciplinary
decision
Cross-Examination
 Some procedural rights are harder to get than others (eg. Baker failed to get right
to oral hearing)
 Credibility is a strong factor that encourages PF in form of cross-examination
Re B and Catholic Children’s Aid Society of Toronto (1987 ON Div Ct) [Individual
trying to get name removed from child abuse registry]
 Social worker interviewed 12 year old daughter of B’s girlfriend and during that
interview an allegation of sexual abuse was made. However, not enough evidence
to press charges but his name was put on the register. B applies to have his name
struck off the registry and there is a hearing that takes place. Evidence of the
social worker is led but problem with all this evidence is that it’s hearsay. Girl had
recanted so they decided not to press charges. B wanted to cross because the girl
had changed her story and had recanted.
 Policy reasons for limiting B’s right to cross-examine = concern for the alleged
victim because she is very young and want to protect her from this type of process
 How is the right to cross-examine treated under the Alberta Administrative
Procedures and Jurisdiction Act?
S.5 Cross-examination
 5. When an authority has informed a party of facts or allegations and that party (a)
is entitled under section 4 to contradict or explain them, but (b) will not have a
fair opportunity of doing so without cross-examination of the person making the
statements that constitute the facts or allegations, the authority shall afford the
party an opportunity of cross-examination in the presence of the authority or of a
person authorized to hear or take evidence for the authority.
o Is contextual so must apply to specific set of facts in your case
21
o In a case like this, credibility is a huge issue
o Think back to Singh – somebody should be allowed to cross-examine
where credibility is central to the case at hand
o **Look at this piece of legislation on TWEN** How would this case
have been decided with this piece of legislation? How would this
legislation have influenced the outcome?? (Think for Exam) Under this
Act, B would have been able to cross-examine the girl
Duty to Give Reasons
 S.7 of the Alberta Administrative Procedures and Jurisdiction Act: “When an
authority exercises a statutory power so as to adversely affect the rights of a party,
the authority shall furnish to each party a written stmt of its decision setting out
o (a) the findings of fact on which it based its decision, and
o (b) the reasons for the decision
 there is also the issue of a duty to give reasons at common (Baker)
Baker v Canada
 Establishes CL duty to give reasons only in particular circumstances
 In Baker, LHD doesn’t quash the decision because Lorenz failed to give reasons
but rather because the reasons he gave were insufficient the reasons were both
biased and substantively unreasonable
 *To determine if reasons are substantively reasonable, look at the reasons and try
to understand the administrative basis for the decision (what factors and what
evidence they were using) and then consider whether the decision was reasonable
o LHD looked at Immigration Act, International Treaties, and Ministerial
Guidelines to determine reasonableness (even if not a binding piece of law
or legislation, can still have legal significance in this analysis)
 Ratio: traditionally, the duty of fairness does not require that reasons be provided
for administrative decisions. However, there are certain circumstances where the
duty of PF will require reasons – where the decision has important significance,
there is as statutory right of appeal, or “in other circumstances. Such reasons must
meet the standard set out in Via Rail
 **Consider nature of interests affects (do full Baker analysis) and determine
if there is a duty to give reasons and also examine whether reasons given
were reasonable/sufficient (reasons should be detailed enough to show that
decision made was reasonable)
 Factors weighing FOR duty to give reasons:
o Transparency, right to appeal, treat ppl with respect, instrumental in
getting better outcomes
o It is a recognized constitutional right to seek judicial review of an
administrative decision – in order for those rights to be effective, you have
to have some idea of the basis for the decision
 Factors weighing AGAINST duty to give reasons:
o
Don’t want to put too much of an administrative burden on
administrative officials who have to decide so many cases a year
22
o
Costs, time consuming
The Content of the Duty to Give Reasons
Via Rail Canada Inc v National Transportation Agency (2001 FCA) [Attendants for
disabled people on trains and VIA’s equipment for disabled people]
 VIA rail didn’t have the proper means for accommodating the people. So NTA
charged with reviewing if VIA has proper equipment and personnel to
accommodate these types of passengers and if not then NTA can require VIA to
change its practices. Policy manual says a disabled person can bring one attendant
with them that doesn’t have to pay fare and “the attendant must be capable of
assisting the disabled person to get on and off trains and of attending to his
personal needs throughout the trip”. NTA concluded that Via Rail’s passenger
tariff imposed undue obstacles to disabled passengers.
 How detailed should the NTA’s decision be in order to satisfy the duty to give
reasons? What issue or issues must the Agency address in order to discharge its
duty of fairness?
o Should provide some elaboration on what you take those terms to mean
and state why you think policy manual is imposing an undue obstacle. If
you get this decision, do you understand why that decision was made?
Reasons should demonstrate that administrative decision-maker has heard
the party affected thoroughly explaining arriving at particular decision.
 Is burden on decision-maker too high? There are policy concerns but must do a
Baker analysis. Weigh impact on individual against policy concerns.
Reasonable Apprehension of Bias
 Common law doctrine of natural justice had two basic elements:
o Audi alternam partem: “No one should be condemned unheard”
 Right to notice, right to know the case against you, right to be
heard, right to be represented, right to cross-examine, etc
o Nemo judex in causa propria sua debet esse: “No one ought to be a judge
in his or her own cause?
 Decision-makers should be impartial, approach the issues with an open mind,
should not have an interest in the outcome, etc
 The apprehension of bias must be a reasonable one, TEST is “what would an
informed person viewing the matter realistically and practically – and having
thought the matter through – conclude.”
 The test is objective, in the sense that it does not require a party to prove the
decision-maker’s actual state of mind
 One of the most common responses to an allegation of bias by reason of prior
involvement is that of statutory authorization
Brosseau v Alberta (Securities Commission) (1989 SCC) [Chairman involved at
investigative and hearing stage in deciding whether to revoke license]
 Chairman of ASC says they are going to have a hearing as to whether or not to
revoke license wrt Brosseau’s conduct. B brings application for RAB because the
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Chairman has already had involvement in the investigative process and through
that process has already made up his mind (if he wants panel to hear the case, he
obviously thinks there is something here to adjudicate) so B says chairman is not
coming at this with an open mind when he is sitting on the panel of the hearing.
Decision: Overlapping of functions is ok because it is authorized by statute (even
though judge here use implied statutory authorization)
As long
as the statute authorizes overlapping functions bw investigation and adjudication,
then it is permissible practice
Statute overrides RAB but only way to really challenge this appears to be using a
Charter argument …or going to Baker about a very important interest being
affected
Time, cost, public resources were contextual factors that affect Court’s decision
Interest here is economic and economic rights not protected by Charter
EA Manning Ltd v Ontario Securities Commission (1995 ONCA)
 OSC was trying to crack down on companies marketing penny stocks. Was a
policy directive to target these companies and fine them heavily. OSC issues a
notice of hearing to EA Manning. EA argues that the hearing is subject to RAB
because regulator has conducted its own investigation concluded you’re guilty
and now proceeds to hearing.
 Decision: Both courts (div ct and COA) found in favour of EA Manning because
policy directive was acting outside of statutory authority. But COA did not find a
RAB – not enough proof to show RAB.

There
were press conferences in Manning where they said they were going to get these
guys but there was nothing like that in Brosseau (evidence of pre-judging because
they made these policy statements before hearing)

Consider
whether the statutory framework, to what extent it authorizes this type of activity
o
Brosseau
: statutorily delegated authority to have overlapping functions
o
Manning
: policy directive without the requisite statutory authority for doing so
Paine v. U of T [Application for Tenure]

There is
a colleague who has made it clear that he opposes my application for tenure, and
when the committee is struck to determine whether I get tenure, he has been
appointed to committee even though his decision has already been made.
Complaint is prior involvement/bias

No
statutory authorization for overlapping functions but sanctioned by university
review process

Baker is
a contextual framework to determine the degree of fairness that is owed.
24
o
What is
the nature of the decision?

Administ
rative?

Legislati
ve/policy v. adjudicative and individual

CA says
there is a policy element as well (whether his award
justifies tenure)
o
Nature
of Interest Affected Impact of individual – employment- but he does
already have a job, it’s just whether or not he gets tenure. On the other
side, its pretty significant
o
Deferenc
e for university practice/policy
Pecuniary Interest (monetary interest)

CLpreviously automatically disqualified the DM

Cannot
be in a cause in which you are a party (have an interest)

Now
there is a de minimis exception
Energy Probe v. Canada [Supply contract and contingent financial interest]
 Guy on Board claiming pecuniary interest bc his company supplied cables to
power plant company previously but no contract currently. Power plant needs
license. Issue: whether his interest was a direct or indirect financial interest.
Court said too indirect for RAB because no guarantee he would get these future
contracts just because he had in the past.
 Direct/indirect should probably not be given such a strict interpretation and RAB
analysis should be contextual
 Court suggests in Energy Probe that the threshold to show a disqualifying
pecuniary interest is going to be a demanding one…so have to pay attn to how
you’re going to construct your argument on the facts for showing a pecuniary
interest
St Old Boniface: Must prove that S had a closed mind that he wouldn’t have changed no
matter what. As long as can show open mind or open to persuasion, can protect against
RAB. very high threshold to show RAB
 Note in this case: this regards a politician – maybe why test is so high
Save Richmond Farmland: board member only needs a bit of open mind (super hard to
show RAB) very high threshold to show RAB
 Note in this case: this regards a politician – maybe why test is so high
Nfld v Nfld
 SCC massages the RAB test:
25
o
Before
the Hearing Closed Mind Test applies (investigative stage) – wide licence
to make public comment

Closed
Mind TEST: Prior to the hearing, as long as statements do not
indicate a mind so closed that any submissions would be futile,
they should not be subject to attack on the basis of bias

They are
implementing legislative policy and they can have opinions on that
policy
o
During
the Hearing role changes (adjudicative stage), and a higher standard applies
to show no RAB (easier to show RAB)

Traditio
nal bias assessment no RAB: Would a reasonable observer think
he had already made up his mind?
 Limit the open mind test to the investigative stage but it changes a bit during the
hearing!!!
Pelletier v. Canada
 Threshold is low- RAB
 Shouldn’t say anything until all evidence is in
 Context of a public inquiry:
o
TEST:
what would an informed person, viewing the matter realistically and
practically--and having thought the matter through – conclude? 
RAB (test has been met here)

**Consi
der nature of the decision – this seems to be very adjudicative whereas Bonafice is
more legislative…seems to be a bit of a difference. Consider for EXAM
**All these cases- transition from open mind test only (Bonafice) to Pelletier- if you’re
the head of a public inquiry you shouldn’t say anything until all the evidence is in.
 As long as decision-makers are still amenable to persuasion, courts will be very
reluctant to find RAB in that context
 Threshold for establishing RAB is very high
 Basically have to show that person going into these hearings would never change
their mind
 Can also use Baker analysis for why courts demand greater degree of fairness in
inquiries vs. the degree they demand for municipal councilors
Institutional consultations
 This term refers to a situation in which an administrative decision-maker how is
seized with a case consults with his or her peers in an administrative agency to
discuss the policy implications of the case at hand
 Fairness problem #1: institutional consultation allows ppl who have not heard the
parties’ can nevertheless influence the outcome (audi alteram partem problem)
26







Fairness problem #2: institutional consultation facilitates deliberations which may
extend beyond the evidence or legal issues addressed at the hearing (audi alteram
partem problem)
Fairness problem #3: institutional consultation raises a concern that ppl who have
not heard the parties’ can undermine the impartiality of the person or persons who
are seized with the matter (nemo judex problem)
There are benefits but also risks
Concern that if ICs aren’t voluntary on part of party hearing a matter they may
feel coerced or compelled to change their view
Concern that members of adjudicative panel might have their views or opinions of
evidence swayed if questions of fact are being discussed in these consultations
these types of discussions are inappropriate
Not a bright line rule – need to balance everything …depends on the facts and
how they play out from this principled point of view do the facts raise concern
about the fairness of the process such that the Court should intervene
How do you go about fact finding in terms of discovering this deliberative
process? (Tremblay – deliberative secrecy) seem to suggest that you can
compel admin officials to testify about the deliberative process but can’t compel
them to testify about what actually happened or what was discussed behind closed
doors
International Woodworkers of America, Local 2-69 v Consolidated-Bathurst
Packaging Ltd (1990 SCC)
 Employer went into collective bargaining with the Union. The Union brings an
application to the OLRB that closing plant was unfair/unlawful bargaining
practice. The OLRB has an informal meeting, where panel members hear the facts
and evidence from the Union, and then have a general meeting of the OLRB – no
facts were discussed, no notes were kept and no vote was taken. This was an
informal meeting to discuss the policy issue, in order to encourage coherence. In
concluding, the Chairman wished the decision-makers luck in resolving the issue.
 Decision: This was found to be acceptable because (a) it did no harm left the
decision in the hands of the decision-makers, and (b) it was useful for ensuring
the functioning of the institution.
 Consultation process starts when chairman requests a meeting of the Board and
purpose was to frame the policy issue for the other board members and then
discuss issue as a board. Panel seized with the matter ultimately has the final say
(no minutes taken, no votes at the meeting) purpose of meeting is to enable
panel to consult with other members but the purpose of the meeting is NOT to
determine the outcome.
 Sopinka (Dissent) Believed consultation process was unfair because of lack of
transparency, no minutes, no record about what happened in the meeting (we
don’t know whether or not panel changed its decision as a result of that meeting)
o Violates principle of natural justice: 1.Members who were not at hearing
participated in decision 2. Cases decided in part on basis of materials not
disclosed at the hearing – no opportunity to makes submissions
27


Gonthier (Majority) says you can develop a consistent approach on a matter of
general public policy; Can rely on your peers to reach coherent and consistent
decision; must consider heavy caseload of tribunals
Gonthier satisfied that IC was procedurally fair in this case because: satisfied that
the panel wasn’t unduly influenced by the board (no votes, no requirement of
consensus, not looking at facts, just looking at policy, participation of board was
voluntary, panel made final decision)
Tremblay v Quebec (Commission des affaires sociales) (1992 SCC) [bandage
reimbursement case]
 Mrs. Tremblay was receiving social insurance payments. She applied for
reimbursement for money for bandages – if they are “medical equipment” she
gets reimbursed, and if not, then she won’t. Originally her decision was dismissed
by a low level official and she appealed it to the Commission. The Panel consisted
of two members at first instance, who found in favour of Tremblay, but the
decision must be vetted by legal counsel according to statute/policy (who was on
vacation) so the President of the Commission (who is incidentally a provincial
court judge) reviews the draft decision and thinks it’s a problem. He holds a
meeting, where a majority of the members of the commission supported the
Presidents view, and shortly after that meeting, the decision is changed by one
panel member against Mrs. Tremblay (split-decision). It then goes back to
President, who was obviously going to decide against Mrs. Tremblay and did.
“Institutional consultation” is not illegal, but it is not in accordance with PF here.
 Decision: Court concludes in this case that it was a violation of PF – it didn’t
adhere to the principles set out in Consolidated-Bathurst
 Similarities to Consolidated-Bathurst: case concerns problem of institutional
consultation (round table discussion of all members of an administrative agency)
 Dissimilarities: clear evidence that one member of the adjudicative panel flipped,
president of commission actually initiated process of consultation – disagreed
with panel’s initial draft and calls meeting of whole commission and in the end
(meeting was not voluntary), he casts the deciding vote president was never
part of the panel that heard evidence and legal arguments of the parties though but
he made the decision
 To what extent do you think administrative agencies should be compelled by law
to disclose their deliberative processes? Do you agree with Gonthier J.’s statement
that “administrative tribunals cannot rely on deliberative secrecy to the same
extent as judicial tribunals”?
o After Baker, you have a duty to give reasons (can be discharged
informally or formally)
o I think that judicial tribunals should probably have to disclose more –
based on nature of decision and nature of interest affected
o Lewans suggests this is still a hot issue in field of litigation of admin law
but he leaves this question with us
Ellis-Don Ltd v Ontario (Labour Relations Board) (2001 SCC)
 Grievance before the labour relations board. After parties give their submissions,
Ellis-Don gets letter from tipster (leak) that after its submissions, it was going to
28




win but after the Board meeting, the panel changed its mind. The draft decision
would have favoured Ellis-Don.
Deliberative secrecy: Ellis-Don wants to start questioning ppl from the Board
about what happened here
Ellis Don sought to strengthen its case by obtaining evidence of what had
happened during the consultation process. Court rejects application largely based
on commentary from Tremblay (admin tribunal vs. judicial tribunal) – still a
degree of deliberative secrecy that needs to be maintained here. There is not
enough of an issue to compel full disclosure here.
Decision: SCC says not enough facts to conclude RAB. Not enough facts to say
what occurred bw draft and final decision to say its RAB and unfair
Dissent: the very appearance of the process and fact there was a change in opinion
bw meetings raises significant concerns
Institutional Consultations with Legal Counsel
 When do intra-institutional consultations bw agency officials and legal counsel
infringe upon a party’s right to PF?
 Nearly all administrative agencies have some professional staff, including a
secretary
 Lawyer or staff involved in investigations and prosecutions should not also be
engaged in assisting those who adjudicate, particularly in the instance of files with
which they have had some prior involvement
Khan v College of Physicians and Surgeons of Ontario (1992 ONCA) [Doctor found
guilty of profession misconduct]
 Khan found guilty of professional misconduct. He claims that the discipline
committee of the college breach the duty of PF by permitting its counsel to play
so significant a role in the preparation of its reasons for decision as to create a
RAB. At some point, a lawyer who is independent of the Committee gives the
panel some advice. Counsel for Khan requested the drafts but the committee
declined to produce them.
 Decision from COA: No legitimate concerns as to the fairness of the proceedings
arise form counsel’s very limited involvement in the reason-writing process. The
independence and impartiality of the agency board was not compromised.
 Ratio: (from Tremblay) A consultation process by plenary meeting designed to
promote adjudicative coherence may thus prove acceptable and even desirable for
a body like the Commission, provided this process does not involve an
interference with the freedom of decision-makers to decide according to their
consciences and opinions. The process must also, even if it does not interfere with
the actual freedom of the decision-makers, not be designed so as to create an
appearance of bias or lack of independence.
 If advice is not legal advice, then it appears there is a bit more flexibility. So,
make it open-ended advice; might put in your letter that you are not providing
legal advice and that admin body has final say at end of day wrt findings of fact
and conclusions based on evidence
29


Statute only applied to the hearing stage of the process based on interpreting the
surrounding provisions in light of that section
ONCA applies test to determine whether agency’s resort to advice from legal
counsel was unfair: doesn’t have a single test but looks at a list of factors
o A committee member prepared the first draft of the reasons
o Counsel, with the chairman of the committee, revised and clarified the
first draft but did not write independently of that draft
o The committee met to consider and revise the draft as amended by counsel
and the chairman; counsel played no role in this review and revision
o The final product which emerged from the drafting process was signed by
each member of the committee
Bovbel v Canada (Minister of Employment and Immigration) (1994 FCA)
 Conventional refugee application. A hearing is held to determine if they should
get status. Applicant is unsuccessful and applies for judicial review saying that the
deliberative process was not procedurally fair. The Board had referred a draft of
its written decision to legal counsel who was not a member of the Board and who
had not participated in or attended at the applicant’s hearing.
 Decision: COA disagreed and said it was fair policy was unfair but not proper
evidence to show that lawyer actually followed the policy
 Policy talks about consultations with lawyers…policy uses the word “may” and
not “must” which suggest that panel members have a choice voluntary. So
policy appears to be permissive but must also look at how it is implemented – e.g.
if ppl are being disciplined for not following the policy, then it is actually not
permissive in execution
 A fair reading of the documents on record shows that the legal advisors were not
expected to discuss the findings of facts made by the members but merely, if there
was a factual inconsistency in the reasons to look at the file in order to determine,
if possible, how the inconsistency could be resolved
 Any policy is susceptible to abuse…just because its possible doesn’t mean you’ll
succeed in judicial review
Adminstrative Guidelines
 Problem: to what extend can administrative agencies establish “soft law” – policy
statements, guidelines, manuals, or handbooks – and utilize those sources of law
in the context of a hearing?
Thamotharem v Canada (Minister of Citizenship and Immigration) (2008 FCA)
 Chairman of refugee board releases guideline on hearing process. Changes
process because they want to streamline it. Up to that point, it was similar to trial.
Instead of having the claimant get on stand and be led through testimony by their
lawyer, we want them to be led through testimony by a panel member.
 Benefits: on one hand you’re making admin process more consistent, more
efficient by streamlining the hearing process, expertise
 Drawbacks: but also concern with whether those administrative guidelines are
fettering the discretion of the panel member – reducing the ability of the panel
30



member to decide what they think is fair under the circumstances – fettering
fairness, right to appear before an impartial administrator/adjudicator/right to
bring your own case
Decision: complainant’s fail because policy is both permissive in wording and in
implementation
Look for how the policy is written – what language is being used…whether the
language is mandatory and admits of no exceptions or whether its permissive and
gives the panel some room to maneuver
Look at situations of non-compliance – how policy is actually implemented in the
agency if policy is permissive on its face you want to make sure it is also
permissive on how its being implemented
Substantive Review

Substanti
ve review is a check and balance – ensures that you have an independent process
to ensure that the decisions are legally defensible

Purpose
is to uphold the rule of law
 (1) Substantive review (substance) is distinguishable from the review of the
administrative decision-making process (process)
 In SR, you’re looking at the reasons for an administrative decision and asking
things like is it logical, coherent, and consistent with existing law?
 (2) Instead of focusing on whether the decision-making process was fair (notice,
hearing, disclosure, etc), substantive review focuses on whether the substance of
an administrative decision is reasonable
 (3) The line between process and substance can be blurry at times. There is a
procedural duty to give reasons (Baker and Administrative Procedures and
Jurisdiction Act), but those reasons are also the focal point for substantive review
 Pre-1979: substantive review was governed by the doctrine of “jurisdictional
error”
o This was never defined; doctrine assumes judges have monopoly on what
the law requires
CUPE v New Brunswick Liquor, [1979] 2 SCR 227
 Undercuts judges monopoly on the law
 Sets some guidelines:
 (1) in cases where the meaning of the statute is ambiguous or unclear,
administrative officials have a legitimate role in determining the proper
interpretation of the statute
 (2) judges “should not be alert to brand as jurisdictional and therefore, subject to
broader curial review, that which may be doubtfully so”
o roll back idea of jurisdictional review…tell judges not to rely on that
concept too often
 (3) judges should consider different reasons for deferring to administrative
interpretations of law:
31

o (a) the legislature has designated the administrative official to be the
primary decision-maker
o (b) administrative officials have relevant expertise and experience
interpreting and applying certain statutes, which judges do not possess
(4) judges can only overturn an administrative decision where the decision is “so
patently unreasonable that its construction cannot be rationally supported by the
relevant legislation and demands intervention by the court”
o very very high threshold
Pushpanathan v Canada, [1998] 1 SCR 982
 3 standards of review here
 same 4 factors that we see in Dunsmuir
o How to determine the proper standard of review:
 (1) Privative clause?
 Statutory provision which restricts judicial review – e.g.
decisions of the board are final and not subject to appeal
 (2) Expertise of the Administrative Body Relative to the
Reviewing Court on the Issue in Question?
 (3) Purpose of the statute, and the particular provision?
 Policy leans towards more deference (reasonableness)
 (4) Nature of the Question (law, fact or mixed fact and law)?
Dunsmuir v New Brunswick (2008 SCC) [Lawyer fired from QB in NB]
 Dunsmuir worked for Court of Queen’s Bench in New Brunswick (public
employee). People complained about way he was doing his job. He was fired and
there was no official reason given. Adjudicator decides that he is entitled to
inquire into the real reasons why Dunsmuir was fired and concludes that
Dunsmuir was terminated not for disciplinary reasons but more general reasons of
performance and suitability for the position and holds further that the law and PF
entitles Dunsmuir to a hearing before he was terminated. His position has
statutory flavour to it such that he was entitled to notice and a hearing (based on
Knight and…)

After Dunsmuir, there are 2
standards of review: correctness and reasonableness

Look for
precedent (past decisions) as to what has been the court’s practice for its standard
of review analysis so you don’t’ always have to go through the Pushpanathan
factors

If past
decisions don’t settle that question, then you have to go through the Pushpanathan
factors

Correctn
ess (less deference): division of powers (Constitutional questions), questions of
law with importance to legal system

Reasona
bleness (more deference): if tribunal has great deal of expertise
32

SCC decided that the std of
review was reasonableness. Why?
o
(a)
adjudicator’s decision was protected by a privative clause (increased
deference);
o
(b) the
purpose of the tribunal and enabling legislation is to provide efficient
method of resolving labour disputes (increased deference);
o
(c) the
nature of the legal question is not of central importance to the legal system
or otherwise outside the scope of the adjudicator’s expertise (increased
deference); and
o
(d)
labour adjudicators have relevant expertise in interpreting collective
agreements and interpreting enabling legislation (increased deference)
Privative Clauses and Statutory Rights of Appeal
 Privative clause: “the decision and finding of the board under this Act upon all
questions of fact and law are final and conclusive…”
 Statutory right of appeal: “any party to the proceedings before the board under
this act may appeal…”
Expertise and Statutory Purpose
 Expertise of administrative decision-maker as measured by the court in light of
relevant statutory provisions and relative to the court’s understanding of its own
expertise
 Consideration of the purpose of a decision-maker as determined by its enabling
legislation
Pezim v British Columbia (Superintendent of Brokers) (1994 SCC) [BOD of company
penalized for failing to meet disclosure requirements of material change]

Mining company in BC has
staked claims in variety of areas in BC where its looking for precious minerals.
Company finds what they’re looking for. Before this info is made public, BOD
authorizes issuance of shares to a bunch of corporate officers. Securities
Commission prosecutes BOD under BC Securities Act for not meeting their
disclosure requirements. Question turns on whether there was a material change in
the company’s business assets or operations that required them to disclose this
information.
 Decision: SCC applies standard of reasonableness even though there is a statutory
right of appeal. SCC calls it a highly specialized tribunal – specializes in
regulating the trading of securities. More hands-on experience in understanding
how different policies will be implemented in practice by participants in the
market – expertise of Securities Commission.
 Apply Dunsmuir factors to facts of Pezim and determine if Iacobucci J. got it
right what are the most impt factors in applying the framework on the facts here
33


o Presence or absence of a privative clause no privative clause; yes there
is a statutory right of appeal (less deference)
o Purpose of the tribunal and enabling legislation (more deference)
o Nature of the question – mixed fact and law (more deference)
o Expertise of the tribunal (more deference)
Purpose of act = establish policy of fair trading of securities. Where a tribunal
plays a role in policy development, a higher degree of judicial deference is
warranted wrt its interpretation of the law
Questions of Law At Issue it’s necessary to focus on the specific question of
law at issue to determine whether it falls within the tribunal’s expertise and
whether deference is warranted  question of law means less deference and goes
towards correctness
o Determination of what information should be disclosed is an issue which
goes to the heart of the regulatory expertise and mandate of the
Commission – same for the meaning of “as soon as practicable”
Canada (Director of Investigation and Research) v Southam Inc (1997 SCC)
[Whether purchase was likely to lessen newspaper competition substantially]

S owns Vancouver Sun, The
Province and decided to purchase Real Estate Weekly and The North Shore News
(had a large real estate advertising section). A concern was raised with the
Competition Tribunal – if you were a realtor wanting to advertise houses, you
would likely be dealing with one of the 4 publications owned by S. Tribunal said
that this would result in less competition in the real estate market and ordered S to
divest itself of Real Estate Weekly or the North Shore News. Appealed. Relevant
issue: cross-elasticity of demand. Problem tribunal dealt with was whether it was
likely to lessen competition substantially.
 This question is one of mixed law and fact because you are applying a legal
standard/test to facts not just about what the legal test is but whether the legal
test is satisfied on the facts of this case
 Decision: Std of review is reasonableness. Court goes on to discuss in great length
the purpose of the statute and the tribunal’s expertise (similar Pezim) - says
expertise is the most impt factor to consider when trying to pick the appropriate
std of review.
 Purpose of the Act = preserving competition in a variety of things including print
publishing competition is good for consumers…wrt dissemination of
knowledge and current events, this is especially impt. Seems policy-like.
 Tribunal must engage in very complex analysis what economic impact is of
these newspapers.
 Dunsmuir Analysis:
o Presence or absence of a privative clause no privative clause; yes there
is a statutory right of appeal (less deference)
o Purpose of the tribunal and enabling legislation prevent monopolies and
encourage competition – policies (more deference)
o Nature of the question mixed fact and law (more deference)
34
o Expertise of the tribunal – experiential expertise…this one is a bit
debatable (more deference)
The Nature of the Question
 After CUPE, the SCC attempts to articulate a new “pragmatic and functional
approach” to judicial review, which emphasizes judicial respect or “deference”
towards administrative decisions
o The legislature has delegated legal responsibility to an administrative
official for this issue; and
o Administrative officials have expertise which is relevant to interpreting
and implementing legislative policies
 the nature of the problem (ie. Is it a question of law, fact or mixed law and fact) is
also relevant to the std of review analysis
 Dunsmuir: Certain issues which are likely to be assessed on a correctness
standard:
o (1) constitutional questions regarding division of powers bw Parliament
and provinces;
o (2) “true” questions of jurisdiction or vires;
 this is a short-cut if you can characterize the matter as
jurisdictional but Lewans says its also a crap shoot
o (3) “general” questions of law which are of “central importance to the
legal system as a whole”; and
o (4) questions regarding the jurisdictional lines between two or more
competing specialized tribunals
 Dunsmuir: Issues which are likely to be assess on a reasonableness standard:
o (1) questions of fact;
o (2) questions of law arising from interpretation of the enabling legislation;
o (3) questions involving the exercise of administrative discretion;
o (4) public policy;
o (5) mixed questions of law and fact
 Pre-Dunsmuir: expertise was most impt factor
 Dunsmuir: shifted focus to the nature of the question by emphasizing that a
determination of the nature of the question may create a strong presumption in
favour of deference, such that it may be unncesssary to examine other factors in
detail
Dr Q v College of Physicians and Surgeons of British Columbia (2003 SCC)
[Improper relationship with patient – case hinges on credibility]
 College Committee found Dr Q had improper sexual relationship with patient.
Council of the College suspended doctor from practice of medicine for 18 months
with stringent conditions for his return. S.73 of the Medical Practitioners Act
affords an appeal to the courts “on the merits” of the case. Decision was largely
based on credibility.
 Questions of Fact: did a relationship take place, to what extent, credibility,
reputation
 Questions of Law: What is the proper standard of proof – was there clear and
cogent evidence of physician misconduct?, Jurisdiction.
35



Decision: Instead of looking at how the College assessed this question, the COA
judge just read the transcript as if they were hearing the evidence first hand
SCC said this was a reviewable error of law. COA judge said correctness. SCC
said it is not appropriate to use correctness for credibility
On questions of fact, COA judge isn’t well-situated to make these kinds of factfindings, particularly wrt credibility/where credibility is a central issue
credibility is a major factor dictating that reasonableness is the proper standard
A judge should assess a finding of fact by looking at whether there is a reasonable
conclusion for the decision is decision properly ground in the evidence
Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998 SCC) [P
was guilty of acts contrary to purposes/principles of UN so was deported]
 P later arrested and charged with conspiracy for trafficking; when P was on
parole, he renewed his claim for refugee status; Employment and Immigration
Canada issued a conditional deportation order against him (conditional upon
determining not a Refugee); Refugee Board decided P was not a refugee by virtue
of an exclusion clause which provides that the provision of the Convention do not
apply to “a person guilty of acts contrary to the purposes and principles of the
UN”
 Decision: SCC says this should be reviewed on a correctness standard

Definitio
n of something that can exclude you from refugee statute Question of law bc
interpreting the UN Convention BUT..

If
its
interpreting your home statute on a question of law, then deference is owed
Reasonableness (think about definition of “material change” in home statute of
Securities Act) BUT since this definition is not in their home statute but is an
international statute, then less deference is owed and it is correctness (as is the
case here)

Central
importance to legal system and Constitutional question; pure questions of
jurisdiction correctness

Dunsmu
ir Application:
o
(1)
Legislative Intent on Deference

No
strong privative clause (superseded w/respect to questions of
“general importance”)
o
(2)
Expertise

Board
has no relative expertise in the matter of law question is w/in
expertise of the courts, NOT the ADM
36

Only
10% of the Board members are lawyers  any given panel
may have no lawyers at all.

Deferenc
e should not be shown to human rights tribunals regarding general
questions of law
o
(3)
Purpose of the act as a whole, and the provision in particular

Not a
polycentric question  legal principle easily separable from the
facts (not context-specific)
o
(4)
Nature of the problem: fact, law or mixed fact and law

“Serious
question of general importance” this is how it got to the courts
(justifies an appeal)

Wide
precedential valued, broad future application (to future cases) 
warrants review (less deference)
Canada (Citizenship and Immigration) v Khosa (2009 SCC) [Non-citizen commits
crime and gets deported]
 Comes to Canada at 14. Commits crime at 20, and is subject to a removal order
from Canada b/c he was not a citizen (just a permanent resident) at the time he
committed the crime. He seeks H & C relief of that removal order. The
Immigration Appeal Division of the Immigration and Refugee Board did not
accept that there were sufficient H & C considerations to warrant special relief
against the removal order in light of all the circumstances of the case. Minister
argues that s.18.1 of Federal Courts Act establishes a legislative SOR that
displaces the common law.
 Decision involves whether or not to allow Khosa to remain in Canada on
humanitarian and compassionate grounds. Nature of the Question Mixed law
and fact (whether test for humanitarian and compassionate grounds is met on the
facts) leans towards reasonableness. More within their core
competencies…Board has been delegated specific authority over this type of
question and deal with it often (not delegated to the courts)
 SCC makes a big deal out of fact this is a discretionary decision as well Board
is given very broad discretion favours more deference
 Read Baker again – for the purpose of how the court goes about assessing
reasonableness – Implied Analytical Framework for Assessing Reasonableness
o Court starts with what was the decision? Look at the Board/Tribunal’s
decision
o Ask whether reasons given are consistent with the relevant law that bears
on this question
o If fundamentally inconsistent with purpose of statute, ministerial
guidelines, international law, etc…might not meet threshold of higher std
37
of review (law, soft law, other things that aren’t law here but provide
guidance)
o Whether reasons given are commensurate with the interests affected
where the decisions have a great impact on individuals, we usually
expect better reasons
Administrative Jurisdiction and the Charter
 Issue #1: Do administrative decision-makers have the legal authority to determine
whether their enabling legislation infringes Charter rights?
o Traditionally, decision-makers only have what is granted to them in statute
o If we think they do have this authority, then they also have the authority to
decline to enforce this provision that is contrary to the Charter so
getting away from idea that administrative authority comes exclusively
from the statute….to now asking whether admin officials can legitimately
refuse the statute of their enabling legislation
 Issue #2: Can administrative decision-makers refuse to apply their enabling
legislation on the ground that it infringes Charter rights?
 S.52(1): “The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect” Cooper, Nova Scotia v Martin, Laseur
 S.24(1) Charter: “Anyone whose rights or freedoms, as guaranteed by this
Charter, have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just in
the circumstances” Conway deals with this
Do Administrative Decision-Makers have the legal authority to determine whether
their enabling legislation infringes Charter rights?
Cooper v Canada (Human Rights Commission) (1996 SCC)
 Airline pilots being forced to retire at age 60 brought complaint to human rights
commission saying it was discriminatory treatment because other employees of
the same airlines weren’t required to retire until the age of 65. Problem: under
Cdn human rights act at the time, it said that requiring ppl to retire at normal age
of retirement in the industry would not constitute discrimination within the
meaning of the act.
 Lamer CJ: Traditional Approach (only express authority)
o the power of reviewing legislation for Charter compliance should be
reserved exclusively for the judiciary, and one should not assume that
administrative officials have this authority unless they have been explicitly
empowered by legislation
 LaForest J.: (express or implied authority)
o the primary consideration remains whether the legislature intended to give
this power to administrative officials
o administrative agencies only have authority to engage in Charter review of
enabling legislation if the legislature has given them express or implied
power to determine questions of law;
38
o in order toe determine whether an administrative agency has implied
authority to engage in Charter review, one should consider:
 (a) the composition and structure of the tribunal
 (b) the procedure before the tribunal
 is it adjudicative in its nature; do parties have ability to
sound out arguments before the board? If it lacks
adversarial process and oral hearing process, then that is
not the best way to engage in charter infringement analysis
 (c) the appeal route, if any, from tribunal decisions, and
 (d) the expertise of the tribunal
 McLachlin J. (Dissenting): (broadest interpretation)
o every administrative tribunal which has the duty to decide questions of
law has the concomitant power to review enabling legislation for Charter
compliance UNLESS the legislature expressly withholds that power;
o “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.”
Nova Scotia (Workers’ Compensation Board) v Martin; v Laseur (2003 SCC)
 Case concerning whether WCB in NS has the power to review its own enabling
legislative provisions to determine whether those provisions are Chartercompliant. The problem is both plaintiffs suffer from chronic pain syndrome but
the science regarding this syndrome is unsettled and many people doubt these
claims.
 Buys into McLachlin’s dissent in Cooper
 By virtue of s.52, courts may not apply invalid laws and this applies to every level
of govt including administrative tribunals of the state
 Statutory mandate of tribunal, whether tribunal is adjudicative in nature,
contextual analysis to determine whether or not admin tribunal has implied
authority to engage in Charter review
 This authority to apply the Charter can be rebutted – then question becomes
whether its been adequately rebutted on the facts does statute expressly
withhold ability to apply the Charter or based on interpretation of legislative
scheme as a whole, did legislature intend to withhold this authority
 Adv: Cost and efficiency of allowing tribunals to engage in Charter analysis;
access to justice – every person should be able to access the Charter
 Disadv: Danger is people on tribunal may not be legally trained
 If authority is grounded in the Constitution, it doesn’t make sense for legislature
to override the Charter by saying tribunal can’t decide a Charter question
(Parliamentary sovereignty shouldn’t override application of the Charter)
 1. Look to statute to see whether administrative tribunal has been expressly
or impliedly granted to decide questions of law. If so, then there is a
presumption that the tribunal can hear Charter arguments.
 2. Has it been rebutted? presumption can 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
39
Can Administrative Decision-Makers Grant Charter Remedies?
R v Conway (2010 SCC) [Liberalizes availability of Charter remedies]
 Concerns long-term inmate in a mental health institution. Found NCRMD for a
sexual assault. Conway brings his own Charter application saying his continued
detention in this facility violates his Charter rights. His life, liberty and security of
the person had been deprived without due process of law. S.24(1) of the Charter
states: anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances
 Decision: Not released because Criminal Code said you couldn’t if they were
dangerous. This is an Express Rebuttal of authority – statute limits the remedy wrt
dangerous people. ON Review Board does not have discretion to override what
the criminal code says.
 **1. Whether the administrative tribunal has jurisdiction, explicit or implied, to
decide questions of law
 **2. If it does, and unless it is clearly demonstrated that the legislature intended to
exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of
competent jurisdiction and can consider and apply the Charter – and Charter
remedies – when resolving the matters properly before it
 Martin/Laseur framework is the relevant test for determining whether an
administrative agency has the power to grant constitutional remedies
 No additional powers under s.24(1) jurisdiction of s.24(1) doesn’t grant you
extra powers, only the statute will do that if statute grants additional powers (so in
this case, ADM was constrained by provisions of the Criminal Code)
Dore v Barreau du Quebec (March 2012)
 Law society of Quebec disciplines lawyer for sending an inappropriately worded
letter to a judge of Superior Court of Quebec
 Lawyer alleges that the penalty (21 day suspension) infringes his Charter right to
freedom of speech under s.2(b)
 Question = what is the proper std of review when a discretionary admin decision
involves analysis of Charter values?
 Answer = Reasonableness (!!!) instead of the traditional Oakes proportionality
test – although the same basic considerations (statutory objectives, balance, and
proportionality) inform both standards of review
 While the std of review regarding decisions concerning the constitutionality of
legislation is correctness (Dunsmuir), the std of review for discretionary admin
decisions which involve Charter values is reasonableness
 Std of review of compatibility with Charter is correctness
Remedies
 Assuming that there are cogent procedural or substantive grounds for challenging
an administrative decision, how should those defects be remedied?
o 1. Request a reconsideration of the case;
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




o 2. Lobbying for legislative change or legitimate executive intervention;
o 3. Refer the matter to an independent ombudsman; (independent of govt –
role is to investigate allegations of govt wrongdoing or malfeasance and
make recommendations on how to remedy the matter)
o 4. Statutory right of appeal to appellate tribunal or court; (remember that
court has some downsides – costs)
o 5. Application for judicial review
Issues to keep in mind when advising your client:
o Some methods of challenging an administrative decision are more
expensive than others
o Consider which appellate tribunal or court has jurisdiction over the case
and what the legal grounds of your appeal/application for judicial review
are;
o Even if you succeed, an award of court costs is rare (unless you can show
opponent was acting inappropriate or stonewalling)
o The usual remedy for most defects is to quash the decision and remit it
back to the original decision-maker for another determination
 Might come up with same decision acting conducting a fair hearing
o If your client appears before an administrative tribunal frequently, you
might also have to weigh other political factors regarding the continuing
relationship with that agency
Historical Review: Superior court judges have access to ancient common law
remedies which used to be known as “prerogative relief” or “prerogative writs”:
o (1) Certiorari = remedy used to quash, nullify, or set aside an
administrative decision
o (2) Prohibition = remedy used to order a tribunal not to proceed with a
matter
o (3) Mandamus = remedy used to compel an administrative official to
perform a public duty
o (4) Habeas corpus = a remedy used to compel an administrative official to
justify a person’s detention or imprisonment
Problem = the common law relating to prerogative relief was both highly
technical and ultimately discretionary (e.g. lot of arbitrariness in remedies if
perhaps ppl don’t come to court with clean hands – saw this in earlier cases)
Solution = litigants begin exploring other forms of relief associated with private
law remedies, especially applications for “declaratory” relief
o Not as technical; asking court for declaration as to whether or not the
decision is legal; if not legal, then the decision is invalid and can’t be
enforced
Problem = sometimes govt would contract out public functions in order to
devolve cost and escape judicial review
Solution = courts begin extending judicial review to private bodies that exercise
“public” functions through prerogative and declaratory relief
Whether an agency or institution that technically isn’t part of govt is nevertheless
subject to judicial review?
41
Volker Stevin NWT (1992) Ltd v Northwest Territories (Commissioner) (1994
NWTCA)
 Advisory committee revoked the applicant’s designation of being a Northern
Business and the applicant applied for an order in certiorari to quash the decision.
Govt business, especially if you are in the North, is impt and gives you most of
your revenue.
 Trial judge says purely commercial contracts dealing with procurement for goods
and services by govt not subject to judicial review but CA says this situation goes
beyond that
 Decision: CA says its not solely an exercise of contract – there is a public interest
as well (the ability to compete with other businesses)\\\\\\\\\ but agrees that pure
commercial decisions are beyond the scope of judicial review
 Not creating the membership by statute; agency says who can participate in govt
contracts; is it subject to judicial review? Or is this agency entitled to a much
larger degree of freedom bc its really in essence advising govt on how to exercise
its powers in contract? Contract powers is much more limited in terms of getting
judicial review. Court here said this is a public body exercising a public function
and has impt public consequences therefore administrative law should apply
 Do you think that public power which is delegated by contract should be
governed by private or public law principles?
 E.g. british govt is contracting out probation officers…no longer govt employees
if probation officer makes decisions you think are unfair, can you bring
application for judicial review?
 Scope of administrative law principles who is subject to them?
o I think private bodies should be governed by private law
principles…businesses become governed by business corporations act
which is still a statute created by the government and they can allow PF in
there if they want but shouldn’t all have a right to PF
Voluntary Associations
R v Halifax-Dartmouth Real Estate Board, ex parte Seaside Real Estate Ltd (1964
NSSC)
 Halifax-Dartmouth Real Estate Board expelled Seaside from membership for
various alleged breaches of the association’s rules and regulations with respect to
the listing and sale of properties. Seaside sought certiorari on the basis of failure
to give adequate notice of the charges against it.
 The Board was established to standardize the real estate business, to foster and
maintain the general development and economic growth of Halifax, and to
maintain ethical standards of the real estate profession these are matters of
interest to the community aspects of both public and private. Judge says these
are matters of interest to the community and thus the Board has a public interest
element to it.
 Decision: public interest so judicial review is available. Ability to grant
administrative remedies.
42
Ripley v Investment Dealers Association of Canada (No 2) (1991)
 Decision: certiorari could not be awarded in this case
 Court focuses on statute to see what authority is granted to the IDA. Mere
reference to the IDA in the statute and recognition of its registration requirements
does not transform the IDA into a statutory tribunal or an agent of the govt
 It is the securities commission, established by the Securities Act, that has the
power to enforce compliance with the Act, and there is no suggestion that the IDA
acts as a delegate or agent of the Securities Commission
 The IDA and its disciplinary committee are not subject to certiorari for error on
the face of the record since its authority over its members and employees of
members is derived solely from contract, and although the organization is
recognized by Statute, it does not derive any authority to discipline its members
from the Statute nor is it acting as an agent or delegate of the crown in the
exercise of its functions
 Do you think that administrative law principles should continue to apply to
probation officers whose relationship to the government is defined by contract
instead of statute? What about securities regulation? THINK FOR EXAM
 it seems like we have 2 conflicting authorities here Ripley focuses on the
statute whereas real estate and Volker focus on impact on public interest
 Characterize as public or private
 Note that these cases used a different analysis
o Look at statute
o Consider public interest
o Consider private contract
 Bottom line: a lot depends on how you characterize the nature of the decisions
being made by a particular institution. If public – likelihood of judicial review
increases. If private, prospect of judicial review decreases.
Remedies – Federal and Provincial Remedial Regimes
 Judicial review jurisdiction in Canada is divided bw superior courts of the
provinces and the Federal Court
 Usually depends on whether the source of the power or authority in question is
federal or provincial in nature
Provincial Superiour Courts
 Courts of inherent jurisdiction, which means that they have general authority to
hear all cases except those that are specifically reserved for another court created
by statute
Federal Courts
 The Federal Court and the FCA do not have inherent common law jurisdiction.
Their powers derive from The Federal Courts Act, and they can only deal with
matters specified in federal statutes
 By contrast, provincial and territorial superiour courts have jurisdiction over all
matters except those specifically excluded by statute
43

The Federal Court is the trial level court, and appeals from Federal Court
decisions are heard by the Federal Court of Appeal
-diff time limits apply depending on court you are proceeding in
Exclusive or Concurrent Jurisdiction?
 For the most part, the Federal Court has exclusive jurisdiction over judicial
review of federal boards, commissions, and tribunals. In addition, federal
administrative agencies can refer questions of law to the Federal Court for a
ruling.
 For some matters, the Federal Court and provincial superior courts have
concurrent jurisdiction, which means that a party can elect to apply in either court
Federal Courts Acts
 S.2(1) In this Act,
o “federal board, commission or other tribunal” means any body, person or
persons having, exercising, or purporting to exercise jurisdiction or
powers conferred by or under an Act of Parliament or by or under an order
made pursuant to a prerogative of the crown, other than the Tax Court of
Canada or any of its judges, any such body constituted or established by or
under a law of a province or any such person or persons appointed under
or in accordance with a law of a province or under s.96 of the Constitution
Act, 1867
 Concurrent Jurisdiction
o S.17(1) Except as otherwise provided in this Act or any other Act of
Parliament, the Federal Court has concurrent original jurisdiction in all
cases in which relief is claimed against he Crown
o (2) Without restricting the generality of the subsection (1), the Federal
Court has concurrent original jurisdiction, except as otherwise provided, in
all cases in which
 (a) the land, goods or money of any person is in the possession of
the Crown;
 (b) the claim arises out of a contract entered into by or on behalf of
the Crown;
 © there is a claim against the Crown for injurious affection; or
 (d) the claim is for damages under the Crown liability and
Proceedings Act
o can elect to proceed either in Federal Court or in provincial superior
court (eg. Charter applications, habeus corpus) consider convenience
and expertise
 Exclusive Jurisdiction
o S.18(1) Subject to S.28, the Federal Court has exclusive original
jurisdiction
 (a) to issue an injunction, writ of certiorari, writ of prohibition, writ
of mandamus or writ of quo warranto, or grant declaratory relief,
against any federal board, commission or other tribunal; and
44

Note: habeus corpus has been exclusive from this exclusive
jurisdiction (concurrent)
 (b) to hear and determine any application or other proceeding for
relief in the nature of relief contemplated by paragraph (a),
including any proceeding brought against the Attorney General of
Canada, to obtain relief against a federal board, commission, or
other tribunal
o S.18.1(1) An application for judicial review may be made by the AG or by
anyone directly affected by the matter in respect of which relief is sought
o (2) An application for judicial review in respect of a decision or order of a
federal board, commission or other tribunal shall be made within 30 days
after the time the decision or order was direct communication…[look up
on slides]
o S.18.1(3) On an application for judicial review, the Federal Court may
 (a) order a federal board, commission or other tribunal to do any
act or thing it has unlawfully failed or refused to do or has
unreasonably delayed in doing; or
 (b) declare invalid or unlawful, or quash, set aside or set…[slides]
o S.18.1(4) The Federal Court may grant relief under… [slides]
o S.18.1(5) [slides]
o S.18.2: On an application for judicial review, the Federal Court may make
any interim orders that it considers appropriate pending the final
disposition of the application
o S.18(3) The remedies provided for in subsections (1) and (2) may be
obtained only on an application …?? Look up on slide
o S.18.3(1) A federal board, commission or other tribunal may at any stage
of its proceedings refer ay question or issue of law, of jurisdiction or of
practice and procedure to the Federal Court for hearing and determination
Reza v Canada (1994 SCC)
 Reza made refugee claim and Board did not buy his evidence that he is at risk of
being tortured or killed upon return to his home country. Applied to leave to
federal court and they deny it. Brings application in Ontario superiour court for
declaratory relief. Seeking declaration that various provisions in the Immigration
Act were contrary to the Charter and the Bill of Rights. Particularly that he had to
get leave to appeal the Immigration Board’s decision – Reza thought that was
unconstitutional.
Issue: What happens when you have a Charter challenge and looking for a s.24(1) or s.52
remedy under the Constitution? Do you have to bring it in Federal Court or do you have
the option to bring it in provincial superior court?
Decision: Appeal allowed. Since Ferrier J took into account all relevant considerations in
exercising his discretion to grant a stay, there is no basis for an appellate court to interfere
with his decision. The ONCA erred in doing so.
Reasons:
 The Ontario Court (Gen Div) and the Federal Court had concurrent jurisdiction to
hear the respondent’s application but, under s.106 of the Courts of Justice Act,
any judge of the Gen Div had a discretion to stay the proceedings
45

Ferrier J properly exercised his discretion on the basis that Parliament had created
a comprehensive scheme of review of immigration matters and the Federal Court
was an effective and appropriate forum
Question: Why did Reza bring an application before the Ontario superiour court in this
case? What was the nature and purpose of his application?
 He had been denied leave to appeal and leave for judicial review. Lawyer thought
they didn’t get a fair hearing of their Charter argument
 Does the Superiour Court have concurrent jurisdiction?
Question: What did the Chambers judge decide in this case? Why did the ONCA overrule
his decision?
 Chambers judge throws out Reza’s application said they do have concurrent
jurisdiction but that they can decline the concurrent jurisdiction
o Authority to refuse – Federal Court has more expertise…has to be
convinced that the process at the Federal Court is less advantageous
 “In absence of showing appeal process is inappropriate…this court should decline
to grant relief on a habeus corpus application” habeus corpus isn’t mentioned as
being part of exclusive jurisdiction of the federal court
 Reza framed his application around habeus corpus so that it could technically
be heard by the provincial superior court
 ONCA overturns the decision. ??
o
o Abella in dissent of ONCA decision: decision must be patently
unreasonable in order to overturn it and she didn’t think it was patently
unreasonable here (to turn down what Chambers judge said) says it is
fine
Question: What are the practical consequences of the SCC decision in this case? DO you
think the SCC’s approach in the question of concurrent/exclusive jurisdiction gives
adequate guidance? DO you think the SCC’s decision is justifiable as a matter of
constitutional principle?
 SCC says superiour court judge has discretion in these cases comes from
Ontario Court of Justice Act which recognizes concurrent jurisdiction and gives
any judge discretion to stay the proceedings if they are satisfied that the applicant
has an adequate remedy in another forum
 SCC agrees with Abella’s conclusion in dissent of ONCA decision but not her
reasoning
 End result is that his application is thrown out
 Lewans leaves this with us as to whether we think its right or not
 Practical Implications understand procedures available in each forum and make
decision early on as to which forum is more advantageous for your client
o Reza framed his application around habeus corpus so that it could
technically be heard by the provincial superior court
Alberta Rules of Court consider time extensions, limitation periods
3.15(1): An originating application must be filed in the form of an originating application
for judicial review if the originating applicant seeks from the Court any one or more of
46
the following remedies against a persons or body whose decision, act or omission is
subject to judicial review:
 (a) an order in the natures of mandamus, prohibition, certiorari, quo warranto or
habeas corpus;
 (b) a declaration of injunction
(2) Subject to rule 3.16, an originating application for judicial review to set aides a
decision or act of a person or body must be filed and served within 6 months after the
date of the decision or act…
3.16:
3.18(1) An originating applicant for judicial review who seeks an order to set aside a
decision or act must include in the originating application a notice in Form 8, addressed
to the person or body who made or possess the record of proceedings on which the
decision or at sought to be set aside is based to send the record of proceedings to the court
clerk named in the notice
(2) The notice must require …
(3) The Court may add to, dispense with or vary anything required to be sent to the court
clerk under this rule.
3.24(1) gives court broad remedial powers
Last Class:
 Remedies
o Concurrent and exclusive jurisdiction
 Are you bringing your application for judicial review in Federal
Court or in Superiour Court? impt bc according to Federal
Courts Act, Fed Court has exlcusive jurisdiction over many of the
traiditonal remedies in so far as federal boards, or commissions are
concerned
 Habeus Corpus provincial superiour courts have jurisdiction to
grant this (wrt someone being detained for example)
o Provincial superiour courts vs Federal Court
o The Federal Courts Act
o Reza: when a superiour court should decline to exercise its jurisdiction
over a matter
o Alberta Rules of Court: disclosure of the record; protecting the record is
something you should always have in mind very early on in administrative
review process



Mandamus
Stays of Proceedings
o When do you need to apply for a stay if you are applying for judicial
review?
o Look at cases for applications for stay in context of Constitutional
challenge
Injunctions in Aid of the Administrative Process
o Sometimes you’re asking court to intervene even though administrative
process hasn’t been fully played out yet
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Mandamus – Compelling someone to do something; usually do it where ADM is
refusing to take jurisdiction over a matter
[pg 1061]
 Karavos v City of Toronto
 Mandamus is appropriate to overcome the inaction or misconduct of persons
charged with the performance of duties of a public nature. Before the remedy can
be given, the applicant…must show:
o A clear legal right to have the thing…done, and done in the manner and by
the person sought to be coerced;
o The duty whose performance it is sought to coerce by mandamus must be
actually due an incumbent upon the officer at the time of seeking the relief
and the writ will not lie to compel the doing of n act which he is not yet
under obligations to perform;
o The duty must be purely ministerial in nature, “plainly incumbent upon an
officer by operation of law or by virtue of his office, and concerning
which he possesses no discretionary powers;
o There must be a demand and refusal to perform the act which it is sought
to coerce by legal remedy
 Limits on remedy of mandamus – must be duty of a public nature
Stay of Proceedings: The Federal Courts Act
 S.18.2 On an application for judicial review, the Federal Court may made any
interim orders that it considers appropriate pending the final disposition of the
application
o fed court has power to issue a stay of proceedings until your application
for judicial review is assessed
Stay of Proceedings: AB ROC
 3.23(1) The court may stay the operation of a decision or act sought to be set
aside under an originating application for judicial review pending final
determination of the originating application
 Despite subrule (1) no order to stay is to be made …[look up on slides]
Remedies: Interim and Injunctive Relief
Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd (1987 SCC)
Facts: Union applied to Manitoba Labour Relations Board for the imposition of a first
contract. In reply, the employer sough a declaration that the provisos of the Manitoba
Labour Relations Act authorizing such applications violated the Canadian Charter of
Rights and Freedoms. In the proceedings, the employer sough a stay of further action by
the board until the court disposed of the Charter challenge. Superior court refused stay.
COA allowed appeal. AG then appealed to SCC. Union applies to be certified bargaining
agent. Union is certified and applies to Labour Relations Board to impose terms for an
initial contract. Administrative decision-maker sees of an issue. Employer makes
application challenging constitutionality of provisions. Employer brings action in
provincial superior court to declare certain provisions of the Labour Relations Act
unconstitutional.
48
Issue: Should stay of proceedings be given (to temporarily staying the imposition of the
initial contract) until that constitutional challenge can be litigated fully?
Decision: Appeal allowed and stay of proceedings ordered by Manitoba COA set aside.
Public interest weighed in favour of NOT granting a stay of proceedings based on 3rd
element of the test.
Reasons:
Question: On what grounds did the employer seek to challenge the Labour Relations Act
in this case?
 Made application saying provisions of the Act were unconstitutional
 S.2(b) - Freedom of expression
 S.2(d) Freedom of association you don’t have to be a member of the union but
you have to pay union dues so this infringes this right
 S.7 – Liberty and Security of the Person freedom of contract argument and idea
that you would impose collective bargaining agreement amounts to serious stateimposed psychological stress
Question: What practical difference, if any, is there between the “prima facie case” and
“serious question” thresholds? Which threshold did the SCC adopt in this case?
 SCC relaxes threshold to serious question
 Should motions judge have refused a stay of proceedings here?
 Court seeks to determine when a superiour court judge should grant a stay of
proceedings
 Old test was that you had to show a strong prima facie case on the merits…court
here said that is too high and lowered threshold
 3 prong test:
o (1) there must be a serious question to be tried (as long as issues or cause
of action isn’t frivolous or vexatious – very low std)
o (2) you will suffer irreparable harm if not granted a stay of proceedings
o (3) balance of convenience take into account the public interest as well
as interest of parties…does public interest weigh in favour or against a
stay of proceedings?
 practical difference = difference in degree wrt std of proof; prima facie – must
show all elements of your claim are well ground in law and fact; serious question
– must simply show that your action is not frivolous and vexatious
Question: What is irreparable harm? Why is it a requirement for a stay of proceedings?
 It is something that can’t be compensated through an award of money damages
 If you will only suffer a monetary loss, they will grant something different than a
stay of proceedings
Question: What factors should one consider when attempting to determine whether the
“balance of (in)convenience” requires a stay of proceedings? Do you think the public
interest is a legitimate consideration in this context? If so, how much weight should the
court ascribe to the public interest as opposed to the parties’ interests?
 Leaves this with us
 Must take public interest into account
 Public interest weighs in favour or against proceedings
Question: How did the court assess the balance of convenience in this case? Did it grant
the stay of proceedings? Why or why not?
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
Public interest: that we try to make this situation normalized as soon as possible;
reduce prospect for open conflict; focus parties energies on getting back to work
 This element of the test of VERY IMPT – think about how to put facts into
situation that is in your client’s interest
Application of Test for Granting Stay of Proceedings:
 Serious issue to be tried: constitutional arguments; court determines there is
enough here to determine that the claim is not frivolous and vexatious; the Charter
argument is not crazy
 Irreparable Harm: in this case, wanted to impose initial contract/bargaining
agreement – does this satisfy the requirement of irreparable harm? Here, the court
is satisfied on the facts that irreparable harm would ensue. [pg 1072] may give
union too much bargaining strength, may give a contract that union would not
have been able to negotiate; court is satisfied here
 Balance of Convenience: weighs in favour of the collective bargaining agreement
due to public interest. Why? See above.
RJR MacDonald Ltd v Canada (AG)
Requirements for a stay of proceedings in cases involving constitutional challenges to
enabling legislation:
 1. Applicant must established that the constitutional challenge “is not frivolous or
vexatious; in other words, that there is a serious question to be tried”;
 2. Applicant must establish that failure to grant a stay of proceedings will result in
“irreparable harm”, which cannot be compensated by money damages;
 3. Applicant must establish that the balance of convenience, which includes
consideration of the public interest, weights in favour of a stay of proceedings
o try to explain why your client’s interests are consistent with the public
interest
“Public interest” includes both the concerns of society generally and the particular
interests of identifiable groups
“The test [for demonstrating irreparable harm to the public interest] 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 form the restraint of that action”
 allows admin agencies to be proxies for public interest based on 3rd factor
 if public interest weights in favour of not granted a stay, you have an uphill battle
on the other parts of the test and would be quite hard to get one
Injunctions in Aid of the Administrative Process
 Problem: what happens if the enabling legislation does not empower an
administrative agency to make interim rulings while an application is pending
before it?
 Solution: apply for interim order forma court of inherent jurisdiction
 Usually enabling legislation grants ADM to give interim relief STEP 1: look to
enabling legislation to see if ADM has been granted this power if ADM has
power to do this, no need to go to courts for this. If ADM does NOT have that
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power or refuses to exercise it, then you have to apply to the court for an interim
injunction
Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation
v Canadian Pacific Ltd (1996 SCC)
Facts: Wants to change the work schedules by requiring employees to work on Sundays.
This changes employement relationship. Union objects and files a grievance under the
collecting bargaining agreement. Dispute about whether there was anything in agreement
that prevented this which was being litigated. In the meantime, the employer was going to
impose these changes.
Issue: Whether the BC Supreme Court had jurisdiction to award an interlocutory
injunction to restrain an employer form implementing a change to work schedules
pending the outcome of the arbitration of a union grievance brought under the collective
agreement. Is the union entitled to an injunction to prevent the imposition of these new
work schedules under these circumstances?
Decision: The absence of a cause of action claiming final relief in the Supreme Court of
BC did not deprive the court of jurisdiction to grant an interim injunction. SCC said yes,
you can get the injunction.
Reasons:
Question: What is the source of the court’s power to grant an injunction in this case?
 Legislation dealing with inherent jurisdiction of provincial superiour courts it’s
an equitable remedy that prov superiour courts have exclusive jurisdiction over
 S.36 of Law and Equity Act (statute from BC) statutory source for this power
 So look to statute for power!
 Lewans says inherent common law jurisdiction as well because of their inherent
jurisdiction as a superiour court (unless court expressly excludes it)
Question: Why did the employer argue the court could not grant an injunction in this
case? Did the SCC accept or reject that argument?
 Argues that power of granting interim relief can only be exercised when there is a
cause of action and there isn’t one here SCC rejects this argument The
absence of a cause of action claiming final relief in the Supreme Court of BC did
not deprive the court of jurisdiction to grant an interim injunction
Guelph (City) v Soltys (2009 ONSC)
Facts: Property owners in the city have developed a plan for urban development. Taking
land and converting it for residential and commercial usage. Municipal Planning process
had already done assessments on this land and it had consulted with the province as well.
While this process is ongoing, a group opposed to the project finds a dead salamander in
the area and applies for an injunction to prevent this development from proceeding.
Issue: The Jefferson Salamander is a “threatened species” within the meaning of the
Endangered Species Act, 2007. What effect, if any, this has on the right of the City of
Guelph to proceed with the development of a project known as the Hanlon Creek
Business Park? Are the interested citizens entitled to an injunction to prevent the
construction from proceeding in the short term?
Decision: Injunction granted to prevent further work for 30 days to give Minister enough
time to decide whether to make an order pursuant to s.28 of the Act. Court is willing to
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intervene and grant injunction but not going to do it indefinitely. Just to give enough time
for environmental assessment to take place
Reasons:
Question: Why did the defendants seek an injunction in this case?
 If construction proceeds, then the whole battle is lost
Question: What test did the court apply to determine whether to grant an injunction? Why
did it limit the injunction to a 30 day period?
 Apply RJR Test:
o 1. Serious question to be tried: whether or not the Jefferson Salamander is
an endangered species and whether court should be exercising its power in
order to protect this endangered species Court is satisfied on this
o 2. Irreparable Harm: Once you lose the Jefferson Salamander, it’s gone
forever Court said this is made out
o 3. Balance of Convenience: yes in public interest
 only giving enough time for environmental assessment to take place
*ppl that don’t have a property interest or don’t even live by it but have a serious issue,
the court is willing to entertain an application for an injunction so this is an interesting
case
** Remember Dore this remedy is discretionary (30 days) and should be
assessed on reasonableness standard!!
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